Cloud Software Agreement

This Cloud Software Agreement (this “CSA”) is entered into between ClearDATA Networks, Inc., a Delaware corporation (“ClearDATA”) and the company and the company that signs an SOW that incorporates this CSA by reference (“you” or “Customer”) and is effective as of the date of your signature on the below (“Effective Date”).

1. DEFINED TERMS. Capitalized terms have the meanings given in this section, or in the section where they are used.

Acceptable Use Policy or AUP means the ClearDATA Acceptable Use Policy published at https://www.cleardata.com/legal/acceptable-use-policy-032118.

Agreement means, collectively, the SOW(s), this CSA, the Service Level Agreement, the Acceptable Use Policy, and any document referenced in or attached to any of them.

Confidential Information means information disclosed by one Party to the other Party, orally or on any media, whether before or after the Effective Date that: (i) the recipient should reasonably understand to be confidential, such as (A) for Customer, all information transmitted to or from, or stored on, the Public Cloud Provider Services, and (B) for ClearDATA, this Agreement, prices and other terms of service, audit and security reports, product features, functionality and development plans, network configuration, vendors and other proprietary information or technology, or (ii) is marked or otherwise conspicuously designated as confidential by the disclosing Party. Confidential Information includes information disclosed by making tangible objects or premises available for inspection. Confidential Information does not include information that:  (i) is or becomes publicly known through no fault of recipient or persons to whom recipient has rightfully disclosed the Confidential Information, (ii)  is or becomes rightfully known by recipient without confidential or proprietary restriction from a source other than discloser who, to recipient’s knowledge, does not owe a duty of confidentiality to discloser with respect to such information; (iii) is or was developed by recipient without the use of or reference to the Confidential Information of discloser.

Intellectual Property means, on a worldwide basis, any and all tangible and intangible: (i) copyrights; (ii) trademarks, service marks, logos, trade dress, trade names, and the goodwill associated therewith; (iii) rights relating to know-how or trade secrets; (iv) patents; (v) rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers), and similar identifiers; (vi) all other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vii) all registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions, or reissues of any of the foregoing now or hereafter in force (including any rights in any of the foregoing).

Personal Data means information about an identified or identifiable natural person, including information that may be used to identify an individual or with respect to which there is a reasonable basis to believe the information can be used to identify an individual.  Specifically, but without limitation, Personal Data includes all of the following: (i) “electronic protected health information” and PHI as defined in HIPAA, (ii) name, (iii) contact information such as phone, email, or physical address, (iv) user names and access codes for online services, (v) health insurance account numbers and access information, (v) financial account numbers and access information, (vii) device numbers, IP addresses or other means of identification to a particular computing or communication device or Internet address, (viii) identification numbers such as social security or driver’s license numbers, (ix) unique identifiers that are intended to associate a record with an individual, (x) photographs, and (xi) biometric information.

Protected Health Information or PHI has the meaning given in HIPAA (45 CFR § 160.103).

Public Cloud Provider means the provider of the cloud infrastructure and related services as identified in your SOW, such as Amazon Web Services, Inc. for AWS®,  Google, Inc. for GCP®, and Microsoft Corporation for Azure®.

Service Descriptions means the descriptions of the Services and of the features, functions and approved configurations of the Services at https://www.cleardata.com/services-descriptions/.

Service Level Agreement or SLA is defined in the Service Descriptions.

Statement of Work or SOW  means a statement of work that references this CSA.

Term is defined in Section 7 (Term, Termination, Suspension).

Software means the ClearDATA software products listed in a SOW and as described in a Service Description.

Software Support means technical product assistance for Software as described at https://www.cleardata.com/services-descriptions/.

2. LIMITED LICENSE

2.1  Ownership.  As between you and ClearDATA, (i) you retain ownership of any technology, information or materials that you transmit to or from, or store, or process using the Software and all related intellectual property, including derivative works thereof (“your IP”) and (ii) ClearDATA retains ownership of its Software, and any other technology, information, know how, methods, techniques or materials provided as part of the Software or Support and all related intellectual property, including derivative works thereof (“ClearDATA IP”).  Neither party may reverse engineer, disassemble or decompile the other party’s intellectual property except to the extent necessary to use or provide the Services, or as permitted by applicable law notwithstanding this restriction.  Neither party may remove any proprietary rights notices included by the other party on its licensed intellectual property.

