Master Customer Agreement
THIS CLEAREDIN MASTER CUSTOMER AGREEMENT GOVERNS YOUR RIGHTS OF ACCESS AND USE OF THE SOLUTION AND DELIVERABLE ASSOCIATED WITH ANY SERVICES MADE AVAILABLE TO YOU BY CLEAREDIN, INC., A DELAWARE CORPORATION with a principal place of business at 1190 MIRALOMA WAY, STE P, SUNNYVALE, CA 94085 (“CLEAREDIN”).
THIS AGREEMENT IS ENTERED INTO BETWEEN CLEAREDIN AND THE CUSTOMER (DEFINED BELOW) AND IS EFFECTIVE ON THE DATE YOU ASSENT TO AN ORDER OR PLACE A PO TO PURCAHSE ACCESS THE SOLUTION OR OTHERWISE USE OR ACCESS THE SOLUTION (“EFFECTIVE DATE”). THE “CUSTOMER” SHALL MEAN THE ENTITY LISTED ON THE WEB INTERFACE AND/OR ORDER REFERENCING THIS AGREEMENT. CLEAREDIN AND CUSTOMER MAY BE REFERRED TO HEREIN AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR OF AN ENTITY NAMED ON THE WEB INTERFACE AND/OR ORDER, YOUR ASSENT TO THESE TERMS WILL BE DEEMED TO BE THE ASSENT OF THAT ENTITY YOU REPRESENT. YOU AND THE CUSTOMER, REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO, BIND THE CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS NOT OTHERWISE EXECUTED A WRITTEN AGREEMENT WITH CLEAREDIN, THE CUSTOMER WILL BE NOT BE AUTHORIZED TO USE OR ALLOW ANY USER TO ACCESS OR USE ANY PART OF THE SOLUTION AND/OR SCHEDULE OR ACCEPT ANY SERVICES TO BE PROVIDED BY CLEAREDIN. CLEAREDIN’S LICENSES GRANTED HEREIN AND OBLIGATIONS TO DELIVER ANY SERVICES IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS OTHER THAN A SIGNED WRITTEN AGREEMENT BETWEEN THE PARTIES; IF THESE TERMS ARE CONSIDERED AN OFFER BY THE CUSTOMER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
BY USING, DOWNLOADING, AND/OR ACCESS THE SOLUTION (OR BY ALLOWING ANY USER TO DO THE SAME), THE CUSTOMER AGEES TO BE BOUND BY THESE TERMS, UNLESS A SEPARATE WRITTEN AGREEMENT HAS BEEN EXECUTED. IF THE CUSTOMER HAS SEPERATELY EXECUTED A WRITTEN AGREEMENT, THEN THE TERMS OF THE WRITTEN AGREEMENT WILL CONTROL INSTEAD OF THESE TERMS.
CUSTOMER AND CLEAREDIN AGREE AS FOLLOWS:
- Certain Definitions . For purposes of this Agreement, the following definitions apply:“System Data ” means the data or information scanned or collected by the Solution as part of the normal functionality of the Solution in connection with the monitoring of User Accounts and systems onto which the Solution is deployed as contemplated herein. For Clarity, System Data includes any and all content scanned or otherwise collected from the User Account (e.g. content of communications (including attachments and/or links contained within the content), shared files, communication headers, SMTP path details, host IP address, host name). Notwithstanding anything else herein, System Data specifically excludes Aggregated Threat Analytics which may be derived from System Data.
- “Affiliate” means any entity Controlling, Controlled by or under common Control with a party.
- “Agreement” means this Master Customer Agreement, including all the attachments and exhibits hereto, any Statement of Work referencing this Agreement, and any terms incorporated herein by reference.
- “Aggregated Threat Analytics” means intelligence, aggregated patterns, machine learning, aggregated statistical information and data that allow the Solution to better detect and/or analyze, potential anomalies, attacks, Phishing, fraud, credential theft, ransomware, intrusions or bombing, viruses, malware, data leakage, account takeovers or other such malicious activity, code, or transmissions and that may be learned or otherwise derived or obtained by Solution as part of the normal functionality of the Solution, including any information or data derived from System Data which may be shared anonymously without reference to any specific Customer or User; This includes information, data, patterns, intelligence which is derived from the community of users of the Solution which may be used to enhance the Solution’s capabilities and enable the Solution to better detect and analyze, as relevant, potential anomalies, attacks, Phishing, fraud, credential theft, ransomware, intrusions or bombing, viruses, malware, data leakage, account takeovers or other such malicious activity, code, or transmissions.
