License and Hosting Definitions & Terms (updated February 2023)
For reference, the www.cerego.com product known as Cerego is licensed by Memre.ai Inc.
- “Cerego-Created Content” means customized eLearning courses, if any, created by Cerego for Customer pursuant to a mutually executed SOW.
- “Cerego Marks” means Cerego’s trademarks, trade names or logos.
- “Course Unit” means each instance of an End User registering to access a particular Customer Course on the Platform. By way of example, when the same End User re-enters the Platform for the same Customer Course that End User will be recognized based on the authorization code transmitted to Cerego for such End User and such additional access will not count as an additional Course Unit. If that End User re-enters the Platform for a different Customer Course, then it will count as a second Course Unit.
- “Customer API’s” means application programming interfaces that enables the parties to connect to and transmit between the Platform and Customer’s payment processing solution for billing management purposes.
- “Customer Course” means an eLearning course developed by Customer based on Customer lesson content.
- “Customer Marks” means Customer trademarks, trade names or logos.
- “Customer Materials” means collectively Customer API’s, Customer Courses and Customer Marks.
- “End User” means a customer of Customer who has a right to access a Customer Course on the Platform.
- “Go Live Date” means the earlier to occur of (i) the date the parties agree that the Customer may begin offering Customer Courses via the Platform or (ii) thirty (30) says from the Effective Date.
- “Platform” means Cerego’s eLearning platform for the hosting, distribution and sale (if applicable) of eLearning courses and comprising the Software and hardware and other infrastructure elements described or referred to in this Agreement, which will be private labeled by Cerego for Customer and will include the phrase “Powered by Cerego” in locations as determined by Cerego.
- “SLA” means the Service Level Agreement set forth on Exhibit B.
- “Software” means any and all computer software used by Cerego to provide the Platform.
- “SOW” means a Statements of Work, in substantially the form attached hereto as Exhibit D, which sets forth the consulting services Cerego may provide to Customer hereunder.
- Rights and Responsibilities.
- Support Obligations. Cerego will be responsible for providing Customer with support for the Platform as set forth in the SLA.
- Marketing Obligations. The parties agree to issue a joint press release within sixty (60) days of the Effective Date or within such other time as the parties may mutually agree to in writing.
- Customer Obligations.
- Delivery. Customer agrees to make the delivery of the Customer Materials to Cerego by the dates agreed upon by Customer and Cerego.
- Cerego Obligations.
- Hosting. Cerego will host the Platform in accordance with the SLA. Customer will work with Cerego as reasonably necessary to enable Cerego to host and make the Platform available as set forth herein. If at Cerego’s reasonable determination, Customer is using the Platform in a manner that creates an excessive burden or potential adverse impact on Cerego’s systems, in addition to any of its other rights or remedies, Cerego may, without liability to Customer, and after notice and an opportunity to cure of not less than ten (10) days, immediately suspend Customer’s access to the Platform until such breach is cured.
- Security. Cerego will implement commercially reasonable measures, at least equal to generally accepted standards in the IT industry, designed to help Cerego secure the content and data on the Platform against accidental, unauthorized or unlawful use, access or disclosure.
- Consulting Services. Subject to the terms and conditions of this Agreement, upon mutual agreement of the parties, Cerego may perform for Customer the consulting services described in one or more mutually agreed upon SOWs (the “Services”). The specific details of the Services to be performed will be determined on a per-project basis, and the details for each project will be described in a written SOW that is executed by both parties. Once executed by both parties, each SOW will be binding on the parties. If there is a conflict between the terms of this Agreement and the terms of the applicable SOW, the terms of this Agreement will control unless the SOW expressly states that a specific provision of this Agreement will be superseded by a specific provision of the SOW. The fees for the Services provided on any applicable SOW shall be set forth in such SOW.
- License Grant to Customer Materials. Customer grants to Cerego a non-exclusive, non-transferable and worldwide license to (a) use, reproduce and modify the Customer Materials as necessary to implement and host the Platform and (b) display, perform and otherwise make the Customer Materials available for listening and/or viewing by End Users as part of the Platform.