2.2  Limited Licenses. During the Term, subject to the terms and conditions of this Agreement, ClearDATA grants you a non-exclusive right to use Software as detailed in its Service Descriptions.  All rights not expressly granted to you are reserved by ClearDATA, and you have no other or different rights or privileges (implied, by estoppel, or otherwise) with respect to ClearDATA’s existing or future Intellectual Property Rights.  You license Your IP to ClearDATA on a limited, basis solely as necessary to perform its obligations or exercise its rights under the Agreement.  Neither party may reverse engineer, disassemble or decompile the other party’s intellectual property except as permitted by applicable law notwithstanding this restriction.   Neither party may remove any proprietary rights notices included by the other party on its intellectual property.

2.3  Suggestions.  If you provide any feedback, comments, or suggestions for the improvement of the Services (“Suggestions”) you hereby license the Suggestions and all related intellectual property to ClearDATA on a non-exclusive, worldwide, fully paid, perpetual, irrevocable basis for ClearDATA to use, disclose, modify, reproduce, license, distribute (through multiple tiers), commercialize and otherwise freely exploit without restriction of any kind, without obligation to account for or share revenue or profits.

2.4  Your Data and Applications.  Software and Support does not include ClearDATA’s design, development or management of Your application(s) or Your data, transactions processing, or maintenance of a “designated record set,” as defined in HIPAA.  ClearDATA will interact with Your application(s) and Your data only to the limited extent necessary to provide Software and Support and comply with the Agreement.

2.5 Changes to Software and Services.  Over time, ClearDATA will employ different technologies and methods to satisfy our obligations to you.  This may require ClearDATA to modify how we deliver Software.  Our changes will be based on reasonable commercial factors including those necessary to meet legal, regulatory or industry-standard requirements.  ClearDATA will not modify the technology utilized in, or features or functionality of our systems in a manner that would have a significant adverse effect on your use of the Software. If you provide us notice of any objection to a change within a thirty day notice period, we will discuss your objections and negotiate in good faith with you toward a prompt resolution.

3. CLEARDATA COMMITMENTS

3.1 Software.  Software shall perform in material conformity with the Service Descriptions.

3.2 Software Support.  ClearDATA will provide Support in a good and professional manner consistent with applicable industry standards. ClearDATA will promptly communicate information it receives from Public Cloud Providers regarding scheduled and unscheduled maintenance which may affect performance of the Software.

3.3 Intellectual Property.  ClearDATA warrants that Your use of the Software as permitted by the Agreement will not infringe the Intellectual Property Rights of any unaffiliated third party, provided, however, that ClearDATA’s sole obligation with respect to a breach of this warranty, is indemnification for third party claims as provided in Subsection 9.1 (ClearDATA Indemnification of You).

3.4  Additional Services.  If ClearDATA provides assistance that is not part of the Software or Support it is provided on an AS IS, AS AVAILABLE basis.

3.5  Warranty Disclaimer.  Except for the warranties expressly stated in this Section, ClearDATA, its suppliers, licensors and subcontractors make no representations or warranties whatsoever and expressly disclaim any implied warranty of merchantability, fitness for a particular purpose, and any warranty that would have otherwise arisen through a course of dealing.  If applicable law requires a warranty notwithstanding this limitation, then the warranty is made for a period of 30 days from the date the warranty is deemed to have been made.  Specifically, but without limitation, ClearDATA does not warrant THE OPERATION OF THE Software OR THE PROVISION OF SUPPORT will be uninterrupted, meet the requirements of you, your customers or any other party, be error free, OR PROVIDE PERFECT PROTECTION FROM ALL VULNERABILITIES OR SECURITY ATTACKS, INTRUSIONS, OR SECURITY INCIDENTS.

