This ClearBlade SAAS Agreement (the Agreement ) is between you (“you,” “your” or “Client”) and ClearBlade, Inc. (“Company,” “we,” “us” or “ClearBlade”). ClearBlade and Client agree as follows:
BY CLICKING THE “ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SUBSCRIPTION SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SUBSCRIPTION SERVICES.
I. DEFINITIONS
A. Authorized Persons means an individual or entity that is authorized by Client in writing to use the Services, or to whom Client (or ClearBlade at Client’s request) have supplied a user identification and password. Authorized Persons may include, for example, Client’s employees, consultants, and contractors. Authorized Persons exclude competitors of ClearBlade.
B. Client Content means the electronic data or information submitted by Client or Authorized Persons to the Services.
C. Platform means the ClearBlade proprietary technology used by ClearBlade in providing the Subscription Service including (i) all related intellectual property, ideas, concepts, systems, software, hardware, user interfaces, architecture, products, documentation, tools, utilities, templates, forms, content, techniques, methods, processes, algorithms, designs, schemas for network or system connectivity, know-how, trade secrets and other technologies, implementations and information, and (ii) all related intellectual property worldwide whether in printed, written, electronically reproduced or any other form and whether owned by ClearBlade or any Supplier or licensed to ClearBlade or any Supplier and all enhancements, derivatives, improvements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement or otherwise.
D. Subscription Service means the ClearBlade proprietary software (but excluding any third-party materials) provided and made available as software-as-a-service that is accessible through the Platform.
II. SERVICE
A. General. For the term specified in your order, ClearBlade will implement and operate the Platform in connection with making the Subscription Service available to users. Client acknowledges and agrees that the Service may be dependent upon the maintenance and warranty policies of third parties.
B. Technical Support. ClearBlade shall provide technical support for the Subscription Service 9am – 6pm ET, Monday through Friday, excluding ClearBlade-observed holidays (“Technical Support Hours”). Outside of Technical Support Hours, Client can reach ClearBlade support at support@clearblade.com.
III. FEES AND PAYMENT TERMS
A. Fees. Client agrees to pay ClearBlade the fees in U.S. dollars in the amounts and pursuant to the applicable order (collectively, “Fees”).
B. Late Fees; Suspension. Client is responsible for timely payments of Fees. Fees over thirty (30) days late will be subject to a late fee, until paid, at the rate of 1.0% per month or the maximum amount permitted by law, whichever is less. In the event Fees are not paid within thirty (30) days of the invoice due date, ClearBlade shall have the right to suspend the Services until payment is received in full.
C. Taxes. Client will pay any applicable sales, use, property, license, value added, withholding, excise or similar tax, federal, state or local, levied on the services performed and the rights granted under this Agreement and any related duties, tariffs and similar charges invoiced by ClearBlade to Client. This section does not apply to taxes based on ClearBlade’s income.
IV. PROPRIETARY RIGHTS AND LICENSES
A. ClearBlade License to Client.
1. Limited License. Subject to payment of the Fees and compliance with the terms of this Agreement, ClearBlade hereby grants to Client a limited, non-exclusive and non-transferable (except as may be expressly permitted in this Agreement) license to Client to use the Subscription Services, solely for the internal business purposes of Client and solely during the Term. Except for the limited rights and licenses expressly granted to Client hereunder, no other license is granted, no other use is permitted.
2. Ownership. ClearBlade and its licensors own all right, title and interest in and to the Platform, Subscription Services, Aggregated Statistics and the documentation, as well as any modifications and derivative works thereof (collectively, “ClearBlade IP”). Subject to the limited rights expressly granted hereunder, ClearBlade reserves all rights, title and interest in and to the ClearBlade IPincluding all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to Client hereunder other than as expressly set forth herein.
B. Restrictions. Client shall not (i) modify, copy or create any derivative works based on the ClearBlade IP; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, offer in a service bureau, or otherwise make the ClearBlade IP available to any third party, other than to Authorized Persons as permitted herein; (iii) reverse engineer or decompile any portion of the ClearBlade IP, including but not limited to, any software utilized by ClearBlade in the provision of the ClearBlade IP; (iv) access the ClearBlade IP in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the ClearBlade IP.