- “Authorized Reseller” means any authorized reseller of ClearedIn Solution who validly sells ClearedIn’ products or services, subject to the terms and conditions of this Agreement.
- “Control” and its grammatical variants means (i) a general partnership interest in a partnership, (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
- “Documentation” means the written and/or electronic end user or technical documentation pertaining to the Solution that is provided by ClearedIn to Customer together with the delivery of the Solution.
- “Internal Business Purposes” means the access and use of the Solution by Customer (and any Customer Users) on behalf of and for the benefit of Customer or Customer Affiliates, solely for the purposes of Customer’s or Customer Affiliates’ exclusive internal use and benefit as permitted hereunder.
- “License Parameter(s) ” means any factor that serves as a basis for calculating the amount of fees payable by Customer for a license to the Solution as identified in the Order, including, for example, where relevant: the number of or types of User Accounts managed or monitored by the Solution and/or any other measurement/parameter identified in the Order.
- “Order” means an ordering document that identifies the commercial terms of the purchase, namely, for example, the ClearedIn’s products and/or services ordered , the applicable License Parameters, the Subscription Term, and any pricing and payment terms relating to the same (each as relevant). Orders may be direct between ClearedIn and Customer or indirect via an Authorized Reseller of ClearedIn. Multiple Orders may apply if additional licenses, products, or services are purchased, provided that, unless expressly stated otherwise, terms specified in an Order shall be relevant only to that Order.
- “Services” means any ancillary professional services to be delivered by ClearedIn personnel to Customer which are outlined the Order or Statement of Work, e.g. set up, configuration, implementation, training etc. For clarity, Services does not include standard Support and Maintenance Services, which are separately defined below. Also, for clarity, ClearedIn does not perform any work for hire services for any Customers, all Services provided or offered are related to set up, configuration, implementation of Solution or training.
- “Solution” means ClearedIn’ proprietary solution identified in the relevant Order, delivered as a hosted service, together with any related Documentation, APIs, plug-ins, add-ons, connectors, copies, Upgrades and/or modifications to any of the forgoing provided or otherwise made available to Customer hereunder.
- “Statement of Work” means any document provided by ClearedIn outlining the Services to be delivered by ClearedIn, if any.
- “Subscription Term” or “License Term” means the term of the license granted with respect to the Solution as identified on the relevant Order, or if no term is specified then one (1) year. For clarity, the Subscription Term shall be subject to the termination rights specified herein.
- “Third Party Services” means any third party software, technology, or service (including the related APIs, plugins, connectors provided by such third party partners) which are integrated with or interoperate with the Solution, including services relevant to the User Accounts monitored by the Solution.
- “Upgrades” means error corrections, bug fixes, software updates and software upgrades to the Solution and improvements to the infrastructure of the Solution that are released or made available during the relevant Subscription Term and made generally available by ClearedIn to other ClearedIn enterprise customers purchasing a license to the relevant Solution.
- “User” or “Customer User” means any individual authorized by Customer (or any Customer Affiliate or contractor) to access and/or use the Solution on behalf of Customer (and/or Customer Affiliate(s)). Customer may designate certain “administrative” user(s) of the Solution. Administrative Users are assigned by the Customer and can manage and/or configure the Solution on behalf of the Customer.
- “User Accounts” means any account which is to be monitored by the Solution, including digital channels to communicate and collaborate, for example, where applicable and relevant, email, file sharing, messaging, or any other accounts integrated with Solution in a manner to enable monitoring of the account.
- Ordering; Solution Delivery; License Start Date. Customer may place an order for the Solution or Services (including renewal orders) by executing an Order identifying the specific Solution or Services ordered either with ClearedIn or an Authorized Reseller. The Solution ordered shall be made available to Customer electronically promptly after the relevant Order is executed and becomes effective. The start date of the Subscription Term for any subscription to the Solution identified in a particular Order shall be the start date identified on the relevant Order, and if no start date is identified, then, the start date shall be the effective date of the relevant Order.
3.1 Access and Use Rights . Subject to the terms and conditions of this Agreement, during the Subscription Term, ClearedIn grants to Customer a non-exclusive, non-transferable and non-sublicensable license to allow Customer Users to access and use the Solution on behalf of Customer or Customer Affiliates, provided such access and use is .solely for Internal Business Purposes, and solely in accordance with the relevant Documentation and the use restrictions and License Parameter(s) stated in this Agreement and the relevant Order.