- License Grant to Platform. Cerego grants to the Customer a non-exclusive, non-transferable and worldwide license to grant licenses to End Users to access and use the Customer Courses on the Platform.
- License Grant to Cerego-Created Content. Cerego grants to the Customer a non-exclusive, non-transferable and worldwide license to grant licenses to End Users to access and use the Cerego-Created Content on the Platform.
- Trademark License to Cerego. Customer hereby grants to Cerego a non-exclusive, non-transferable, worldwide, limited right to use the Customer Marks in Cerego’s documentation, promotion, advertising and in the provision of the Platform in a format and style approved by Customer. Cerego will not take any action that jeopardizes Customer’s proprietary rights, or acquire any rights, in the Customer Marks, except the limited use rights specified in this paragraph. Cerego understands and agrees that use of the Customer Marks will not create any right, title or interest in or to the use of such marks and that all such uses and goodwill associated with the Customer Marks will be for the benefit of Customer. Customer may, from time-to-time, request in writing specimens of all uses of the Customer Marks to assess the level of consistency and quality of use of the respective trademark and to ensure that Cerego maintains the consistency and quality of said trademarks throughout the term of this Agreement. Customer also reserves the right to require Cerego to discontinue use of any Cerego documentation, advertising and marketing materials that specifically reference Customer or the Customer Materials that it reasonably believes will have a detrimental effect on its business. Cerego will, upon the written request of Customer, cooperate with Customer to ensure that the use of the Customer Marks conforms to Customer’s trademark policies and use guidelines as in effect from time to time.
- Trademark License to Customer. Cerego hereby grants to Customer a non-exclusive, non-transferable, worldwide, limited right to use the Cerego Mark to promote the Platform in a format and style approved by Cerego. Customer will not take any action that jeopardizes Cerego’s proprietary rights, or acquire any rights, in the Cerego Marks, except the limited use rights specified in this Section. Customer understands and agrees that use of the Cerego Marks will not create any right, title or interest in or to the use of such marks and that all such uses and goodwill associated with the Cerego Marks will be for the benefit of Cerego. Cerego may, from time-to-time, request in writing specimens of all uses of the Cerego Marks to assess the level of consistency and quality of use of the respective trademark and to ensure that Customer maintains the consistency and quality of said trademarks throughout the term of this Agreement. Cerego also reserves the right to require Customer to discontinue use of any specific reference to Cerego, the Cerego Marks or the Platform that it reasonably believes will have a detrimental effect on its business. Customer will, upon the written request of Cerego, cooperate with Cerego to ensure that the use of the Cerego Marks conforms to Cerego’s trademark policies and use guidelines as in effect from time to time. In no event will Customer have the right to use any logos or trademarks or otherwise identify the service providers without the prior written consent of Cerego.
- Fees and Payment Terms.
- Fees. Customer will remit payment to Cerego in the amounts and on the frequency set forth on Exhibit A or on the applicable SOW. The payment of the applicable fees due hereunder shall be in United States dollars. Any portion of the fees that is not paid when due (it shall be deemed due within 30 days of Customer’s receipt of invoice) will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Without limiting the generality of the foregoing, Customer acknowledges and agrees that Cerego has the right to suspend or terminate Customer’s use of the Platform in the event that Customer fails to pay any portion of the fees when due, without prejudice to other rights and remedies available to Cerego at law or in equity. Customer agrees to pay any attorney or collection agency fees in the event an attorney or collection agency is retained to collect monies past due hereunder (whether or not litigation is instituted) as well as any and all court costs.
- Audit Rights. During the term and for one (1) year thereafter (but in no event longer than required pursuant to Customer’s internal document retention policies, which, without limiting the foregoing, generally apply for seven (7) years), Customer will maintain complete and accurate records as to the sale of licenses to the Platform, Course Units (if applicable) and the fees due hereunder. Upon thirty (30) days prior written notice, during normal business hours and not more than once annually, an independent auditor retained by Cerego and approved by Customer may inspect such records subject to the auditor executing Customer’s confidentiality agreement. The records for any given period may only be audited one (1) time. The auditor will report to Cerego only the fees due and the methods used in calculating such fees. If any such inspection reveals that Customer owes Cerego additional fees, such additional fees will be paid within thirty (30) days following completion of the audit.
