Version 1.3 - May 2020
Thank you for using the Ciara Services (as defined below), a cloud-based digital assistant platform that allows users to create, manage, and use digital playbooks for (phone) conversations.
To be eligible to register for a Ciara account and use Ciara’s Services, you must review and accept the terms of this Agreement by clicking on the “I accept” button or other mechanism provided. By providing the data requested in the signup mask and clicking “I accept”, you make us an offer to enter into the Agreement based on these Terms. Before clicking “I accept”, you can review and modify the data entered in the signup mask by clicking on the relevant data field and making your modifications. We will confirm receipt of this offer by e-mail. This e-mail is not acceptance of your offer; we will accept the offer separately either by e-mail or by granting you access to the Ciara Services. Please review these terms carefully. By accepting these terms, you agree to these terms and conditions with Ciara GmbH (“Ciara”). If you do not agree to be bound by these terms, you should not click the “I accept” button.
In this agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Ciara account or using the Ciara Services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Ciara that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization). The exception to this is if that organization has a separate contract with Ciara covering one or more accounts and use of the Ciara Services, in which case that contract will govern the Ciara Services with respect to those accounts only.
The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which a) is in the public domain through no fault of receiving party; b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Ciara Services” means the cloud-based digital assistant platform, programs, functions and services provided by Ciara to you (including documentation and technical support that is made available by Ciara to you as applicable pursuant to your order in connection with such services), and subsequent updates or upgrades of any of the foregoing made generally available by Ciara.
“Customer Content” means content and other material supplied or made available to Ciara by you (or, if you are an agency, your clients for which you are an agency of record) through the use of or access to the Ciara Services.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Ciara for the Ciara Services.
You acknowledge that Ciara may change, deprecate or republish Ciara Services or feature of the Ciara Services from time to time. Although Ciara endeavors to avoid changes to the Ciara Services that are not backwards compatible, if any such changes become necessary Ciara will notify you at least thirty (30) days prior to Ciara’s implementation of any such incompatible changes to the Ciara Service of which it becomes aware.
Provision of Services. Subject to the terms and conditions of this Agreement, Ciara will make the Ciara Services available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the Ciara Services to manage Customer Playbooks and Content, If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Customer clients. Ciara will provide the Ciara Services with an availability of 95% on annual average.
Restrictions. The rights granted herein are subject to the following restrictions (the “License Restrictions”):
a) You will not reverse engineer, decompile, disassemble , modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Ciara Services; except that Customer may exceptionally decompile, disassemble or reverse engineer the Service to the extent this is required for the contractual operation of the Service, including correction of defects, or to obtain information required to make the Service interoperable with an independently developed piece of software (each a “Permitted Purpose”), but only if such contractual use, correction of defects or required information could not be obtained from Ciara upon request. Any decompiling, disassembling or reverse engineering may be done only to the extent absolutely required for the respective Permitted Purpose, and any information gathered from such actions may only be used for such Permitted Purpose, and in particular not shared with any third party except to the extent required to achieve the Permitted Purpose. Under no circumstances may the information gathered from such actions be used to develop a competing software, product or service.
b) Except for Customer Playbooks that use the Ciara Services, you will not transfer, distribute, resell, lease, license, or assign Ciara Services or otherwise offer the Ciara Services on a standalone basis, and, without limiting the foregoing, if Customer is an agency, you will only use the Ciara Services on behalf of your clients of which you are an agency of record and which have authorized you to use the Ciara Services on behalf of such clients within the scope of your other bona fide agency responsibilities for such clients;
c) You will not (nor will it permit any third party to) use Ciara Services in any manner that violates any term of this Agreement;
d) You will not otherwise use the Ciara Services outside the scope expressly permitted hereunder;
e) You will ensure that you and your users do not use temporary email addresses or share user accounts among multiple individuals or disclose their access credentials to any third party. You will, and will ensure that your users, immediately report to Ciara any breaches or suspected breaches of the aforementioned provision and any cases of actual or suspected unauthorized third party access, and you hereby permit Ciara to deactivate the accounts of any users that violate this Agreement.