3.2 Evaluation Copies of any ClearedIn Solution. For any pre-release, beta, trial or evaluation versions of ClearedIn proprietary software made available to Customer, the following terms shall apply (notwithstanding any contrary term specified in any other sections of this Agreement): (i) the proprietary solution made available shall be deemed “Solution” hereunder and any access or use of such Solution shall terminate at the end of the evaluation period identified by ClearedIn or ClearedIn’ Authorized Reseller (or if no period identified then in thirty (30) days from the date access to such Solution is provided) and access and use of such Solution by Customer or Customer Users shall be for the limited purpose of evaluating the relevant Solution and establishing Customer’s desire to purchase subscriptions to Solution or providing any feedback desired, as relevant; and (ii) such Solution is provided “As Is” without any warranty or indemnity of any kind; and (iii) Customer shall not be entitled to any Support and Maintenance Services or any Upgrades with respect to such Solution unless a subscription license is later purchased; and (iv) ClearedIn and/or the Authorized Reseller may terminate the subscription to such Solution with written notice to Customer and, if relevant, require Customer to promptly discontinue any further access and use of the Solution.
- Restrictions. Except as otherwise expressly permitted under this Agreement, Customer shall not (and shall not authorize or permit any third party including any Users to): (i) copy, use or access the Solution or any portion thereof in excess of or beyond the License Parameters and/or other restrictions/limitations described in this Agreement or the Order; (ii) use the Solution together with any unauthorized accounts or products (i.e. products not identified in Documentation); (iii) modify or create derivative works of the Solution or attempt to reverse engineer or decompile, decrypt, disassemble or otherwise reduce any components of the Solution to human-readable form, except and only to the extent any foregoing restriction is prohibited by applicable law; (iv) use the Solution (including the user interface of the Solution) to create a program or a set of programs similar or identical to the Solution, using any elements or functionalities of the Solution to do so; (v) use the Solution in any way that is unlawful or in violation in any applicable laws or third party proprietary, property or personal rights, or allow Solution to be used in any embargoed country or region; (vi) using the functionality of the Solution, make available any content or data available to ClearedIn which Customer does not have appropriate permissions or authorization to make available (vii) distribute, sell, license, or otherwise provide or allow access to the Solution to third parties other than Users ; (viii) use or permit the Solution to be used to perform services for third parties other that Affiliates, whether on a service bureau, SaaS, time sharing basis or otherwise; (ix) install or use the APIs, connectors, add-ons, or plugins of the Solution on computers or systems which are not owned or controlled by Customer or its Affiliates; (x) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Solution without the prior written approval of ClearedIn; (xi) access or use (or attempt to access or use) another user’s account without permission, or solicit another user’s login information, or make any attempts to do so; (xi) “frame” or “mirror” any portion of the Solution; (xii) use any robot, spider, site search/retrieval application, machine or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Solution; (xiii) probe, scan or test the vulnerability of the Solution, or breach the security or authentication measures of the Solution, or take any intentional action that imposes an unreasonable or disproportionately large load on the infrastructure of the Solution, such as a denial of service attack;(xiv) alter or remove any proprietary notices or legends contained on or in the Solution; (xv) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Solution, including without limitation any such mechanism used to restrict or control the functionality of the Solution or (xvi) initiate any unauthorized phishing campaigns or send bulk or unsolicited or unlawful messaging using the Solution. For the avoidance of doubt, all restrictions specified herein with respect to Solution apply to all components (including Documentation). There are no implied licenses granted by ClearedIn under this Agreement. It is the responsibility of the Customer to ensure that all User(s) are aware of the terms and conditions (including the restrictions) of this Agreement. Customer agrees that all actions or inactions of User(s) shall be deemed an action or inaction by Customer and that Customer shall be liable and responsible for any action or inaction of the User(s) which is in violation of the terms of this Agreement.
- Support and Maintenance . As part of its purchase of a subscription license to Solution, Customer shall be entitled to receive Support and Maintenance Services. “Support and Maintenance Services” shall mean the standard support and maintenance services delivered by ClearedIn in connection with the relevant subscription license to the Solution ClearedIn will deliver Support and Maintenance Services in accordance with ClearedIn’ support and maintenance policy found at https://s3.amazonaws.com/supportpolicy.clearedin.com/ClearedInSupportPolicy.pdf (or such updated URL provided by ClearedIn from time to time) (“Support and Maintenance Policy”). For clarity, such Support and Maintenance Services are included as part of the license purchased to the Solution and includes Upgrades to the Solution as they become generally available to other ClearedIn customers during the relevant Subscription Term. ClearedIn may make changes to this policy with thirty (30) days’ notice to Customer (via the support portal or otherwise), provided such change is in connection with a standard change made to its then-current standard support and maintenance terms and there is no material degradation of the support offering.