- Taxes. Each Party shall be responsible for any tax liability it incurs due to the performance of its duties under this Agreement.
- Proprietary Rights.
- Customer’s Ownership Rights. Customer will retain all rights, title and interest in and to the Customer Materials and any derivative works thereof, together with any and all intellectual property rights embodied therein.
- Cerego Ownership Rights. Cerego and its licensors will retain all rights, title and interest in the Platform, the Platform (excluding the Customer Materials and Customer Marks incorporated therein), the Cerego-Created Content (excluding the Customer Materials and Customer Marks incorporated therein) and the Software and technology used to provide the Platform as well as the Cerego Marks together with any and all intellectual property rights embodied therein.
- Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, identity of service providers and End Users, technology, services and products, and other information held in confidence by the other party that is either marked or identified as confidential or that is of a nature that should be considered confidential to a reasonable person (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Each party agrees that it will not disclose to any third party or use in any way, for its own account or the account of any third party, any of the other party’s Confidential Information and will take precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information, but in no event less than reasonable care.
- Exceptions. Information is not Confidential Information hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- Government Requests. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party, if legally permissible, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. Notwithstanding the foregoing, Customer may disclose Cerego’s Confidential Information to Customer’s regulatory or self-regulatory authorities or auditors in connection with routine examinations, inspections or audits without notice to or consent of Cerego or any other person.
- Remedy. In the event of any breach of Section 6.1 (“Nondisclosure of Confidential Information”), the parties agree that the non-breaching party may suffer irreparable harm for which money damages would be an inadequate remedy. Accordingly, the non-breaching party will be entitled to seek injunctive relief without the necessity of posting a bond or other security, in addition to any other available remedies at law or in equity.
- Terms of Service and Customer Data.
- Warranties and Disclaimer of Warranties.
- By Customer. Customer represents and warrants that it has all necessary rights to grant the rights and licenses to Cerego with respect to the Customer Materials, without obligating Cerego to make any payments to any third party.
- By Cerego. Cerego represents and warrants that Cerego will provide the Platform in a professional and workmanlike manner and in accordance with the SLA. Customer’s sole and exclusive remedy and Cerego’s sole and exclusive obligation for a violation of the foregoing warranty shall be as set forth in the SLA.
- Compliance With Laws. In addition to compliance with the terms of this Agreement, each party hereby represents and warrants that it will comply with all applicable laws or regulations relating to its obligations under this Agreement.
- Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTIES OF ANY KIND OR NATURE AND CEREGO DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- Limitations of Liability. EXCEPT FOR A BREACH OF SECTION 6 (“CONFIDENTIALITY”) OF THIS AGREEMENT: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY TYPE OF SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND (II) IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER EXCEED THE GREATER OF: (A) ONE HUNDRED THOUSAND DOLLARS ($100,000.00) AND (B) THE FEES PAID AND PAYABLE TO CEREGO HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
- Indemnification by Cerego. Cerego will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against Customer alleging that the Software used to provide the Platform or Cerego Marks infringe such third party’s copyright, trademarks or that Cerego misappropriated any trade secrets in the development thereof. Cerego will have no liability to Customer if any alleged infringement or claim thereof is based upon: (a) distribution or use of the Customer Materials via the Platform as authorized herein or (b) the Customer Materials or Customer Marks. The rights granted to Customer under this Section 10.1 (“Indemnification by Cerego”) will be Customer’s sole and exclusive remedy and Cerego’s sole and exclusive liability for any third party claim described in this Section or otherwise in relation to the Platform.
- Indemnification by Customer. Customer will indemnify, defend and hold Cerego harmless from and against any Losses resulting from any Action brought by any third party against Cerego alleging the infringement by the Customer Materials or Customer Marks of any intellectual property right of any third party or misappropriation of a trade secret in the development thereof or use by Cerego of the same. If Customer receives notice of an alleged claim, believes a claim is likely, or if Cerego’s use of the Customer Materials or Customer Marks hereunder is prevented by permanent injunction, Customer will, at its sole option and expense, (i) procure for Cerego the right to continued use thereof as provided hereunder; (ii) modify the Customer Materials or Customer Marks so as to be no longer infringing, but functionally equivalent; or (iii) replace the Customer Materials with equal or superior content. The rights granted to Cerego under this Section 10.2 (“Indemnification by Customer”) will be Cerego’s sole and exclusive remedy and Customer’s sole and exclusive liability for any third party claim described in this Section.
