BY ACCEPTING THIS CLEARSCALE MANAGED SERVICES AGREEMENT (“AGREEMENT”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE IN CONNECTION WITH AN ONLINE PURCHASE OR BY EXECUTING AN ORDER OR BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES OR OTHER SERVICES.
THIS AGREEMENT GOVERNS YOUR PURCHASE AND USE OF SUBSCRIPTION SERVICES AND OTHER SERVICES PROVIDED BY CLOUDNOC, INC D/B/A CLEARSCALE MANAGED SERVICES
1.Definitions.
“Affiliate” of a party to this Agreement means any entity that directly or indirectly controls, is controlled by or is under common control with such party.
“AUP” means the ClearScale Managed Services Acceptable Use Policy whether in electronic, paper, or equivalent form, as updated from time to time at ClearScale Managed Services’s sole discretion which is incorporated herein and made an integral part of this Agreement by this reference.
“Customer Content” means any content, data, information, links, images, works of authorship, and other materials: (a) submitted by or for Customer to the Subscription Services; or (b) collected and processed by or for Customer using the Subscription Services. Customer Content excludes Usage Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation, correction or other feedback relating to the operation of the Subscription Services.
“Documentation” means the official ClearScale Managed Services provided instructions, user guides, manuals, service level agreement, and other descriptive product information applicable to the Subscription Services and Other Services, whether in electronic, paper, or equivalent form, as updated from time to time at ClearScale Managed Services’s sole discretion which is incorporated herein and made an integral part of this Agreement by this reference.
“Order” means a written or electronic order issued or accepted by Customer identifying the Subscription Services, Other Services, quantity, charges, and other information relevant to a specific transaction between Customer and ClearScale Managed Services. An Order for a renewal may be as simple as an email from Customer stating that they wish to renew their current subscription. Orders are applicable only to those items listed on the particular Order. Each Order will be governed by this Agreement and is incorporated herein by this reference.
“Other Services” means the services that are not Subscription Services provided by or through ClearScale Managed Services and as described in the relevant Order. Any pre-purchased Other Services must be consumed within twelve (12) months of their purchase date after which they expire. Other Services does not include certain consulting and technical services which may be provided by ClearScale, LLC under a separately negotiated Professional Services Agreement and Statement of Work.
“Subscription Services” means the online Basic, Advanced and Premier subscription services provided by ClearScale Managed Services that provide the functionality described in the Documentation.
“Usage Data” means generic usage information reflecting the access or use of the Subscription Services by or on behalf of Customer or an Authorized User, including information on user visits, sessions, impressions, click through or click stream data as well as aggregated statistical or other analysis, information or data based on or derived from any of the foregoing.
2.Services.
ClearScale Managed Services will provide the Subscription Services and Other Services to Customer as indicated in each accepted Order. Orders will be deemed accepted by ClearScale Managed Services when the requested access to the Subscription Services has been granted by ClearScale Managed Services or when ClearScale Managed Services otherwise informs Customer of its acceptance, whichever is earlier. As a condition to ClearScale Managed Services’s obligations hereunder, Customer shall at all times provide ClearScale Managed Services with good faith cooperation and access to such information, facilities, personnel and equipment as may be reasonably required by ClearScale Managed Services in order to provide the Other Services and Subscription Services and shall also have an active support contract with AWS that is not less than AWS Developer level. ClearScale Managed Services is not responsible for errors, delays or other consequences arising from the failure of Customer to timely and appropriately provide such information, data, records or cooperation. Customer further acknowledges that certain services may result in or require an increase to fees paid by Customer to AWS and other vendors which shall be the sole responsibility of Customer. For the avoidance of doubt, all fees and charges from Customer’s vendors, including but not limited to AWS or other cloud providers, shall be the sole responsibility of Customer. Nothing in this Agreement will be deemed to restrict or limit ClearScale Managed Services’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that the parties comply with their confidentiality obligations hereunder.
3.Ownership.