Account Registration; Other Customer Responsibilities
a) To use the Ciara Services, you will be asked to create an account. As part of the account creation process, you will be asked to provide your email address and create a password. Until you apply for an account, your access to the Ciara Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account.
b) You will (i) be responsible for all use of the Ciara Services and Documentation under your account (whether or not authorized), (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and Customer Playbook(s), (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Ciara Services and Documentation and notify Ciara promptly of any such unauthorized access or use, and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Ciara Services, including as set forth in the Documentation. You will be solely responsible for your failure to maintain such equipment, software and services and Ciara will have no liability for such failure. With your permission (which may be by email or other reasonable means), Ciara may log into user accounts in order to maintain or debug the Ciara Services.
Distribution of Licenses. Ciara GmbH has the right to engage its wholly owned subsidiary Ciara Group Inc., a company organized under the laws of the state of Delaware, USA, registered with the commercial register of Delaware under file number 7487879 and with business address at 1250 Borregas Ave Ste 120, 94089 Sunnyvale, CA, USA, to perform the sale of licenses to you under this agreement. Your rights and obligations under this agreement remain unaffected.
Fees. You agree to pay the service fees, subscription fees, additional usage fees and other fees set forth in Ciara’s standard schedule of fees - as published on our website www.getciara.com and amended from time to time - in effect upon conclusion of the Agreement, or any other order forms for the Ciara Services ordered by you and accepted in writing by Ciara. Except as otherwise mutually agreed upon in writing or expressly set forth herein, a) fees are quoted and payable in U.S. Dollars and b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
Payment. Except where expressly agreed otherwise, payments are due monthly in advance. Subject to certain credit requirements as determined by Ciara, Ciara may let you pay amounts due under these Terms in arrears. If Ciara lets you do that, you will make all of the payments due hereunder within thirty (30) days of the date of the invoice. If you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then Ciara may assess and you must pay the statutory interest on overdue payments and/or Ciara may suspend your account until you pay the amount you are overdue plus the interest. Ciara’s other statutory and contractual rights and remedies remain unaffected.
Suspension. If your use of the Ciara Services exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Ciara may suspend your account without prior notice to you. Ciara will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any suspension of your account pursuant to this section.
Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by you. You will not withhold any taxes from any amounts due to Ciara, except to the extent required under mandatory local law. In the event Customer is thusly obliged to withhold taxes, Customer will inform Ciara accordingly in writing as soon as the obligation to withhold taxes becomes known, and will assist Ciara at no charge in obtaining any mitigations, exemptions and/or refunds as may be available under any applicable law, including any double taxation treaties. In particular, Customer will provide Ciara, at no charge and in a timely manner, with any and all information, document or confirmation required for Ciara to avail itself of any exemptions, mitigations or reductions of any such withholding tax under any applicable law, including any double taxation treaties.
Ciara’s Ownership Rights. As between the parties, Ciara exclusively owns all right, title and interest in and to the Ciara Services. Except for the express rights granted hereunder, Ciara reserves all rights, title and interests in and to the Ciara Services and Ciara’s Confidential Information.
Ciara Mark. Ciara hereby grants you a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Ciara (each, a “Ciara Mark”) for the purpose of promoting or advertising that you use the Ciara Services. In using Ciara Marks, you may not: a) display a Ciara Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Ciara; b) use Ciara Marks to disparage Ciara or its products or services; or c) display a Ciara Mark on a site that violates any law or regulation. Furthermore, Ciara may modify any Ciara Marks at any time, and upon notice, you will use only the updated Ciara Marks. Other than as permitted in this Section, you may not use any Ciara Marks without prior written consent. All use of the Ciara Marks will be subject to any trademark usage guidelines that Ciara may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Ciara.
Feedback. Customer may from time to time provide Ciara suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Ciara Services. Ciara will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Ciara will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Customer Content. As between the parties, the Customer Content and Customer Playbooks will be owned by you (or, if Customer is an agency, Customer’s client(s)). You hereby grant to Ciara a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the Ciara Services.
Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party other than advisors bound by a professional secret (such as lawyers and tax advisors), except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
Aggregated Information. Notwithstanding anything to the contrary, Ciara shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Ciara Services (all in a way that does not permit identification of any individual) and shall be free (during and after the term hereof) to a) use such data and other information to develop, improve, standardize, or enhance the Ciara Services and other Ciara offerings, and b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
Ciara, headquartered in Munich, Germany, follows the strict German and European data protection rules. When processing personal data, Ciara acts in accordance with the General Data Protection Regulation (GDPR). Therefore, by accepting these Terms of Service, you enter into the following data processing agreement, which allows us to process personal data according to the GDPR: Processing in Accordance with Article 28 General Data Protection Regulation (GDPR).
Ciara. To the extent any Ciara Services are provided free of charge, Ciara makes no warranties whatsoever, in accordance with applicable law. To the extent Ciara provides the Ciara Services against a fee, Ciara warrants that it will, consistent with prevailing industry standards, maintain the Ciara Services in a manner which minimizes errors in the Ciara Services and perform the Ciara Services in a professional and workmanlike manner. The Ciara Services shall be deemed defective or erroneous or otherwise non-conforming only in the event and to the extent they (i) materially deviate from the agreed Documentation, which is exhaustive, or (ii) fall short of the annual average availability set forth above.
Customer. You warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Playbooks and Customer Content in connection with the Ciara Services as contemplated herein. Without limiting the foregoing, if Customer is an agency, it warrants that it has been granted the necessary rights from its client(s) to use the Ciara Services and Customer Content related to such client(s) on such client(s)’ behalf.
Remedy. In the event of any breach of Ciara’s warranty above, Ciara will correct the relevant defect of a non-conforming Ciara Service in accordance with the agreed specifications at no additional charge to the Customer. In the event that Ciara is unable to correct a non-conforming Ciara Service within a reasonable time period to be set by Customer (which must allow for at least three attempts at rectification), Customer may claim a reduction in fees proportionate to the defect (and claim a refund of any pre-paid fees exceeding the accordingly adjusted total) or terminate the concerned Ciara Service(s) immediately by written notice, and shall be entitled to receive a refund of any pre-paid Fees for unused Ciara Service access remaining during the term of the concerned Ciara Service(s). Save for damage claims subject to the limitations of liability Section below, the foregoing remedy is Customer’s sole remedy in the event of a breach of the limited warranty above.
Customer’s Cooperation. Ciara’s obligations for breach of warranty as set forth above in this Section are conditional upon Customer promptly notifying Ciara of such breach in writing, and providing Ciara with sufficient evidence of such non-conformity to enable Ciara to reproduce and/or verify the same.
Beta services. From time to time, you may have the option to participate in a program with Ciara where you get to use alpha or beta services, products, features or documentation (collectively, “Beta services”) offered by Ciara free of charge for testing purposes. Any use of the beta services in conjunction with actual data and/or in a productive setting, is at your sole risk. These beta services are not generally available and may contain bugs, errors, defects or harmful components. You or Ciara may terminate your access to the beta services at any time.
You will defend, indemnify and hold Ciara and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of any Customer Playbooks (“Claim”). Ciara and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. Ciara reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section (to the extent permitted under applicable law, in particular the applicable laws, rules or code of civil procedure). You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Ciara in connection with any Claim. You will also be liable to Ciara for any costs and attorneys’ fees Ciara incurs to successfully establish or enforce Ciara’s right to indemnification under this Section.
Notwithstanding the provisions that follow, to the extent Ciara provides the Ciara Services free of charge, it is liable only for damages caused intentionally or with gross negligence, in accordance with statutory law.
Ciara’s liability is unlimited for damages caused intentionally or with gross negligence, personal injury and death, for breaches of a guarantee (which must be expressly designated as such in order to be a guarantee in the legal sense) and under the German Product Liability Act.