- Ancillary Services. If Customer orders Services (e.g. set up, configuration, implementation, training, or other consulting professional services related to assisting Customer in the use of the Solution), then such Services shall be delivered subject to the terms and conditions of this Agreement and the relevant Order or any other Statement of Work document provided or made available by ClearedIn. For clarity, no work for hire shall be provided hereunder and the only Services delivered hereunder shall relate to use of the Solution by Customer. Customer agrees that it will reasonably cooperate with ClearedIn in connection with the performance of such Services under this Agreement by making available such personnel, access and information as may be reasonably required for ClearedIn to perform Services. If applicable, Customer will reimburse ClearedIn (either directly or through the Authorized Reseller, as relevant) for reasonable and pre-approved travel and lodging expenses as incurred by ClearedIn in connection with any Services. Services will be delivered during the timelines identified in the Order or Statement of Work, provided that if no timelines are specified then Services will be only be delivered for one year from the Order effective date (“Delivery Period”). If Customer does not request delivery of the Services ordered within such Delivery Period, then Services will be deemed delivered at the end of the relevant Delivery Period.
- Fees; Payment Terms; Updating License Parameters.
7.1 Fees; Payment Terms. Customer will make all payments identified on the Order in accordance with its terms, or if no payment terms are included, then within thirty (30) days of the invoice date. Unless otherwise stated herein , orders are non-cancelable, and all payments are non-refundable, and payments are not subject to any deduction or set-off. If the Order is placed indirectly through an Authorized Reseller, then the Order entered into with the Authorized Reseller shall identify only the commercial terms of the transaction, including the subscriptions to the Solution or services ordered, the relevant Subscription Term and Licensing Parameters (as relevant), the fees due, and payment terms relevant to the Order. If the Order is entered into directly with ClearedIn, then unless otherwise outlined in the Order, the following payment terms shall also apply: (i) ClearedIn invoices shall be paid by Customer within thirty (30) days of the effective date of the relevant Order, unless other payment terms are agreed to in the Order; (ii) all amounts are payable in U.S. Dollars; (iii) all fees outlined in the Orders are exclusive of all taxes, duties, shipping fees, and similar amounts, all of which are Customer’s responsibility (excluding taxes based on ClearedIn or its Authorized Reseller’s income ); and (iv) if Customer is in default of making any payment due to ClearedIn, then ClearedIn may, without prejudice to other remedies available, assess a late payment charge, at the lower rate of 1.5% per month, or the maximum rate under applicable law, and/or suspend delivery of any product or service hereunder.
7.2 Updating License Parameters In connection with the use of or access to the Solution, Customer shall not exceed the License Parameters agreed to as part of the Order . At any time during the Subscription Term, if Customer desires to increase the relevant License Parameters, or if the parties learn that Customer’s actual usage (“ Actual Usage ”) exceeds the relevant License Parameters paid for by Customer (“ Purchased Usage ”), then Customer shall notify ClearedIn ( and/ or the Authorized Reseller) and pay the incremental fees due for the relevant period of Actual Usage , and after the relevant Order is placed , the relevant License Parameters shall be amended to reflect this change. The Parties may track Actual Usage and ClearedIn (and/or the relevant Authorized Reseller) may invoice C ustomer if it learns of any shortfalls, i.e. that the Actual Usage is above the Purchased Usage . Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional usage on any subscription will be based on the then current pricing charged to the Customer in the relevant Order (not including any special discounts that are not relevant to overage usage, e.g. one time marketing discounts, etc.) and fees shall be charged for the balance of the term so that the licenses may be coterminous with the existing licenses
- Ownership. The Solution is licensed on a subscription basis and not sold. As between Customer and ClearedIn, ClearedIn and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Solution, ClearedIn’s Confidential Information, and all copies or portions thereof, and any derivative works thereof (by whomever created). Customer is not required to provide any feedback or suggestions for improvement to or updates to the Solution, however, to the extent provided, all suggestions or feedback relating to the Solution which provided by Customer, (or any Customer Users) to ClearedIn shall be ClearedIn’ property, and Customer hereby assigns the same to ClearedIn.
9.1 “ Confidential Information ” means any non-public data, information and other materials regarding the products, technology, software , services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or made available by one party (“ Disclosing Party ”) , either directly or indirectly through third parties, to the other party (“ Receiving Party ”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The parties agree that, without limiting the foregoing, the Solution ( and any performance data, benchmark results, training materials and technical information relating thereto ) , the Documentation and , ClearedIn’ pricing information shall be deemed the Confidential Information of ClearedIn, System Data shall be deemed the Confidential Information of the Customer, and the terms and conditions of this Agreement (but not its existence) shall be deemed the Confidential Information of both parties. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information .