3.1 As between the Parties, ClearScale Managed Services and its suppliers own and reserve all rights, title and interest in and to the Documentation, the Subscription Services and all components thereof, as well as to any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, techniques and materials of any kind used or developed by ClearScale Managed Services or its personnel in connection with performing Other Services, other than the rights explicitly granted to Customer herein. No title to or ownership of any proprietary rights related to the Documentation, the Subscription Services or its databases is transferred to Customer pursuant to this Agreement or any transaction contemplated by this Agreement, including but not limited to any modifications pursuant to Other Services or any Professional Services. Similarly, no Customer Content shall transfer to ClearScale Managed Services under this Agreement.
3.2 In the event ClearScale Managed Services creates unique code or other intellectual property for Customer, then subject to Section 3.1, such creation shall be works made for hire to the extent permitted by applicable law, and Customer will retain all copyright, patent, trade secret, trademark, moral and any other similar intellectual property rights worldwide.
4.Grant of Rights.
4.1 Subscription Services and Documentation. Subject to Customer’s compliance with the terms and conditions of this Agreement and the AUP, ClearScale Managed Services grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during an active subscription term to: (a) access the user interface of the Subscription Services and to use the Subscription Services during the term of an active subscription, solely for Customer’s own internal business purposes; and (b) access, use, and internally distribute the Documentation.
4.2 Restrictions. Except to the extent applicable mandatory law does not allow contractual restrictions, Customer shall not: (a) modify, adapt, alter, translate or create derivative works of the Subscription Services or Documentation; (b) reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code used in connection with the Subscription Services and/or any aspect of ClearScale Managed Services’s technology; (c) access and/or engage in any use of the Subscription Services in a manner that abuses or materially disrupts the networks, security systems, of any third party; (d) rent, lease, loan, or use the Subscription Services via timesharing or as a service bureau; (e) market, offer to sell, sell, and/or otherwise resell the Subscription Services to any third party; (f) use the Subscription Services other than in accordance with this Agreement, including but not limited to the AUP, and the Documentation; (g) remove, alter or obscure any proprietary notices on the Subscription Services, or the Documentation; or (h) access the Subscription Services or the Documentation for any illegal or unauthorized purposed or to build a similar or competitive product or service.
4.3 Customer Content. Customer hereby grants to ClearScale Managed Services a non-exclusive, royalty-free license to use the Customer Content for the purpose of providing the Subscription Services to Customer. Except for the limited rights and licenses expressly granted to ClearScale Managed Services hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Content. Notwithstanding anything herein to the contrary, Customer agrees that ClearScale Managed Services may collect, use, disclose, and otherwise process Usage Data for industry analysis, benchmarking, analytics, marketing, and other business purposes. For avoidance of doubt, any such Usage Data will be in aggregate form only and will not identify Customer, its Authorized Users, Submitted Data, or any third parties utilizing the Subscription Services.
4.4 Third Party Applications. ClearScale Managed Services may make third-party products or Subscription Services available to Customer through the Subscription Services (“Third-Party Applications”). These providers of Third-Party Applications may require Customer to accept additional terms and pay an additional fee in order to use their Subscription Services. If Customer elects to install or enable Third-Party Applications for use with the Subscription Services, Customer permits ClearScale Managed Services to grant such Third-Party Applications access to Submitted Data as required for the interoperation and support of such Third-Party Applications with the Subscription Services. ClearScale Managed Services is not responsible and provides no warranty with respect to Third-Party Applications and their use of Submitted Data or for the security practices (or any acts or omissions) of such third-party service providers.
5.Fees and Payment.
5.1 Fees. The fees are as set forth in the applicable Order. Customer’s use of the Subscription Services is limited to the volume and duration purchased and any other limitations specified in the applicable Order. Any use beyond such limits as described in the applicable Documentation shall result in additional fees invoiced at the end of the month in which they are incurred. Subscription Services shall automatically renew for an additional period of twelve (12) months at the conclusion of each term for Subscription Services unless Customer provides notice of its intent not to renew at least thirty (30) days prior to the end of the then-current subscription term. ClearScale Managed Services will invoice Customer for such fees in advance at the start of the renewal period.
