Last Updated: August 30, 2022
IMPORTANT — PLEASE CAREFULLY READ THIS TERMS OF SERVICE AGREEMENT (THIS “AGREEMENT”) GOVERNING THE ACCESS AND USE OF THE CLARRA SERVICE. This Agreement is a legally binding contract between Clarra, Inc., a Delaware corporation (hereinafter, “Clarra”) and the business, company, organization and/or or entity specified on the applicable order form (hereinafter, the “Customer”) submitted by or on behalf of such Customer to obtain access to the Clarra Service.
BY SUBMITTING AN ORDER FORM FOR THE CLARRA SERVICE, CLICKING “I ACCEPT,” AND/OR REGISTERING AN ACCOUNT FOR THE CLARRA SERVICE (AN “ACCOUNT”), AND/OR USING OR ACCESSING THE CLARRA SERVICE IN ANY MANNER: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); (2) YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT; AND (3) YOU AGREE THAT CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH CLARRA.
IF YOU AND/OR THE CUSTOMER DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE SUCH AUTHORITY, DO NOT CREATE AN ACCOUNT OR ACCESS OR USE THE CLARRA SERVICE (OR ANY PART THEREOF). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT CUSTOMER ACCEPTS THIS AGREEMENT AS SET FORTH ABOVE.
1.1. “Authorized Users” means employees or contractors of Customer who are authorized to use the Clarra Service, solely for Customer’s internal business purposes, subject to applicable Usage Parameters and otherwise in compliance with this Agreement.
1.2. “Clarra Platform” means Clarra’s proprietary practice and legal case management hosted software platform, including related downloadable software components and any and all modified, updated, or enhanced versions thereof that are made available on a remote online basis by Clarra to Customer pursuant to this Agreement.
1.3. “Clarra Service” means the Clarra Platform and any related services, content and/or materials provided and/or made available by Clarra to Customer under this Agreement.
1.4. “Customer Data” means all data and other information provided, transmitted, uploaded, and or submitted by Customer and/or any of its Authorized Users in connection with the use of the Clarra Service. “Customer Data” does not include Operational Metrics.
1.5. “Documentation” means Clarra’s then-current technical user manuals, documentation, knowledgebase, and/or other materials for the use of the Clarra Platform made available to Customer by Clarra.
1.6. “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
1.7. “Active Matter” is the information related to a single legal matter or project created on the Clarra Platform for which a Closed Date has not been set.
1.8. “Operational Metrics” means anonymized statistics, metrics, analytics, and data regarding the performance, operation, control, management, and security of the Clarra Platform that Clarra collects in connection with the use of the Clarra Service by Customer and its Authorized Users.
1.9. “Order Form” has the meaning given to such term in Section 2.1.
1.10. “Usage Parameters” means the maximum number of Active Matters, permitted files, data storage, datausage, users, and seats for the use of the Clarra Platform specified on the applicable Order Form(s) and any other parameters specified in the applicable Documentation, Order Form(s), or in writing by Clarra regarding the scope of use of the Clarra Service.
2. ACCESS AND USE OF CLARRA SERVICE
2.1. Subscriptions. Clarra will provide Customer access to the Clarra Service on a subscription basis in accordance with the plan purchased by Customer from Clarra (the “Subscription”) specified in the applicable written or electronic order form entered into between Clarra and Customer (each, an “Order Form”). Each Subscription shall begin on the date Customer obtained the Subscription, or such other date specified by Clarra in writing, and continue for the applicable subscription period (e.g., monthly or annually) specified in the applicable Order Form (the “Subscription Term”). The Subscription Term shall automatically renew on the first day of the month for successive periods equal to the initial Subscription Term, unless Customer provides Clarra with written notice of non-renewal or termination prior to the expiration of Customer’s then-current Subscription Term.
2.2. Access to the Clarra Platform. Subject to the terms and conditions of this Agreement (including payment of applicable fees), Clarra grants to Customer a non-exclusive, non-sublicensable, non-transferable limited right during the applicable Subscription Term to: (a) permit Authorized Users to access and use the Clarra Platform solely for Customer’s own internal business purposes and in accordance with this Agreement, the Documentation, and any applicable Usage Parameters, and (b) reproduce and use a reasonable number of copies of the Documentation in support of the exercise of the licenses and rights granted in this Section 2.2.