9.2 Duties. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder (including providing the features and services associated with the normal use of the Solution) or exercise rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to its Affiliates, and those employees , agents and contractors of the Receiving Party and those of its Affiliates who have a need to know such information for the purposes of this Agreement, provided that any such employee , agent or contractor shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such Affiliates, and their respective employee s, agents or contractor s with the terms of this Agreement.
9.3 Disclosures Required by Law. Either party may disclose Confidential Information of the other party if it is required to be disclosed by law or governmental regulation , provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure (to the extent permitted by law) and reasonably cooperates with the Disclosing Party in limiting such disclosure and ensuring confidential handling of the Confidential Information .
- Security; Compliance; System Data; Processing; Authorizations; Contact Information.
10.1 Security; Compliance. ClearedIn shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of System Data. ClearedIn shall maintain an information security management program (ISMP) that aligns with industry standards and which is designed to implement technical and organizational measures to protect System Data maintained on its systems as required by applicable laws and this Agreement and ClearedIn shall comply with such ISMP. ClearedIn agrees to implement and train its work force on its ISMP. During the term, ClearedIn shall maintain security management practices which, at a minimum, are implemented in accordance with the “Controls” and “Implementation Guidance” as defined and set out in SOC 2 certifications (or substantially equivalent industry standard certifications, which include clearly defined security responsibilities, processes for risk management, access control, authorization and administration, security design and configuration management, audit and assurance). As of the Effective Date, ClearedIn represents that it is in the process of obtaining compliance with SOC 2, Type 1 and will continue to move forward with the process to obtain a SOC 2, Type 2 certification.
10.3 Authorizations For Monitoring User Accounts and Processing System Data . Customer understands that as between the parties, Customer is responsible for and must ensure that it has lawful basis for and appropriate authorizations for monitoring the User Accounts that our monitored by Solution and for accessing, processing, making associated System Data available to ClearedIn via the Solution for processing on behalf of Customer and/or Customer Affiliates. Customer (and/or its Affiliates, as relevant) represents and warrants that, to the extent applicable, they have the appropriate legal basis for and have made all disclosures, provided all notices, obtained all consents and/or authorizations, and taken all other actions that are required under applicable laws to ensure that any such monitoring of User Accounts, interceptions or blocking of communications, and processing of System Data as contemplated hereunder by ClearedIn on behalf of Customer and/or its Affiliates (in the USA or other countries) for the purposes of performing under this Agreement (including delivery of the features or functionality of Solution or delivery of Services contemplated herein) is permitted and legal under applicable laws of the jurisdiction where such data originated and where such User Accounts are being monitored and System Data being processed.
10.4 Contact Information . Each party acknowledges and agrees that it is necessary and appropriate for the other party (and its contractors and personnel) to use the contact information of the employees and contractors of the other party for the purpose of carrying out the purposes of this Agreement and all other legitimate purposes arising out of this Agreement.
- Limited Warranty; Disclaimer
11.1 Mutual Warranties. Each party represents and warrants to the other that (a) it has the full power to enter into this Agreement and (b) this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against it, and (c) this Agreement does not contravene, violate or conflict with any other agreement of such party with any third party.
11.2 Solution Warranty. F or a period of sixty (60) days from the effective date of the relevant Order, ClearedIn represents and warrants that the Solution materially conforms to its published specifications described in the relevant end user Documentation supplied by ClearedIn. Customer’s sole and exclusive remedy and the entire liability of ClearedIn and its suppliers and licensors under this limited warranty will be, at ClearedIn’ option, repair or replacement of the Solution, or if repair or replacement is not possible, to terminate the license and refund the license fee paid by Customer for the affected Solution, provided Customer discontinues all access and ceases any further use of the Solution.
11.3 Service Levels. ClearedIn represents and warrants that will comply with the services levels identified in the Support Policy with respect to availability of the Solution. ClearedIn’ entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for ClearedIn to provide Customer the Service Credits identified in the Support Policy (if any).
11.4 Ancillary Services Warranty . F or a period of thirty (30) days from the date of delivery of any Service by ClearedIn to Customer, ClearedIn represents and warrants to Customer that such Services provided hereunder shall be professional, workman like and performed in a manner conforming to any requirements stated herein or in the relevant Statement of Work or Order (as relevant). ClearedIn’ entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for ClearedIn to re-perform the nonconforming Services, or if ClearedIn is unable to deliver conforming Services within a reasonable time, then refund any fees paid to ClearedIn for the relevant non-conforming Services (if any).