Except in the cases of unlimited liability stated above in this Section, Ciara’s liability in the event of a breach of a Cardinal Duty with simple negligence is limited to damages that are typical for cloud services agreements and foreseeable upon conclusion of the Agreement (“Typical and Foreseeable Damages”). A “Cardinal Duty” for the purpose of this Agreement is a duty the compliance with which makes the achievement of the purpose of the Agreement possible in the first place and on the compliance with which the other Party may therefore generally rely. Any other liability for simple negligence is excluded.
The amount of Typical and Foreseeable Damages is limited to the amounts Customer paid to Ciara in the twelve (12) months immediately preceding the incident creating the specific liability.
To the extent Ciara is responsible for any loss of data pursuant to the provisions above, Ciara’s liability is further limited to the amount that would be necessary to restore the lost data if regular backups had been made at least monthly.
Ciara’s no-fault strict liability for initial defects under Sec. 536a (1) of the German Civil Code is excluded.
To the extent that Ciara’s affiliates, employees or directors are held liable in connection with the Agreement, the exclusions and limitations of liability in this Section shall apply to such liability.
Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
Termination and Suspension. You may terminate your account at any time by sending an email to Ciara customer support (email@example.com). Ciara may terminate your account at any time with six (6) week’s notice; provided that to the extent you have pre-paid any fees for a specific time period, such termination for convenience will be effective no earlier than at the end of such pre-paid period. Ciara furthermore may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. Ciara may also terminate or suspend your account immediately for cause if: a) you violate (or give Ciara reason to believe you have violated) any applicable law; b) there is reason to believe the traffic created from your use of the Ciara Services or your use of the Ciara Services is fraudulent or negatively impacting the operating capability of Ciara Services; c) Ciara determines, in its sole discretion, that providing the Ciara Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Ciara Services; or d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. Either Party’s statutory right to terminate this Agreement for good cause remains unaffected. If Ciara suspends your account, Ciara will notify you accordingly. Note that no refund will be provided in the event of any suspension or termination of your account for your breach.
Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below. If Customer terminates for Ciara’s breach pursuant to the provisions above, Ciara shall reimburse any unused pre-paid fees.
Export Controls. The Ciara Services, including any software Ciara provides in connection with the Ciara Services, may be subject to applicable export control laws and economic sanctions regulations. In receiving this software or the Ciara Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and the Ciara Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Ciara Services. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any such software or other aspect of the Ciara Service without any required government authorization to any entity on a government exclusion list (e.g., the U.S. Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government, European Union or other applicable exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of Ciara’s software and the Ciara Service if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
Publicity. You agree that Ciara may refer to your name and trademarks in Ciara’s marketing materials and website; however, Ciara will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that Ciara may have any of its obligations performed through an affiliate of Ciara, provided that Ciara will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance as if it were Ciara. Ciara may assign receivables under this Agreement for purposes of debt collection and financing arrangements. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. This also applies for any waiver of the written form requirement. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Amendment. Ciara may amend or modify this Agreement – with the exceptions of the Parties’ main rights and obligations – from time to time to the extent required to comply with changes in applicable statute and/or case law, or for similarly compelling reasons, in which case the new Agreement will supersede prior versions. Ciara will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from the sending of such notice, such non-objection may be relied upon by Ciara as your consent to such amendment. Ciara will inform you about your right to object and the consequences of non-objection in such notice. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties. This also applies for any waiver of the written form requirement.
Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, the Parties will replace such provision in good faith by a provision coming as close as possible to the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
Governing Law. This Agreement will be governed by the laws of the Federal Republic of Germany, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the courts of Berlin, Germany, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you must be sent to your email or other address as set forth in your account information. Notices to Ciara must be sent to the following address: Ciara GmbH, Erika-Mann-Str. 7, 80636 München, Germany, Attn: Legal.
Entire Agreement. This Agreement comprises the entire agreement between you and Ciara with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Ciara, its agents or employees will create a warranty.
Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy (except such incidents concerning only the relevant Party’s personnel), civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
Government Terms. Ciara provides the Ciara Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If you (or any of your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Ciara Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Ciara Services were developed fully at private expense.
Interpretation. For purposes hereof, “including” means “including without limitation”. All dates and times set forth in this Agreement or any related document are in relation to Greenwich Mean Time (GMT), unless otherwise specified.