4. YOUR OBLIGATIONS

4.1  Account Security.  You must comply with the encryption, security measures and other responsibilities documented in the Service Description. You must maintain the confidentiality of passwords and other access credentials and use reasonable care to prevent unauthorized access to the Software.  You must use reasonable care to avoid transmitting virus, spyware, ransomware, or other malware.

4.2  Compliance with Law, Privacy Policy, and Acceptable Use.  You represent and warrant that you will comply with laws governing the collection, management, transmission, storage and processing of data.  You must comply with your published privacy policy and the AUP.  You represent and warrant that your use of any information, materials or technologies that you install, store, process, or transmit, does not violate the rights of any third party, including but not limited to the rights of publicity or privacy of individuals whose Personal Data is part of Your data (the “data subjects”) under data protection laws applicable to the Personal Data or data subjects. Specifically, but without limitation, you represent and warrant that, where required by the laws applicable to the Personal Data or the data subjects, you have obtained consent from the data subjects for ClearDATA’s use and disclosure of the Personal Data as required to provide Software and Support under this Agreement.

4.3  Access Control Lists and Account Information.  You are responsible for keeping your account access control permissions, administrative contact, billing, and other account information up to date using the Customer Portal.  ClearDATA will use the information you provide to establish the initial account contacts and access permissions necessary to provide Software and Support.  You will ensure ClearDATA has the ability to modify the control plane of your Public Cloud Provider environment to remediate compliance failures as described in the Service Description. You represent and warrant to ClearDATA that the information you provide for purposes of establishing and maintaining your account is true, correct and complete.

4.4 Customer Responsibilities. Customer will: (i) provide qualified personnel capable of performing Customer’s duties and tasks; (ii) provide ClearDATA access to Customer’s sites, facilities and systems during Customer’s normal business hours and as otherwise reasonably required by ClearDATA to perform its obligations; (iii) perform Customer’s duties and tasks under the SOW  and such other duties and tasks reasonably required to permit ClearDATA to perform its obligations; and (iv) not provide any PHI as defined in HIPAA without ClearDATA’s prior written consent. ClearDATA is excused for delayed or insufficient Support to the extent they result from Customer’s failure or delay in providing requested cooperation.  Customer acknowledges that its material or chronic delay is a material breach of the Agreement, giving rise to a right of termination without refund or credit.

4.5.  Customer Cooperation.

4.5.1  ClearDATA Maintenance. ClearDATA will perform scheduled maintenance during the maintenance window as detailed in the Service Description. If ClearDATA is required to perform maintenance outside of the maintenance window, ClearDATA will use reasonable efforts to notify you at least one (1) business day in advance of the maintenance.  Maintenance notices will be sent electronically to the technical contacts listed on your account.

4.5.2  Remediation.  You must cooperate with ClearDATA’s investigation or remediation of outages, suspected security problems, or breaches of this Agreement.

5. RESTRICTIONS

5.1  Medical Devices/High Risk Use.  You may not use the Software where use or failure or fault of the could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Software as a component of or to operate any medical device or in connection with any aircraft or other mode of human transportation, or nuclear or chemical facilities.

5.2  Authorized Users.   Only your personnel and the personnel of your contractors who are contractually limited to using the Software in support of your business operations may use or access the Software.

5.3  Export.  In addition to your obligation to comply with the export laws applicable to you, you may not use the Software in a way that causes ClearDATA to be in violation of the export laws of the United States or other jurisdiction from which the Software is provided.  For example, you may not authorize any person to use the Services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws, or use or permit the use of the Software to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State.

7. TERM, TERMINATION, SUSPENSION

7.1  Term.  The Term of the Agreement continues so long as an SOW is effective.  The initial term for each SOW begins on its Effective Date and continues for three (3) years.  SOWs automatically renew at the end of the initial term and each renewal term for an additional twelve (12) months.  If ClearDATA terminates the Agreement or an SOW for your breach, or you terminate the Agreement or an SOW for convenience, you must pay an early termination fee as follows: (i) any implementation or set up fee that remains unpaid, plus (ii) the monthly recurring fees for the remaining part of the initial term or then-current renewal term, with monthly recurring fees to be determined by the higher of:  (a) the initial estimated monthly recurring fees; and (b) the average of the fees for the prior months in the initial term or renewal term as the case may be.