11.5 Exclusions. The express warranties specified above do not apply if the applicable Solution, or any portion thereof: (i) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation; (ii) has been altered, except by ClearedIn or its’ authorized representatives or its contractors; or (iii) is licensed, for beta, evaluation, or testing purposes. Additionally, the warranties set forth herein only apply to a warranty claim made within the warranty period specified herein and does not apply to any bug, defect or error caused by or attributable to third party solutions, products or services not supplied by ClearedIn or any changes or updates to the forgoing which cause the bug, defect, or error.
11.6 DISCLAIMERS . EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOLUTION, THE SERVICES, THE SUPPORT AND MAINTENANCE SERVICES, AND ANY OTHER (AND/OR RESULTS THEREOF) PROVIDED BY CLEAREDIN HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, CLEAREDIN DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT WITH RESPECT TO THE SAME. WITHOUT LIMITING THE FOREGOING, CLEAREDIN DOES NOT WARRANT OR GUARANTEE THAT the solution will not identify any false positives or that ANY OR ALL SECURITY ATTACKS, anomalies, phishing, fraud, credential theft, ransomware, intrusions or bombing, viruses, malware, data leakage, account takeovers or other such malicious activity, code or transmissions WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES TO CUSTOMER’S SERVERS, SYSTEMS AND/OR TECHNOLOGY BY THIRD PARTIES.
12.1 ClearedIn Indemnity . Subject to the terms of this section, ClearedIn shall defend, and indemnify and hold harmless Customer, Users, and their respective officers, directors and employees (“Customer Indemnitee(s)”) from any and all costs, expenses, losses, damages, and settlement amounts required to settle, any third party claim, suit, or proceeding (each a “Claim”) brought against Customer Indemnitees that the Solution directly infringes any valid U.S. patent or U.S. copyright, or misappropriates an valid trade secret enforceable under U.S Laws. If such a Claim occurs, or in ClearedIn’ opinion is reasonably likely to occur, ClearedIn, at its expense and at its sole discretion, may, in addition to its indemnification obligations hereunder: (i) procure the right to allow Customer to continue to use the Solution, or (ii) modify or replace the Solution or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, terminate Customer’s right to use the affected portion of the Solution and refund any license fees paid by Customer corresponding to such Solution, pro-rated over the remainder of the relevant Subscription Term. Notwithstanding the foregoing, ClearedIn shall have no obligations under this Section to the extent any Claim is based upon or arises out of: (aa) any modification or alteration to the Solution not made by ClearedIn or its contractors; (bb) any combination or use of the Solution with third party products or services not provided by ClearedIn; (cc) Customer’s continuance of allegedly infringing activity a reasonable period after being notified thereof; (dd) Customer’s failure to use Upgrades made available by ClearedIn; and/or (ee) use of the Solution not in accordance with the applicable Documentation or the terms of this Agreement. The remedies set forth in this Section constitute Customer Indemnitee(s)’s sole and exclusive remedies, and ClearedIn’ entire liability, with respect to infringement or violation of third-party intellectual property rights.
12.2 Customer Indemnity . Subject to the terms of this section, Customer shall defend, and indemnify and hold harmless ClearedIn and its respective officers, directors and employees (“ClearedIn Indemnitee(s)”) from any and all costs, expenses, losses, damages, and settlement amounts required to settle, any Claims brought against ClearedIn Indemnitees relating to (a) monitoring User Accounts or System Data as contemplated by the Parties in connection with use of the Solution; (b) System Data scanned or obtained by the Solution; (c) Customer or any Users use of the Solution for any unlawful purpose or in violation of any applicable laws or any or any third party proprietary, property, or personal rights.
12.3 Indemnification Process. Each indemnifying party’s indemnification obligations are subject to the indemnified party (i) promptly notifying the indemnifying party in writing of the Claim subject to indemnification hereunder, (ii) promptly giving the indemnifying party the right to control and direct the investigation, preparation, defense and settlement of such Claim (provided that the indemnified party shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim), and (iii) giving reasonable assistance and cooperation for the defense of same, at the indemnifying party’s reasonable expense.
- Term and Termination.
13.1 Order. Order(s) placed hereunder shall be effective as soon as executed and shall continue to be effective, until this Agreement or the relevant Order is terminated or until the relevant Subscription Term for the products and services ordered under the relevant Order expires, whichever is earlier.
13.2 Agreement. This Agreement shall be effective as of the Effective Date and shall remain in effect until terminated in accordance with these terms or until all Orders hereunder expires (the Subscription Term for all the products and services ordered hereunder expires), whichever is earlier.