2.3. Restrictions. Customer acknowledges that the Clarra Service (and all parts and components thereof) embodies, contains, and constitutes valuable trade secrets of Clarra. Accordingly, Customer agrees that it will not permit itself, its Authorized Users and/or any third party to (a) use or allow access to the Clarra Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters; (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Clarra Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement; (c) access or use the Clarra Service (or any part or component thereof) for the purpose of developing competitive products or services; (d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Clarra Platform; (e) use the Clarra Service (or any part thereof) in a way that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; (f) use any aspect of the Clarra Service, or any components or functionality thereof, other than those specifically identified in the applicable Order Form, even if technically possible; (g) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Clarra or its licensors and/or suppliers on or within the Clarra Service and/or Documentation; (h) interfere with or disrupt the integrity or performance of the Clarra Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Clarra Service; (i) attempt to gain unauthorized access to the Clarra Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by Clarra, in the Clarra Service; (j) frame or utilize framing techniques to enclose the Clarra Service or any portion thereof; (k) use any meta tags, “hidden text,” robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Clarra Service, content, and/or the personal information of others without Clarra’s prior written permission or authorization; (l) use the Clarra Service to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that violates any third party’s intellectual property rights and/or privacy rights; (m) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; or (n) use the Clarra Service (or any part thereof), or transmit Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.
2.4. Third-Party Integrations. The Clarra Platform may allow Customer and its Authorized Users to integrate with and/or connect to and use certain third-party products, services or software (including, without limitation, data products and services) that are not owned, controlled, or operated by Clarra and which are subject to separate terms and conditions of the applicable third-party provider (collectively, “Third-Party Integrations”). If Customer and/or its Authorized Users decides to access and use such Third-Party Integrations, Customer acknowledges and agrees that the use of such Third-Party Integrations is governed solely by the terms and conditions for such Third-Party Integrations. CLARRA DOES NOT ENDORSE, IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS AS TO SUCH THIRD-PARTY INTEGRATIONS, THEIR CONTENT OR THE MANNER IN WHICH THEY HANDLE CUSTOMER’S AND/OR ITS AUTHORIZED USERS’ DATA. CLARRA WILL NOT BE LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH CUSTOMER’S AND/OR ANY AUTHORIZED USERS’ ACCESS OR USE OF ANY SUCH THIRD-PARTY INTEGRATIONS, OR CUSTOMER’S RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH THIRD-PARTY INTEGRATIONS.
3. CUSTOMER OBLIGATIONS
3.1. Accounts. In registering an Account, Customer agrees to and shall ensure that its Authorized Users provide and maintain up-to-date Account and Authorized User information that is true, accurate, current, up to date, and complete. Customer agrees that Customer will not and will not permit any Authorized User or other third party to create an Account or sign up to access the Clarra Service using a false identity or fictitious name or information. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of the Customer’s Authorized Users’ Account passwords. Customer is solely responsible for any activity originating from the Account, including, without limitation, any of its Authorized User Accounts, regardless of whether such activity is authorized by Customer. Customer agrees to notify Clarra immediately of any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.
3.2. Administrators; Authorized Users. Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to invite Authorized Users to access and use the Clarra Service on behalf of Customer and to assign certain permissions and access rights to each Authorized User (“Permissions”). Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may (a) subsequently invite or enable other Authorized Users with the same access and ability to use the Clarra Service, and each such additional Authorized User will be deemed an Authorized User under the Account; and/or (b) have the ability to view Customer Data that is connected to the Account. Customer acknowledges and agrees that Customer is solely responsible and liable for its Administrator(s) administration and management of the Account, including, but not limited to, the inviting and granting of access to the Account and Clarra Service to Authorized Users and the assignment of Permissions to Authorized Users. For the avoidance of doubt, the term “Authorized Users” as used in this Agreement, includes Administrators. Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Customer.
3.3. Customer Data. Customer hereby grants to Clarra during the term a worldwide, royalty-free, non-exclusive license to use Customer Data (including through the use of subcontractors) to the extent reasonably necessary to provide Customer the Clarra Service and other services hereunder. Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to Clarra in and to such Customer Data. Subject to the licenses granted herein, as between Clarra and Customer, Customer shall retain all right, title, and interest in and to the Customer Data.
