Please read these terms and conditions carefully before using the software and services offered by ClearBrain, inc. ("ClearBrain"). By signing a ClearBrain order form which references this agreement or signing up for any services offered by ClearBrain through online registration or other ordering documents (each, an "order form"), you or the entity that you represent ("Customer") are unconditionally consenting to be bound by and are becoming a party to the master license agreement consisting of this paragraph and the following terms and conditions (the "Agreement"). Provision of the services is conditioned on, and customer's access to or use of the services shall constitute, customer's assent to the terms of this agreement to the exclusion of all other terms. If these terms are considered an offer, acceptance is expressly limited to such terms. In the event of a conflict between this agreement and the order form, the order form shall control.
SERVICES AND SUPPORT
Subject to the terms and conditions of this Agreement, ClearBrain will provide Customer with access to the ClearBrain products and services ordered by Customer on an Order Form (the "Services") through the internet. The Services are subject to modification from time to time at ClearBrain's sole discretion, for any purpose deemed appropriate by ClearBrain. ClearBrain will use reasonable efforts to give Customer prior written notice of any such modification.
ClearBrain will undertake commercially reasonable efforts to make the Services available. Notwithstanding the foregoing, ClearBrain reserves the right to suspend Customer's access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to ClearBrain.
Subject to the terms hereof, ClearBrain will provide reasonable support to Customer for the Services from Monday through Friday during ClearBrain's normal business hours.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; "crawl," "scrape," or "spider" any page, data, or portion of or relating to the Services; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation).
Customer will cooperate with ClearBrain in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as ClearBrain may reasonably request. Customer will also cooperate with ClearBrain in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
Customer will designate an employee who will be responsible for all matters relating to this Agreement ("Primary Contact"). Customer may change the individual designated as Primary Contact at any time by providing written notice to ClearBrain.
Customer hereby agrees to indemnify and hold harmless ClearBrain against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although ClearBrain has no obligation to monitor the content provided by Customer or Customer's use of the Services, ClearBrain may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent.
Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third Party Services"). ClearBrain is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. ClearBrain does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party's terms and conditions.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Proprietary Information" of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it [without restriction] by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, ClearBrain may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services' performance.
Customer acknowledges that ClearBrain does not wish to receive any Proprietary Information from Customer that is not necessary for ClearBrain to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, ClearBrain may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, ClearBrain alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to ClearBrain. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights. As part of the Services, Customer may, directly or indirectly, provide ClearBrain with access to certain business, financial, and other information of Customer ("Customer Data"). Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable laws in its use of the Services. Customer represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, or (ii) any terms of service, privacy policies or other agreement applicable to Customer. Customer hereby grants ClearBrain an irrevocable, non-exclusive, worldwide, royalty-free right and license to use and exploit Customer Data in connection with providing and improving the Services; provided, however, ClearBrain will not disclose any Customer Data to a third party in a manner that violates Section 3 above. In addition, if Customer posts, uploads, or shares anything through the Services in a manner that is intended to be viewed by other users (e.g., FAQ responses, blog comments, etc.) ("User Submissions"), Customer hereby grants ClearBrain a worldwide, royalty-free, perpetual, and irrevocable license to translate, modify, reproduce, display, distribute, and otherwise act with respect to such User Submissions as reasonably necessary to enable ClearBrain to operate and improve the Services.
Except as otherwise permitted herein, ClearBrain will obtain and process content/data (including, without limitation, Customer Data) provided by or on behalf of Customer ("Content") only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If ClearBrain receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a "Claim"), ClearBrain may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify ClearBrain from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
PAYMENT OF FEES
Customer will pay ClearBrain the applicable fees as set forth on the Order Form (the "Fees"). If Customer use of the Services exceeds any capacity limitations set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage at ClearBrain's standard rates, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay ClearBrain for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the payment schedule and method of payment specified on the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice.
Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys' fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on ClearBrain's net income) unless Customer has provided ClearBrain with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
Subject to earlier termination as provided below, the term of this Agreement is as specified in the Order Form.
In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
CLIENT SOFTWARE SECURITY
ClearBrain represents and warrants that it will not knowingly include, in any ClearBrain software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, ClearBrain fails to comply with the warranty in this Section, Customer may promptly notify ClearBrain in writing of any such noncompliance. ClearBrain will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
The services and ClearBrain proprietary information and anything provided in connection with this agreement are provided "as-is," without any warranties of any kind. ClearBrain (and its agents, affiliates, licensors and suppliers) hereby disclaim all warranties, express or implied, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
LIMITATION OF LIABILITY
In no event will ClearBrain (or any of its agents, affiliates, licensors or suppliers) be liable for any indirect, punitive, incidental, special, or consequential damages, or cost of procurement of substitute goods, services or technology, arising out of or in any way connected with the use of the services or anything provided in connection with this agreement, the delay or inability to use the services or anything provided in connection with this agreement or otherwise arising from this agreement, including without limitation, loss of revenue or anticipated profits or lost business or lost sales, whether based in contract, tort (including negligence), strict liability, or otherwise, even if ClearBrain has been advised of the possibility of damages. The total liability of ClearBrain, whether based in contract, tort (including negligence or strict liability), or otherwise, will not exceed, in the aggregate, the lesser of (i) ten thousand dollars, or (ii) the fees paid to ClearBrain hereunder in the three month period ending on the date that a claim or demand is first asserted. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively "Controlled Subject Matter"), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by ClearBrain are "commercial items" and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ClearBrain's prior written consent. ClearBrain may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ClearBrain in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ClearBrain will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Santa Clara County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. The parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Santa Clara County, California, or the Northern District of California. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. Customer understands and agrees that by entering into this agreement, customer and ClearBrain are each waiving the right to trial by jury or to participate in a class action. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by ClearBrain. ClearBrain is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.