5.2 Payment. Customer shall pay ClearScale Managed Services all fees due as set forth in the Order within thirty (30) days from the invoice date unless otherwise stated in the applicable Order. If Customer provides credit card information, Customer thereby authorizes ClearScale Managed Services to charge such credit card for all fees listed in the applicable Order and any renewal. Any amounts not paid as specified and in accordance with the terms of the Order will be subject to interest at the lesser of one and one-half percent (1½%) per month, or fraction thereof, or the maximum amount allowed by applicable law. If Customer fails to pay any past due invoice within ten (10) days after Customer’s receipt of a past due notice from ClearScale Managed Services, ClearScale Managed Services may revoke or suspend the Subscription Services and the Other Services, as applicable, until such time as Customer brings its account completely current.
5.3 Taxes. Customer will be solely responsible for payment of any and all taxes and duties (including, but not limited to, value-added tax, turnover tax, gross receipts tax, sales or use tax and customs duties) arising from the Subscription Services, excluding U.S. taxes based on ClearScale Managed Services’s net income.
5.4 Record Keeping. Customer will maintain accurate and complete records as reasonably necessary to verify its compliance with this Agreement and upon ClearScale Managed Services’s reasonable request, provide ClearScale Managed Services with copies of such records. Customer acknowledges that ClearScale Managed Services may monitor Customer’s use of the Subscription Services for the purpose of verifying compliance with this Agreement. Customer agrees that if its actual use exceeds the agreed-upon metrics under the applicable Order, ClearScale Managed Services will invoice Customer and Customer will pay the applicable fees (as specified in an Order or, if not specified, at ClearScale Managed Services’s then current standard rates) for any such incremental use.
6.Term & Termination.
6.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated as permitted herein (the “Term”). In the event there are no active Orders, this Agreement may be terminated by either party upon ninety (90) days prior written notice.
6.2 Termination. If a Party materially breaches the terms of this Agreement or any Order (excluding any breaches for which an exclusive remedy is expressly provided herein), the non-breaching Party may terminate this Agreement or any Order, as applicable, if such material breach is not cured within thirty (30) days (seven (7) days for payment related defaults) after written notice thereof. Either Party may terminate this Agreement or any Order, effective immediately upon written notice, should the other Party: (a) admit in writing its inability to pay its debts generally as they become due; (b) make a general assignment for the benefit of creditors; (c) institute proceedings, or have proceedings instituted against it, seeking relief or reorganization under any laws relating to bankruptcy or insolvency; (d) have a court of competent jurisdiction appoint a receiver, licensor, or trustee over all or substantially all of such Party’s property or provide for the license of such Party’s property or business affairs; or (e) violates the terms of the AUP (in the case of Customer).
6.3 Effect of Termination. Upon expiration or termination of this Agreement, Customer’s right to access and use the Subscription Services shall immediately terminate, Customer shall immediately cease all use of the Subscription Services, and each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Customer should download Customer Content prior to the termination date as ClearScale Managed Services deletes all Customer Content within ninety (90) days after the termination date. Termination by Customer for any reason other than uncured breach by ClearScale Managed Services as permitted herein shall not relieve Customer from fulfilling its payment obligations. In the event this Agreement is terminated by Customer for default by ClearScale Managed Services as permitted herein, then ClearScale Managed Services shall refund Customer a pro-rata portion of fees paid in advance for unperformed Subscription Services representing any portion of the subscription term remaining after the termination date.
7.Confidentiality.
Except as explicitly permitted in this Agreement, each party agrees to keep in confidence any confidential or proprietary information it receives from the other party (“Confidential Information”). Neither party shall disclose Confidential Information of the other party to third parties nor use such Confidential Information for any purpose other than as expressly permitted in this Agreement. To be accorded treatment as Confidential Information, the disclosing party must identify any such information as confidential at the time of disclosure. Notwithstanding the marking requirement, Customer Content will be deemed Customer’s Confidential Information, and all data and information in the Subscription Service’s databases (excluding Customer’s Confidential Information) will be deemed Confidential Information of ClearScale Managed Services and/or its suppliers. ClearScale Managed Services software, hardware, processes and know-how is Confidential Information owned by ClearScale Managed Services, and Customer shall not use, access or disclose information contained in or on or pertaining to ClearScale Managed Services software or hardware beyond what is necessary to use ClearScale Managed Services’s Subscription Services as permitted under this Agreement. Information that is already in the public domain through no fault of the receiving party, or was already known by the receiving party without breaching a confidentiality obligation, shall not be treated as Confidential Information hereunder. Nothing in this Agreement shall prohibit ClearScale Managed Services from using any aggregated data in any format for any purpose, provided that such data cannot be identified to or associated with Customer. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Both ClearScale Managed Services and Customer agree that any breach related to Confidential Information may cause irreparable harm to the owning party. As a result of any such breach, the owning party shall be permitted to seek injunctive relief to prevent and limit any such harm.