3.4. Personal Data. To the extent any Customer Data includes any personally identifiable information (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), Customer acknowledges and agrees that as between Customer and Clarra, Customer is the data controller and/or business, and Clarra is merely a data processor and/or service provider as such terms are defined pursuant to the Applicable Data Laws. Personal Data provided to, or collected by, Clarra in connection with Customer’s and/or its Authorized Users’ use of the Clarra Service shall only be used in accordance with this Agreement and Clarra’s Privacy Notice. Customer represents and warrants that, with respect to any Customer Data (including, without limitation, any Personal Data), Customer: (a) is in compliance with all Applicable Data Laws, and (b) has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through or in connection with the use of the Clarra Service, and/or provide or make available such data to Clarra hereunder. In addition, the parties agree to work together in good faith to execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by either party in its reasonable discretion to comply with any Applicable Data Laws with respect to any Personal Data.
4. CLARRA PROPRIETARY RIGHTS
4.1. Clarra Ownership. Clarra or its licensors retain all right, title and interest in and to the Clarra Service, Clarra Platform, Documentation, and any and all modifications, updates, enhancements and improvements thereto, and including, without limitation, all Intellectual Property Rights, embodied in, or otherwise applicable to any of the foregoing. Customer shall not commit any act or omission, or permit or induce any third party (including, without limitation, any Authorized User) to commit any act or omission inconsistent with Clarra’s or its licensors’ rights, title and interest in and to the Clarra Service (or any part of component thereof), and the Intellectual Property Rights embodied therein or applicable thereto. All materials embodied in, or comprising the Clarra Service, Clarra Platform, and/or Documentation, including, but not limited to graphics, user and visual interfaces, images, code, applications, text, design, structure, selection, coordination, expression, “look and feel”, content, trademarks, service marks, proprietary logos, and arrangement of the Clarra Platform and/or Documentation, and their content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Clarra Service and/or Documentation (but excluding in each case any Customer Data incorporated therein), are all owned by Clarra or its licensors. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Clarra.
4.2. Operational Metrics. Clarra monitors and collects Operational Metrics for its own business purposes, such as improving, testing, maintaining, and developing new products and features for the Clarra Service. Customer grants to Clarra a non-exclusive, irrevocable, transferable, worldwide, and royalty-free license to collect, analyze and use Operational Metrics relating to its delivery of the Clarra Service. Operational Metrics that are derived from, or related to, Customer Data may only be publicly distributed in aggregate, non-personally identifiable form that cannot be used to identify Customer or any individual Authorized User.
4.3. Feedback. To the extent Customer and/or any Authorized User provides any suggestions and feedback to Clarra regarding the functioning, features, and other characteristics of the Clarra Service (or any part or component thereof) or other materials or services provided or made available by Clarra hereunder (“Feedback”), Customer hereby grants Clarra a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to use and exploit such Feedback in any manner and for any purpose.
5. FEES & PAYMENT TERMS
5.1. Subscription Fees. Customer shall pay the applicable fees set forth in the Order Form, if any, for the Subscription purchased by Customer. Except as otherwise set forth in this Agreement, the fees payable by Customer for the Subscription will remain fixed during the Subscription Term unless Customer (a) exceeds the permitted applicable usage limits of the Subscription, (b) upgrades the Subscription, and/or (c) subscribes to additional features or products. In the event a price change applies, Customer will be charged at the time of obtaining Subscrption for such additional fees. For the avoidance of doubt, Customer acknowledges and agrees that any upgrade to the Subscription will take effect immediately, and any downgrade to the Subscription shall not take effect until the next renewal date of the applicable Subscription Term, regardless of Customer’s billing cycle for such Subscription (i.e., for monthly Subscriptions, prior to the start of the next month, and for annual Subscriptions, prior to the start of the next year). Subscriptions Plans shall renew on the first of the month at Clarra’s then-current pricing for such Subscription.
5.2. Payment Terms. Unless otherwise set forth in the applicable Order Form and/or otherwise expressly agreed in writing by Clarra, all fees for the Subscription are due and payable in advance of each Subscription Term (including any renewal thereof), and will be automatically billed to the credit card or other payment method designated by Customer at the time the Subscription was purchased or otherwise specified in Customer’s Account (the “Payment Method”). Customer represents and warrants that it has the legal right and authority to use, and authorize Clarra to bill and charge, the Payment Method provided by Customer hereunder. Customer expressly agrees and hereby authorizes Clarra and its third-party payment processors to bill and charge the Payment Method for the applicable fees due and payable by Customer hereunder and any applicable taxes and other charges that Customer may incur in connection with the use of the Clarra Service, in accordance with the billing terms in effect at the time a fee or charge is due and payable. To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means. In addition, if payment is not received or cannot be charged to Customer for any reason in advance, Clarra reserves the right to suspend or terminate Customer’s and its Authorized User’s access to the Clarra Service, downgrade the Subscription, and/or terminate this Agreement. All fees are listed and payable in United States Dollars (USD). ALL FEES ARE NON-REFUNDABLE, NON-RETURNABLE AND NON-CANCELLABLE.