13.3 Termination. This Agreement (and/or any Order placed under this Agreement) may be terminated by a party: (i) upon thirty (30) days written notice, if the other party materially breaches any provision of this Agreement and such breach remains uncured after such thirty (30) day notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days.
13.4 Suspension of Access to Solution. ClearedIn reserves the right to temporarily suspend access to or suspend provision of all or part of the functionality of the Solution at any time during the Term, if at any time the Customer, the Users, or any User Accounts monitored by the Solution are involved with any illegal activity or activity that would give rise to liability for ClearedIn or compromises or negatively effects the security, integrity or functionality of the Solution, including if the User Accounts are involved in distribution of unauthorized phishing campaigns, unsolicited bulk email or spam, hacking attempts, denial of service attacks, mail bombs or other malicious activities either directed at or originating from the Customer’s domains, Users or User Accounts monitored by the Solution .
13.5 Effect of Termination; Survival. Upon any expiration or termination of this Agreement or any Order, Customer shall destroy (or at ClearedIn’ option, return) all copies of Solution in its possession or control or otherwise deployed in connection with the Agreement (and/or the relevant Order), each as relevant . Within one hundred and twenty (120) days of the termination of this Agreement (unless a shorter or a longer period is agreed between ClearedIn and Customer), ClearedIn will remove Customer’s System Data from ClearedIn systems, provided that, ClearedIn may maintain copies of System Data for a reasonable time thereafter to comply with ClearedIn’s standard backup/disaster recovery practices, legal obligations, and contractual and business operational requirements . Sections 1 , 4 , 7 , 8 , 9 , 11 , 12 , 3 , 13.5 , and 15 shall survive any termination or expiration of this Agreement
- Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY LIABILITY ARISING OUT OF ANY VIOLATION OF A PARTY’S PROPRIETARY RIGHTS (INCLUDING A VIOLATION OF ANY LICENSE OR RESTRICTIONS STATED IN SECTION 3 OR 4 ), ANY VIOLATION OF SECTION 9 (CONFIDENTIALITY), OR ANY LIABILITY OF A PARTY ARISING OUT OF ITS OBLIGATIONS UNDER SECTION 12 (INDEMNITY):(A) IN NO EVENT SHALL CUSTOMER, CLEAREDIN, OR CLEAREDIN’ LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL DAMAGES, OR FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF BUSINESS, LOSS OF CONTRACTS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY LOSS OR DAMAGE TO DATA, OR ANY BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO THIS AGREEMENT or arising from Solution or any services delivered hereunder, UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH; AND
- (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTOMER, CLEAREDIN, CLEAREDIN’ LICENSORS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE SOLUTION, SERVICES, OR OTHERWISE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE) EXCEED THE FEES RECEIVED BY CLEAREDIN UNDER THE RELEVANT ORDER (OR IN THE CASE OF CUSTOMER’S LIABILITY EXCEED THE FEES PAID OR DUE TO CLEAREDIN OR ITS AUTHORIZED RESELLER UNDER THE RELEVANT ORDER), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE; AND
- (C) IN NO EVENT SHALL THE TOTAL LIABILITY OF CLEAREDIN ARISING FROM OR RELATING TO ANY SERVICES EXCEED THE AMOUNT OF FEES PAID OR DUE TO CLEAREDIN FOR SUCH SERVICES UNDER THE RELEVANT ORDER OR STATEMENT OF WORK, WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY.
- MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.
- 15.1 Language. This Agreement, any disputes hereunder, and all services to be provided hereunder by ClearedIn to Customer (if any) shall be conducted and provided in the English language.
- 15.2 Aggregated Threat Analytics. Notwithstanding anything else herein, Customer understands and agrees that ClearedIn (and its successors and assigns) may derive, collect, use, analyze, commercially exploit, and share Aggregated Threat Analytics for any legitimate business purposes and in compliance with applicable law. ClearedIn (and its successors and assigns) shall own and shall not be prevented from exploitation of Aggregated Threat Analytics in any way that is not prohibited by applicable law, including to improve and provide ClearedIn’ offerings and to disclose Aggregated Threat Analytics to other customers in an effort to prevent further threats. For clarity, to the extent Aggregated Threat Analytics are derived from any System Data, such information or data shall never be shared with any other ClearedIn customers in any manner that would be associated with, identify, or be tied to any Customer, Customer Affiliate, User, User Account or Customer’s or Customer Affiliate’s systems.