8.Warranty & Disclaimer.
8.1 Subscription Services Warranty. ClearScale Managed Services warrants that the Subscription Services will operate in conformance with the Documentation in all material respects. In the event Customer notifies ClearScale Managed Services in writing of a non-conformity with the above warranty during the applicable subscription term, ClearScale Managed Services will correct any such non-conformity as Customer’s sole and exclusive remedy and ClearScale Managed Services’s sole and exclusive liability. If ClearScale Managed Services cannot substantially correct the deficiency in a commercially reasonable manner, customer may end the deficient service and ClearScale Managed Services will refund to customer the fees for the terminated service that customer pre-paid to ClearScale Managed Services for the period following the effective date of termination.
8.2 Other Services Warranty. ClearScale Managed Services warrants that the Other Services will be performed in a professional and workmanlike manner in accordance with the Documentation in all material respects. In the event of any non-conformity in the performance of the Other Services, as Customer’s sole and exclusive remedy and ClearScale Managed Services’s sole and exclusive liability, ClearScale Managed Services will re-perform any material non-conformity following Customer’s notice to ClearScale Managed Services in writing of such material non-conformity provided such notice is received within ten (10) days after completion of the relevant Other Services.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, DOCUMENTATION AND OTHER SERVICES ARE PROVIDED "AS IS”. CLEARSCALE MANAGED SERVICES EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, TIMELINESS, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limiting the foregoing and except as explicitly set forth herein, ClearScale Managed Services makes no warranty that the Subscription Services or Other Services will be error-free, complete, free from interruption or failure, or absolutely secure from unauthorized access.
9.Indemnification.
9.1 By ClearScale Managed Services. Subject to the below, ClearScale Managed Services will defend, indemnify, and hold harmless Customer from and against any and all claims, losses, liabilities, damages and expenses (including, without limitation, reasonable attorneys’ fees) finally awarded to the extent arising from any claim brought against Customer by a third party alleging that the Subscription Services infringes a third party’s U.S. intellectual property right (“Claim”) provided that: (a) Customer promptly notifies ClearScale Managed Services in writing of its notification of a Claim such that ClearScale Managed Services is not prejudiced by any delay of such notification; (b) ClearScale Managed Services will have sole control over the defense and any settlement of such Claim; and (c) Customer will provide reasonable assistance in the defense of same. ClearScale Managed Services will reimburse Customer for reasonable expenses incurred in providing such assistance. ClearScale Managed Services shall not enter into any such settlement agreement which imposes an obligation on Customer without Customer’s prior written consent which shall not be unreasonably withheld or delayed. Customer may participate in the defense or settlement of a Claim with counsel of its own choosing and at its own expense, however, Customer shall not enter into any settlement agreement or other settle any such Claim without ClearScale Managed Services’s prior written consent.
9.2 Infringement Remedies. Following notice of an infringement claim, and in the event an injunction is sought or obtained against use of the Subscription Services subscribed to hereunder or in ClearScale Managed Services’s opinion is likely to be sought or obtained, ClearScale Managed Services shall, at its option and expense, either: (a) procure for Customer the right to continue to use the Subscription Services as contemplated herein; or (b) replace or modify the Subscription Services to make Customer’s use non-infringing while being capable of performing the same function without material degradation. In the event the options set forth in sections (a) and (b) herein above, are not reasonably available, then ClearScale Managed Services may in its sole discretion and upon written notice to Customer, terminate the impacted Subscription Services and provide Customer a pro-rata refund representing the portion of any fees previously paid for the unused portion of the terminated Subscription Services. THIS SECTION STATES CLEARSCALE MANAGED SERVICES’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT RELATED TO THE SUBSCRIPTION SERVICES.