7.2  Termination for Material Breach.  Either party may terminate the Agreement if the other party is in violation of a material term of the Agreement and, if the breach is curable, has not cured the breach within thirty (30) days of the other party’s written notice describing the breach in reasonable detail.  ClearDATA may terminate the Agreement  if you violate the AUP more than once, even if each the breach is cured.  Failure to pay amounts due for more than (60) sixty days is a material breach.

7.3  Termination Other than for Breach.  ClearDATA may terminate the Agreement on ninety (90) days advance written notice if there is an infringement claim that makes the provision of the Software or Support commercially infeasible and ClearDATA is not able to resolve the claim through the use of commercially reasonable efforts.  Either party may terminate the Agreement if the other party is insolvent or files for bankruptcy or similar protection.  Neither party has any liability with respect to a termination under this Subsection.

7.4  Suspension.  ClearDATA may suspend access to the Software and Support, in whole or in part, during any period that you are in material breach of this Agreement or as reasonably necessary to address a serious potential security vulnerability that it discovers or reasonably suspects.  ClearDATA will give you at least two (2) business days’ advance notice of the suspension, unless circumstances require suspension on less notice.  ClearDATA will reinstate your access to the Software and Support when the grounds for suspension are cured unless ClearDATA has already terminated the Agreement as described in this Section 7.

7.5  Survival.  The following terms survive expiration or termination of the Agreement:  Section 1 (DEFINITIONS) to the extent the terms defined are used in other surviving sections, Section 5 (RESTRICTIONS), Section 6 (FEES, PAYMENTS),  7 (TERM, TERMINATION, SUSPENSION), Section 8 (CONFIDENTIAL INFORMATION), Section 10 (LIMITATIONS OF LIABILITY), Section 11 (NOTICES), Section 12 (GENERAL), other terms that expressly state they are to survive termination and terms that by their nature should reasonably be expected to survive termination.

7.6  Preservation of Data.  ClearDATA will make Your data available for download for sixty (60) days after termination or expiration of the relevant SOW or CSA.  After such sixty (60) day period, ClearDATA shall have no obligation to maintain or provide Your data to You and shall, unless legally prohibited, delete all of Your data in its systems or otherwise in its possession or under its control.

8. CONFIDENTIAL INFORMATION

Neither party may use the other party’s Confidential Information except in connection with the performance or use of the Software or Support, as applicable, the exercise of the party’s legal rights under this Agreement, or as may be otherwise permitted under this Agreement or required by law. Each party agrees not to disclose the other party’s Confidential Information to any third person except as follows: (i) to the party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives are bound by written confidentiality measures that are provide similar protection as  these terms; (ii) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other reasonable advance written notice under the circumstances prior to disclosure, unless the law or a reasonable interpretation of it, forbids such notice; or (iii) as required by law, such as a requirement under a data privacy regulation that a notice of data breach be given to a supervisory authority or regulatory agency.  On expiration or earlier termination of the Agreement, each party will return or destroy the other party’s Confidential Information.  Each party will use commercially reasonable care to protect the other’s Confidential Information. Both parties are responsible for a breach of this Section by its service providers, agents and representatives to whom it has disclosed the other party’s Confidential Information.

9. INDEMNIFICATION

9.1  ClearDATA Indemnification of You.  ClearDATA will defend, indemnify and hold harmless you, your affiliates, officers, directors and personnel (“Your Indemnitees”) from final judgments and related attorney fees and other litigation related expenses as incurred (“Losses”) that result from claims by a party not affiliated with you or Your Indemnitees, to the extent these claims: (i) arise from ClearDATA’s material breach of Section 8 (Confidential Information) or (ii) assert that your use of the Software or Support as permitted by the Agreement infringes their Intellectual Property Rights in the United States or the European Economic Area. ClearDATA’s obligations under this subsection do not extend to a claim that is covered by your indemnification of ClearDATA, that is based on your failure to satisfy your obligations under this Agreement or your violation of Section 5 (“Restrictions”), your combination of the Services with technology not provided by ClearDATA, your unauthorized change to the Cloud Platform, Software, or Services, or ClearDATA’s compliance with your specific directives (the “Exclusions”).