- Notice. Each party’s indemnification obligations hereunder are subject to: (a) the indemnifying party receiving prompt written notice from the indemnified party of the existence of any Action; (b) the indemnifying party being able to, at its sole option, control the defense of such Action; (c) the indemnifying party receiving full cooperation of the indemnified party in the defense thereof, at the indemnifying party’s expense; and (d) the indemnified party not entering into any settlement or compromise of any such Action without the indemnifying party’s express written permission.
- Term; Termination.
- Term. This Agreement will commence on the Effective Date and will renew for a period of one year automatically each year on the anniversary of the Effective Date unless terminated by either party as described herein.
- Termination for Convenience. Either party may terminate this Agreement upon thirty (30) days’ written notice to the other party prior to the anniversary of the Effective Date with termination to be effective upon the end of the then-current Term.
- Termination For Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) calendar days after receipt of written notice of the same.
- Effect of Termination. Upon the effective date of termination of this Agreement:
- each party will cease use of the other party’s trademarks and logos;
- except as provided otherwise in this Section 11.4, Cerego will cease making the Customer Materials available via the Platform, unless otherwise mutually agreed by the parties in writing, except that End Users may continue to use the Platform that they subscribed to prior to the effective termination date solely for the balance of the term of their respective subscription period which in any event will not exceed one (1) year;
- any and all payment obligations accrued as of the effective date of termination will remain due and payable in accordance with the original payment terms;
- all Customer Materials will be deleted or returned to Customer within a mutually agreed to period of time after termination; and
- within thirty (30) days of such termination, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
- Survival. Sections 1 (“Definitions”), 4 (“Fees and Payment Terms”), 5 (“Proprietary Rights”), 6 (“Confidentiality”), 8 (“Warranties and Disclaimer of Warranties”), 9 (“Limitation of Liability”), 10 (“Indemnification”) and 12 (“General Provisions”) will survive any termination or expiration of this Agreement.
- General Provisions.
- Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
- No Third Party Beneficiaries. Cerego and Customer agree that, except as otherwise expressly provided in this Agreement, there will be no third party beneficiaries to this Agreement.
- Governing Law. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law). Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the San Francisco, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
- Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
- Assignment. Either party may assign this Agreement in whole to an affiliate or to a successor in interest as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as otherwise set forth above in this Section, neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent (with such consent not to be unreasonably withheld) will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
- Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as stated in the preamble of this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party, to the attention: legal. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
- Relationship of Parties. Cerego is and at all times is an independent contractor in all matters relating to this Agreement. Customer and its employees are not agents of Cerego for any purposes and have no power or authority to bind or commit Cerego in any way. Customer and its employees are not and will not act as employees of Cerego for any purpose, or under any other laws or regulations, which would or might impute any obligation or liability to Cerego by reason of any employment relationship. Customer will not enter into any agreement, contract or arrangement with any government or government representative or with any other person, firm, corporation, entity or enterprise imposing any legal obligation or liability of any kind on Cerego.
- Entire Agreement; Counterparts; Originals. This Agreement, including all Exhibits attached hereto, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other response by a party will be deemed objected to by the other party without need of further notice of objection, and will be of no effect or in any way binding upon the other party. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile or scan) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of Cerego and Customer.
Service Level Agreement
Cerego will make the Platform available 99.9% of the time. The Platform Availability will be calculated using the following formula:
Potential Availability – Permitted Downtime
Actual Availability is the total number of minutes during the month that the Platform was available to Customer and Customer’s customers.
Potential Availability is the total number of minutes during the month.
Permitted Downtime includes planned service disruptions as described below and any disruptions in the availability of the Platform caused by elements outside of Cerego’s reasonable control (including, without limitation, the failure of any third party hosting providers, Customer’s own website, the Internet in general, or any emergency or force majeure event).