9.3 By Customer. Customer will defend, indemnify, and hold harmless ClearScale Managed Services from and against any and all claims, losses, liabilities, damages and expenses (including, without limitation, reasonable attorneys’ fees) to the extent arising from any claim brought against ClearScale Managed Services by a third party alleging harm caused by Customer’s use of the Subscription Services or Other Services to the extent such use is not in accordance with this Agreement, the AUP or the Documentation, provided that ClearScale Managed Services grants Customer sole control over the defense of such claim and provides reasonable assistance at Customer’s expense. Customer shall not enter into any settlement agreement that imposes any obligation on ClearScale Managed Services without ClearScale Managed Services’s prior written consent.
10.Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY, THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF SHALL BE LIMITED TO THE SUM OF AMOUNTS PAID OR PAYABLE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11.Compliance with Laws and Privacy.
The Parties agree to comply with all applicable local, state, national and foreign laws, rules and regulations in connection with their performance, access and/or use of the Subscription Services, including but not limited to those pertaining to data privacy, under this Agreement. The Parties acknowledge and agree that with respect to personal data to which ClearScale Managed Services may have access, ClearScale Managed Services shall: (a) use it solely for the purpose of providing the Subscription Services; (b) process it only in accordance with Customer’s instructions; (c) apply reasonable industry accepted technical organization measures to prevent unauthorized or unlawful processing; and (d) Customer is the data controller and retains full responsibility for the data processed on its behalf by ClearScale Managed Services acting as a data processor.
12.Non-Solicitation.
During the term of this Agreement and for twenty-four (24) months thereafter, Customer shall not, directly or indirectly, hire or solicit any employee or consultant of ClearScale Managed Services, or encourage or induce any employee or consultant of ClearScale Managed Services to terminate his or her relationship with ClearScale Managed Services; provided, however, that the foregoing shall not prohibit Customer from recruiting generally in the media or from hiring an employee or consultant of ClearScale Managed Services who answers any general advertisement or otherwise voluntarily applies for hire without having been specifically targeted by Customer.
13.Publicity
Customer agrees that ClearScale Managed Services may publish a description of Customer’s use of the Subscription Services and identify Customer as a ClearScale Managed Services customer on any of ClearScale Managed Services’s websites, customer lists, press releases, and/or other marketing materials.
14.General.
This Agreement represents the entire understanding between the Parties with respect to its subject matter and supersedes any previous communication or advertising that may exist, including any online agreement presented to Customer during Customer’s registration or any additional terms or conditions submitted by Customer, whether part of a purchase order or otherwise. In the event of a conflict between these Terms and Conditions and any Order or SOW, the terms of this Agreement shall govern and take precedence. This Agreement may only be modified by a writing that is executed by authorized representatives of both Parties. No provision of this Agreement shall be deemed waived or modified except in a writing signed by an authorized representative of the respective party. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Any payment obligations which accrued prior to termination or expiration of this Agreement or any Order as well as the rights and obligations of ClearScale Managed Services and Customer which, by their nature should survive, shall survive any expiration or termination of this Agreement. All notices or approvals under this Agreement shall be directed to the addresses set forth on the cover page, as may be revised from time to time. Neither party shall be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations. Customer may not assign this Agreement without the prior written consent of ClearScale Managed Services, which shall not be unreasonably withheld, provided that no such ClearScale Managed Services consent will be required for an assignment pursuant to a merger or sale of all or substantially all of Customer’s assets; provided further that such assignee is not a direct competitor of ClearScale Managed Services. Neither party is an agent, representative, joint-venturer, or partner of the other party. Neither party shall have any right, power or authority to bind, enter into any agreement or incur any obligation on behalf of, the other party. Each party shall bear its own costs and expenses in performing this Agreement. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to this Agreement in any manner whatsoever. The parties will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties agree and consent to the exclusive jurisdiction and venue of such courts.