9.2  Your Indemnification of ClearDATA.  You will defend, indemnify and hold harmless ClearDATA, its affiliates, suppliers, and licensors, and each of their officers, directors and personnel (the “ClearDATA Indemnitees”) against Losses arising from claims by a party not affiliated with ClearDATA or the ClearDATA Indemnities: (i) by your customers, end users, providers of Your application, or data subjects whose Personal Data is included in Your data, except where such claim arises from ClearDATA’s material breach of Section 8 (Confidential Information), (ii) asserting Your application or Your data, infringes or violates the Intellectual Property Rights or other rights of a third party in the United States or the European Economic Area, (iii) that is an Exclusion (defined in Section 9.1) or (iv) asserts conduct that is a violation of the Agreement.  Your obligations under this subparagraph include claims arising out of the acts or omissions of your personnel, agents, and authorized users, any other person to whom you have given access to the Software, or Support, and any person who gains access to any of them as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized.

9.3  Procedures.  The indemnified party must give notice of the indemnified claim to the indemnifying party within ten (10) days of the date the claim, or threat of a claim, is made in writing, provided that failure to give notice within the ten (10) day period does not relieve the indemnifying party of its obligations under this Section except to the extent the delay prejudices the defense of the claim.  The indemnifying party has the right to select counsel to defend any indemnified claim under this Section, and has the right to control the defense of the claim, except that the indemnified party may participate in the defense of the claim at its option and expense, with counsel of its choice.  Each party must comply with any the other’s request for information or cooperation regarding the defense of the claim.  The indemnifying party may settle any indemnified claim, in its discretion, provided that the settlement fully resolves the indemnified party’s liability and does not require the indemnified party to make an admission of culpability.

10. LIMITATIONS OF LIABILITY

10.1  NO CONSEQUENTIAL, INDIRECT DAMAGES.  EXCEPT FOR CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 8 (CONFIDENTIAL INFORMATION), OR CLAIMS BASED ON THE PARTY’S INTENTIONAL BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS,  SUPPLIERS OFFICERS, DIRECTORS, PERSONNEL, OR SUBCONTRACTORS IS LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, OR ANY LOSS OR DAMAGE THAT COULD HAVE BEEN AVOIDED BY THE  CLAIMING PARTY’S REASONABLE MITIGATION, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  For avoidance of doubt, damages that are awarded by a court or other tribunal to a third party and are covered under Section 9 (Indemnification) are not excluded by this Subsection.

10.2  MAXIMUM LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCLUDING: (I) CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS, OR INTENTIONAL TORT, (II) CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 8 (CONFIDENTIAL INFORMATION), (III) CLAIMS BASED ON THE PARTY’S INTENTIONAL INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND (IV) PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES, PAYMENTS), THE MAXIMUM AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY TYPE OF DAMAGES SHALL NOT EXCEED THE GREATER OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00) OR THE FEES PAID OR PAYABLE BY YOU UNDER THE SOW GIVING RISE TO THE CLAIM FOR THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.   the maximum aggregate monetary limit stated in this subsection is not “per incident” but is an aggregate limitation applicable to all claims arising under or regarding this Agreement.

10.3  Other.  You acknowledge ClearDATA has set its prices and entered into this Agreement in reliance on the limitations of liability stated in this Section 10, and that these limitations reflect an agreed allocation of risk between the parties.  These limitations apply from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. Nothing in this Subsection precludes a party from seeking any available specific enforcement, injunctive relief or other non-monetary equitable remedy. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted.

11. NOTICES

Unless another method of notice is expressly required by this Agreement, notices must be given by electronic mail.  ClearDATA’s notice to you must be given to your primary account contact.  Your notices to ClearDATA must be given to support@cleardata.com.   Your notice of breach of this Agreement, request for indemnification or other legal matters must be copied to legalnotice@cleardata.com with a copy mailed via 1^st class United States mail to ClearDATA Networks, Inc., ATTN CHIEF FINANCIAL OFFICER, 7415 Southwest Parkway, Building 6, Suite 500, Box 590, Austin, TX 78735.