Planned Service Disruptions
Cerego will work to minimize the frequency and duration of any planned service disruptions or delays within reason, and when possible will schedule any disruptions at times which minimize impact on the Platform. Cerego will notify Customer at least 72 hours in advance of a planned service disruption. Planned service disruptions shall not exceed 8 hours per month.
Customer may contact the Cerego support team during the Incident Reporting Hours set forth in the chart below to report any Incident*. An “Incident” is a problem that exists within the Platform. Incidents are categorized according to the Incident Levels below.
- Tier 1: total service disruption for all users and the complete product / total inability to use the Platform.
- Tier 2: when an important function of the Platform is unavailable, resulting in operations being severely restricted but which can be worked around in some fashion.
- Tier 3: when a feature or function is not operable so the Platform cannot work as designed, but use of the Platform is not otherwise interrupted.
- Tier 4: minor defect not significant to end user operations and may actually be a new feature request.
When reporting an Incident to Cerego, Customer may initially assign an Incident Level but Cerego will have ultimate and final authority in determining the Incident Level.
*Support contacts are as follows:
Customer shall report Tier 1 Incidents to Cerego by email or phone to their main contact at Cerego. Customer shall report Tier 2, 3 and 4 Incidents to Cerego by email. In reporting an Incident to Cerego, Customer shall provide Cerego with details of the Incident, including start time and effect on end users, as well as any other information that would reasonably assist Cerego in resolving the Incident.
Response Times and Target Resolution Times Service Levels
Cerego shall initially respond to Customer to acknowledge the reporting of an Incident within the time frames set forth below and shall use reasonable commercial efforts to resolve Incidents within the Target Resolution Time set forth below.
Initial Response Time (from Cerego’s receipt of Incident report during Incident Reporting Hours)
Incident Reporting Hours
Target Resolution Time (from Cerego’s receipt of Incident report during Incident Reporting Hours)
Within 15 minutes
24 hours a day/7 days a week
Within 4 hours
Within 15 minutes
6 A.M. to 5 P.M. Pacific Time, Monday through Friday
Within 10 hours
Within 4 hours
9 A.M. to 5 P.M. Pacific Time, Monday through Friday
Within 30 days
Within 4 hours
9 A.M. to 5 P.M. Pacific Time, Monday through Friday
Within 60 days
Cerego shall use commercially reasonable efforts to provide status updates to Customer regarding the resolution of an Incident. Cerego will maintain an escalation process to aid in Incident resolution should any outstanding Incidents warrant.
If Cerego fails to meet or exceed any of the Service Levels described herein, Cerego shall:
- Notify Customer, as soon as reasonably practicable, of the failure and the likely cause;
- Provide Customer with an improvement plan as soon as reasonably practicable, setting out the action that Cerego shall take to remedy the failure and the expected date by which the Service Level shall be met; and
- work to carry out the improvement plan in accordance with its terms.
Service Level Credits
If Cerego does not meet the Service Availability set forth above, Customer will be entitled, upon written request, to a Service Level Credit to be calculated as follows:
- If Service Availability is at least 99.9% of the month’s minutes, no Service Level Credit is awarded.
- If Service Availability is 99.50% to 99.89% (inclusive) of the month’s minutes, Customer will be eligible for a credit of 5% of the fee to be paid to Cerego attributable for the month in which the outage occurred.
- If Service Availability is 99.25% to 99.49% (inclusive) of the month’s minutes, Customer will be eligible for a credit of 7.5% of the fee to be paid to Cerego attributable for the month in which the outage occurred.
- If Service Availability is less than 99.25% of the month’s minutes, Customer will be eligible for a credit of 10.0% of the fee to be paid to Cerego attributable for the month in which the outage occurred.
Service Level Credits shall be Customer’s sole and exclusive remedy in the event of any failure to meet the Service Availability. Service Level Credits will be applied to the next invoice following Customer’s request and Cerego confirmation that credits are applicable. If there are three (3) or more failures to meet the Service Availability in a given calendar quarter, then Customer may terminate this Agreement upon written notice to Cerego within thirty (30) days of the end of the applicable quarter.