5.3. Taxes. Customer will be responsible for and will indemnify and hold Clarra harmless from payment of all federal, state, local or international taxes whether sales, use, or other taxes (other than taxes based on Clarra’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees and/or expenses to Clarra under this Agreement or the delivery of the Clarra Service (or any part thereof), or performance of any services for Customer. Customer will make all payments of fees and/or expenses to Clarra free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees and/or expenses to Clarra will be Customer’s sole responsibility, and Customer will provide Clarra with official receipts issued by the appropriate taxing authority, or such other evidence as Clarra may reasonably request, to establish that such taxes have been paid. If Customer is not required to pay an applicable tax due to any tax exemption, Customer will provide to Clarra certificates from the appropriate taxing authorities verifying Customer’s tax exemption.
6. TERM AND TERMINATION
6.1. Term of Agreement. The term of this Agreement commences on the Effective Date and will remain in effect during the Subscription Term (including any renewal thereof), unless earlier terminated in accordance with this Agreement. Each Subscription Term shall automatically renew as set forth in Section 2.1.
6.2. Termination. Customer may terminate this Agreement and/or any Subscription by providing Clarra written notice of termination to Clarra by email at email@example.com or by canceling the Clarra Service on the Clarra Platform. Customer acknowledges and agrees that, notwithstanding any termination of this Agreement, the Subscription fees are non-refundable and non-cancellable. At any time, Clarra may (a) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the Clarra Service (or any part thereof), or (b) terminate this Agreement with respect to Customer if Clarra, in good faith, believes that Customer and/or any Authorized User has used the Clarra Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules.
6.3. Effects of Termination. Upon termination of this Agreement for any reason, all outstanding fees immediately becoming due and payable, including, without limitation, any Subscription fees due and payable for the remainder of the then-current Subscription Term, and Customer’s and its Authorized Users’ right to access and use the Clarra Service will automatically terminate. Notwithstanding the foregoing, Customer will have sixty (60) days from the effective date of termination to submit a written request to Clarra to export Customer Data from the Clarra Platform. Following Clarra’s receipt of such request, and, provided that, Customer has paid Clarra all amounts due and payable under this Agreement, Clarra will permit Customer limited access to export one (1) copy of such Customer Data. Thereafter, Company will have no obligation to retain Customer Data. Sections 1, 2.3, 2.4, 3, 4, 5, 6.3, and 7 through 15 (inclusive) will survive the termination or expiration of this Agreement.
6.4. Changes and Modifications. Clarra reserves the rights to either temporarily or permanently modify, suspend or discontinue the Clarra Service (or any part thereof) with or without notice, and Customer agrees that Clarra will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Clarra Service (or any part thereof).
7. DISCLAIMER. THE CLARRA SERVICE, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY CLARRA HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND. CLARRA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CLARRA DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE CLARRA SERVICE (OR ANY PART THEREOF), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY CLARRA: (A) WILL MEET CUSTOMER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH THE CUSTOMER’S NETWORK, COMPUTER, OR ANY THIRD-PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY INTEGRATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLARRA BE LIABLE OR OBLIGATED, WITH RESPECT TO THIS AGREEMENT, THE CLARRA SERVICE (OR ANY PART THEREOF), AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY CLARRA, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF CLARRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS GREATER THAN THE SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO CLARRA UNDER THE APPLICABLE ORDER FORM FOR THE CLARRA SERVICE GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100.00); (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (C) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT CLARRA WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. INDEMNIFICATION. Customer shall indemnify, defend, and hold Clarra and its officers, directors, shareholders, employees, contractors, agents, successors and assigns, harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to: (a) Customer’s and/or any Authorized Users’ breach of this Agreement and/or any license or other agreement applicable to any Third-Party Integrations; (b) any Customer Data, and/or any allegations that any Customer Data or Customer’s and/or any Authorized Users’ activities in connection with, or use of, the Clarra Service (or any part thereof), violate any applicable laws, rules or regulations (including, without limitation, any Applicable Data Laws); and/or (c) Customer’s gross negligence, fraudulent misrepresentation or willful misconduct. Clarra shall promptly notify Customer in writing of such action, give Customer sole control of the defense thereof and any related settlement negotiations, and, at Customer’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Clarra or requires Clarra to contribute to the settlement without Clarra’s prior written consent. Clarra may participate and retain its own counsel at its own expense.