12. GENERAL

12.1  Order Process.  You may offer to purchase ClearDATA services by signing and submitting an SOW, service SOW or other document provided to you by ClearDATA for your signature.  Your offer is legally binding on ClearDATA and becomes effective if ClearDATA accepts the offer, either by signing and returning the form to you, or beginning to provide the services described in the form you signed.  No change to a ClearDATA SOW  binds ClearDATA unless it has been made by ClearDATA prior to your signature and then signed by ClearDATA.

12.2  Non-Solicitation. Neither party shall directly or indirectly solicit any personnel of the other party with whom it has interacted in connection with the Agreement to terminate their employment with the other party, provided however, that this Section does not restrict a party from employing an individual who responds to a general employment advertisement or notice.  This restriction shall survive expiration or termination of the Agreement for a period of twelve (12) months.

12.3  General Warranty.  Each party represents and warrants to the other that: (i) it has the right, power, and authority to enter into the Agreement and to fully perform its obligations under the Agreement; and (ii) the making of the Agreement does not violate any agreement existing between it and any third party.  You represent to ClearDATA that the information you have provided to ClearDATA to establish your account is accurate and complete.  The individual signing the SOW represents that he or she has the authority to bind the entity named in the SOW.

12.4  Rights in Data.  ClearDATA may use your data to provide data aggregation services.

12.5  Publicity.  You agree ClearDATA may publicly disclose that it is providing Software and Support to you and may use your name and logo in its online, printed and other marketing and publicity materials to identify you as a ClearDATA customer, subject to your reasonable trademark usage guidelines.  ClearDATA may use any quotation provided or approved by you for marketing purposes in a press release or other publicity.

12.6  Assignment, Subcontractors.  Either party may assign this Agreement without the other party’s prior written consent: (a) in connection with the sale of all or substantially all of its assets; (b) to the surviving entity in any merger or consolidation; (c) to an affiliate; or (d) to satisfy a regulatory requirement imposed upon a party by a governmental body with appropriate authority, provided, however, that as a predicate for an assignment by you, in each case your assignee must have a financial standing and creditworthiness equal to or better than yours, as reasonably determined by ClearDATA, through a generally accepted, third party credit rating index (i.e. D&B, S&P, etc).  Any other assignment requires the prior written consent of the other party without which the assignment is null and void.  ClearDATA may use subcontractors to perform all or any part of the Services, but remains responsible to you under this Agreement for Services performed by its subcontractors to the same extent as if ClearDATA performed the Services itself.  Certain ClearDATA subcontractors require ClearDATA to include the following clauses: (i) none of ClearDATA’s subcontractors make any representations or warranties to you under this Agreement, and none of them has any liability directly to you in connection with the Services or any direct indirect, incidental or consequential damages arising from your use of the Services; (ii) you acknowledge that ClearDATA is not an agent for Amazon Web Services, Inc.,  Google, Inc., Microsoft Corporation, or its other subcontractors, and that ClearDATA and its subcontractors are independent contractors and not partners or joint venturers.

12.7  Disputes.

12.7.1  Mediation.  Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not file a lawsuit or other legal action in connection with this Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation.  At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Travis County, Texas consent to not be unreasonably withheld, costs to be split evenly. If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties may file suit.

12.7.2  Jurisdiction, Venue, Law.  Any lawsuit or other legal action related to this Agreement shall only be brought in state or federal courts having jurisdiction over Austin, Texas.  Neither party shall dispute the jurisdiction, convenience, or venue of such courts. This Agreement is governed by and interpreted under the laws of the State of Texas, without giving effect to conflicts of law principles. The parties expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Neither the Services nor the Software are “goods” covered by any version of the Uniform Commercial Code.

12.7.3  Waiver of Jury Trial.  To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any dispute arising out of this Agreement.

12.7.4  Prevailing Party Entitled to Fees and Costs.  The prevailing party in any action to enforce this Agreement, including an action for equitable relief, may recover its costs and expenses of the action from the other party, including reasonable attorney fees.