- 15.3 Third Party Services. ClearedIn has no control over third party providers or their technology or services and third party providers of Third Party Services may update or modify Third Party Services and create issues with interoperability or integration. Customer understands that ClearedIn is not responsible or liable for and cannot guarantee continued interoperability of, or integration with, Third Party Services at all times during the Subscription Term. Third Party Services are delivered subject to the relevant third-party agreement entered into between Customer and the third party provider, including the relevant proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the Third Party Services. Customer will address the appropriate third party provider with any issues caused by Third Party Services, and to the extent changes to Third Party Services cause errors or issues in the use of the Solution, ClearedIn agrees to use reasonable commercial effort to help the Customer and the third party provider to identify the source of the error and work with Customer (and the third party provider) to find a mutually agreeable resolution.
- 15.4 Export Law Assurances. Customer understands that the Solution are subject to export control laws and regulations. Customer may not access or otherwise export or re-export any component of the Solution or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws. None of the Solution or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that customer is not located in, under control of, or a national or resident of any such country or on any such list .
- 15.5 US. Government End User Purchasers. The Solution and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire access to the Solution and Documentation with only those rights set forth in this Agreement. Access and use of either the Solution or Documentation or both constitutes agreement by the Government that the Solution and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
- 15.6 Anti-Bribery or Anti-Corruption Laws. In carrying out activities pursuant to this Agreement, each party agrees that it shall comply with and shall not commit, authorize, or permit any action by its personnel which would violate any anti-bribery or anti-corruption laws, such as the United States Foreign Corrupt Practices Act or the UK Bribery Act or any similar relevant law or regulation .
- 15.7 Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Los Angeles county; Customer and ClearedIn hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.
- 15.8 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
- 15.9 Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF, or other electronic counterparts), with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one agreement.
- 15.10 Entire Agreement; Conflicts; Modifications, Amendments, and Waivers. This Agreement constitutes the entire agreement between the parties with respect to the license of the Solution, delivery of Support and Maintenance Services and other Services outlined in a Statement of Work or Order (where relevant). Except as expressly provided herein, this Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. T his Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned. Unless otherwise specifically set out herein, in the event of a conflict between these terms and conditions and any Statement of Work or Order, these terms and conditions shall prevail. Notwithstanding any language to the contrary therein, any Order issued by Customer or Authorized Reseller to ClearedIn shall be deemed a convenient order and payment device only and no additional or different terms stated in any Order or in any other ordering documents shall be incorporated into this Agreement, and all such terms shall be void and of no Except as expressly provided herein, this Agreement may be modified, amended, or any term or condition set forth herein waived, only by a writing executed by both parties, which identifies the terms being amended.
- 15.11 Illegality. Should any term of this Agreement be declared invalid, void or unenforceable by any court of competent jurisdiction, that provision shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
- 15.12 Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- 15.13 Assignment. This Agreement may not be assigned or transferred without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. ClearedIn may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement. All validly assigned rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
- 15.14 Notice. Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when sent by certified mail (receipt requested), or by courier, or by hand delivery to the other party to the address set forth in the signature lines of this Agreement or other such address provided by the parties from time to time. Such notices shall be deemed to have been effective on the first business day following the day of such delivery.
- 15.15 Equitable Relief . The parties agree that a material breach of this Agreement adversely affecting ClearedIn’ or its licensors’ intellectual property rights in Solution or the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
- 15.16 Independent Contractors. The parties are independent contractors for all purposes under this Agreement, and neither party shall be deemed an employee, partner, or agent of the other. Each party shall be solely responsible for any and all obligations and payments due with respect to their personnel, including any wages, salaries and amount due or payable to its personnel in connection with this Agreement. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
- 15.17 Force majeure. Except as expressly provided in this Agreement, neither party will be liable for any delay in performance due to act of God, nature or a public enemy, earthquake, flood, fire, government order, riot, civil disobedience, labor strife, or any other cause beyond causes beyond its reasonable control and without its fault or negligence, including, by way of example and not limitation, interruption of electricity, communication or transportation (a “Force Majeure Condition”). However, the party whose performance is delayed by such Force Majeure Condition will use its best efforts to notify the other party of such delay and to minimize its effect.
- 15.18 Bribery or Anti-Corruption Laws. In carrying out activities pursuant to this Agreement, each party agrees that it will comply with and will not commit, authorize, or permit any action by its personnel which would violate any anti-bribery or anti-corruption laws, such as the United States Foreign Corrupt Practices Act or the UK Bribery Act or any similar relevant law or regulation.
- 15.19 Press. ClearedIn’ may include Customer’s name and logo: (i) on ClearedIn’ website and in its marketing materials, identifying Customer as a user of the Solution and (ii) in a press release favorably publicizing Customer’s selection of the Solution.
- 15.20 Basis of the Bargain. Customer acknowledges and agrees that ClearedIn has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.