10. CONFIDENTIALITY. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”). Without limiting the foregoing, Confidential Information of Clarra shall include the Documentation, Feedback, and any non-public technical and business information regarding the Clarra Service, including, but not limited to, the Clarra Platform and the fees payable hereunder, and/or any other Clarra products and services. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for the purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Confidential Information shall not include information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party, or its employees and contractors, has become, generally available to the public; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under this Section to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (1) as required by law, or (2) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality).
11. GOVERNING LAW; VENUE. This Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of California, without reference to its choice of law rules to the contrary. This Agreement (including without limitation, the Clarra Platform and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California, in connection with any action arising out of or in connection with this Agreement. Notwithstanding the foregoing, Clarra may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country, in the event of any actual or alleged violation of Clarra’s intellectual property rights or Confidential Information.
12. GOVERNMENT RIGHTS. The Clarra Platform is provided under this Agreement is a commercial computer software program developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), the Clarra Platform licensed in this Agreement is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.
13. EXPORT CONTROL. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Clarra Platform. Customer agrees that it will not export or re-export the Clarra Platform (or any part thereof) without the appropriate United States or foreign government licenses or permits.
14. MODIFICATIONS TO THIS AGREEMENT. Clarra reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted at www.clarra.com/terms-of-service. Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above. If Clarra makes any material changes to this Agreement, Clarra will provide reasonable prior notice to Customer of these changes by sending a notification to the email address Clarra has on file for Customer, or, if Clarra does not have an email address on file, by posting a prominent notice on Clarra’s website www.clarra.com and/or through the user interface of the Clarra Platform. Material changes to this Agreement will become effective on the date set forth in the notice. It is Customer’s responsibility to regularly visit and review this Agreement for updates, changes and modification. If Customer does not agree to any updates or modifications to this Agreement, Customer must terminate its Account as set forth in Section 6.2 above and cease all use and access of the Clarra Service. Customer’s and/or any of its Authorized Users’ continued access or use of the Clarra Service (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer’s acceptance of the revised Agreement.
15.1. Independent Contractors. Each party will perform its obligations hereunder as an independent contractor and, except as expressly provided to the contrary in this Agreement, will be solely responsible for its own financial obligations. Nothing contained herein will be construed to imply a joint venture or principal-agent relationship between the parties, and neither party will have any right, power, or authority to create any obligation, express or implied, on behalf of the other in connection with performance of its obligations hereunder.
15.2. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.
15.3. Notices to Clarra. All notices permitted or required to be sent to Clarra under this Agreement shall be in writing and shall be delivered by personal delivery, email, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by email. Notices shall be sent to Clarra in writing to: 2100 Geng Rd, Suite 210, Palo Alto, CA 94303, with a copy sent via email at: firstname.lastname@example.org; Subject Line: Legal.
15.4. Notices to Customer; Consent to Electronic Notices. Except as otherwise set forth herein, all notices to be sent to Customer hereunder shall be sent via email to Customer’s email address specified in the applicable Order Form. In addition, Customer consents to receiving electronic communications from Clarra, which may include notices about applicable fees and charges, transactional information and other information concerning or related to Customer’s use of the Clarra Service. These electronic communications are part of Customer’s relationship with Clarra and Customer receives them as part of Customer’s access and use of the Clarra Service. Customer agrees that any notices, agreements, disclosures or other communications that Clarra sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.
15.5. Force Majeure. If performance of this Agreement, or any obligation hereunder (other than the obligation to pay) is prevented, restricted, or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party (including the failure of any suppliers to perform), the party so affected, upon giving prompt notice to the non-affected party, will be excused from such performance to the extent of such prevention, restriction, or interference.
15.6. Construction. Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.
15.7. Assignment. Customer may not assign its rights or obligations under this Agreement without Clarra’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void. Clarra may freely assign or transfer this Agreement hereunder without Customer’s consent, and Clarra may delegate the performance of any services hereunder to its affiliates, employees, contractors, and subcontractors.
15.8. Entire Agreement. This Agreement, together with any and all Order Forms entered into hereunder, and any other policies or terms and condition referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof.
16. QUESTIONS. Please feel free to contact Clarra at email@example.com if you have any questions about this Agreement.