12.7.5 Expenses Arising from Legal Disputes, Subpoenas Regarding Your Account.  In addition to your indemnification obligations, you must also pay or reimburse ClearDATA’s reasonable actual attorneys’ fees and other expenses incurred in connection with any dispute between persons having a conflicting claim to control of your account, or to comply with any third-party subpoena, warrant or other mandated disclosure that is unrelated to any claim between you and ClearDATA.

12.8 Force Majeure.  Except for your payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.

12.9  Interpretations of Certain Words.  The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (entity, trustee, or executor), or an entity (corporation, partnership, or limited liability company).  The term “law” refers to statutes, regulations, executive orders, and other legally binding rules issued by a government agency having jurisdiction.  Unless otherwise defined, the words “business day” means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal holidays in the United States. The word “affiliate” refers to an individual or entity that controls, is controlled by, or is under common control with the person referred to, where control means ownership of the majority of voting interests of an entity or the right to control the policies of the entity by means of a controlling number of seats on the entity’s governing body.  Any requirement that a statement be written is satisfied by an email or other digital form of writing unless expressly stated otherwise.  Section captions are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement.

12.10  Relationship Between the Parties.  The parties are independent contractors, and neither party is the agent of the other or has the right to bind the other on any contract with a third party.  The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners.  Nothing in this Agreement creates an obligation of exclusivity or non-competition.

12.11  Modifications.

12.11.1  Changes to Online Terms.  From time to time ClearDATA may modify the Web-published portions of the Agreement.  Modifications are effective as to any SOW that is signed after the date the modified version is published, and are effective as to existing SOWs as of the first renewal term that begins after the modification is published.  If you execute a new SOW that modifies an existing cloud environment, then the version of the Agreement or any portion thereof that is published on or after the date of that new SOW controls as to all SOWs for Services for that cloud environment.

12.11.2  Changes to Customer Specific Documents.  A document that is part of the Agreement, executed by the parties and includes terms that deviate from ClearDATA’s web-published terms may be modified only by an amendment that is signed by the parties.

12.12  Order of Precedence.  If there is a conflict between the documents that comprise the “Agreement,” the documents control in the following decreasing order of precedence:  the SOW, this CSA, the AUP, the SLA, and any other document that is part of the Agreement.

12.13 Federal Agency Users.  The Services were developed solely at private expense and are commercial computer software and related Service Description within the meaning the Federal Acquisition Regulations and applicable agency supplements.

12.14  Third Party Beneficiaries.  Unless and to the extent specifically stated otherwise in some other section of this Agreement, there are no third-party beneficiaries to this Agreement.  Neither party’s customers, end users, suppliers, or other person shall have the right to enforce this Agreement.

12.15  Severability.  In the event one or more of the terms of this Agreement are adjudicated as invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.

12.16  Waiver.  Except as otherwise provided herein, no right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy.  A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived.  Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy.

12.17  Counterparts, Signatures.  This Agreement may be signed in multiple counterparts, which taken together shall be read as one Agreement.  A signed agreement transmitted by facsimile, email attachment, or other electronic means shall be considered an original.  The parties agree that electronic or digital signatures shall be given the same effect as a manual signature.

The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces in their entirety any prior or contemporaneous agreement or understanding, written or oral.  The parties represent to each other that they have not entered into the Agreement in reliance on any statement other than those included in the Agreement.

Effective Date:
{{_es_:signer4:date}}

 

Accepted and Approved by: {{_es_:signer4:company}}		Accepted and Approved by: ClearDATA Networks, Inc.
{{_es_:signer4:signature}}		{{_es_:signer3:signature}}
Signature		Signature
{{_es_:signer4:fullname}}		{{_es_:signer3:fullname}}
Print Name		Print Name
{{*_es_:signer4:title}}		{{*_es_:signer3:title}}
Title		Title
{{_es_:signer4:date}}		{{_es_:signer3:date}}
Date		Date

 

Email Address for Notice Purposes: {{*Notice_Email_es_:signer4:isemail}}

Email Address for Notice Purposes:  legalnotice@cleardata.com

© ClearDATA Networks, Inc. 2024

CCSA Revision Date March 1, 2024