C. Client License to ClearBlade. Subject to the terms and conditions of this Agreement, Client hereby grants to ClearBlade the right and license to reproduce, perform, display, distribute and transmit the Client Content, in connection with providing the Subscription Service. Except for the limited rights and licenses expressly granted herein, no other license is granted, no other use is permitted and Client shall own and retain all right, title and interest (including all intellectual property and goodwill associated therewith) in and to the Client Content. Client understands that it has an independent duty to comply with any and all laws applicable to it in connection with its provision of Client Content to ClearBlade. As between ClearBlade and Client, Client owns its Client Content.
V. WARRANTIES, INDEMNITIES AND LIABILITY
A. Warranties
1. Each party warrants that it has the full power, right and authority to enter into and perform its obligations under this Agreement without the consent, approval or authorization of any other person or entity, and that its execution, delivery and compliance with the terms of this Agreement do not and will not conflict with or violate any contract or other agreement to which it is a party or by which it is bound.
2. Client warrants that (a) it owns all rights, title and interests in and to the Client Content, (b) that Client has otherwise secured all necessary rights in the Client Content as may be required to use and distribute Client Content under this Agreement.
3. ClearBlade will not be responsible or liable for any Subscription Service failure resulting from or attributable to (a) failures in any telecommunications, network or other service or equipment outside of ClearBlade’s facilities, (c) Client’s or any other third party’s products, services, content, negligence, acts or omissions, or (d) any force majeure event or other cause beyond ClearBlade’s reasonable control.
4. CLEARBLADE MAKES NO OTHER WARRANTIES AND, EXCEPT AS OTHERWISE SET FORTH EXPRESSLY IN THIS AGREEMENT, CLEARBLADE HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE WITH RESPECT TO THE SUBSCRIPTION SERVICES AND PLATFORM, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
B. Limitation of Liability
1. CLEARBLADE WILL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL; HOWEVER ARISING AND EVEN IF CLEARBLADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. CLEARBLADE WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE PRIOR SIX (6) MONTHS FEES PAID OR PAYABLE UNDER THIS AGREEMENT.
3. THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES APPLY REGARDLESS OF THE FORM IN WHICH AN ACTION (LEGAL, EQUITABLE OR OTHERWISE) IS BROUGHT, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE LIMITATIONS OF LIABILITIES, DISCLAIMERS OF WARRANTIES, EXCLUSIVITY OF REMEDIES, AND OTHER LIMITATIONS SET FORTH HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES (WITHOUT WHICH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WOULD NOT OCCUR) AND WILL APPLY EVEN IF A REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
VI. TERM AND TERMINATION
A. Term. This Agreement commences on the Effective Date and continues until the term for each order has expired or this Agreement is terminated.
B. Termination. ClearBlade may terminate this Agreement and each order (a) at any time subject to thirty (30) days written notice to you, or (b) for material breach if ClearBlade gives you written notice of default setting forth the nature of such material breach and the breach is not corrected within thirty (30) days after receipt of such notice. You may terminate your order with ClearBlade at any time subject to written notice and such termination shall be effective as of the first day of the next monthly billing cycle.
C. Effects of Termination. Upon any termination or expiration of this Agreement, all rights, obligations and licenses of the parties will cease, except that (a) all obligations that accrued prior to the effective date of expiration will survive and (b) the provisions of the sections entitled Proprietary Rights, Payments, Warranties and Disclaimers, Indemnity, Limitation of Liability and General will survive.
VII. GENERAL
A. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, ClearBlade may monitor Client’s use of the Subscription Services, and collect and compile data and information related to Client’s use of the Subscription Services to be used by ClearBlade, in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Services (“Aggregated Statistics”). You acknowledge that ClearBlade may compile Aggregated Statistics based on Client Content input into the Subscription Services. B. Confidentiality. The receiving Party of any Confidential Information will use the disclosing Party’s Confidential Information solely to perform its obligations and exercise its rights under this Agreement. “Confidential Information” shall mean with respect to either Party any information disclosed by such Party to the other Party in connection with this Agreement and its terms. The receiving Party will take all precautions necessary to safeguard the confidentiality of the disclosing Party’s Confidential Information. The receiving Party will have no confidentiality obligation hereunder with respect to any portion of the disclosing Party’s Confidential Information that (a) the receiving Party independently developed without reference to the Confidential Information from the disclosing Party, as proven by the written records of the receiving Party, (b) the receiving Party lawfully obtained from a third party under no obligation of confidentiality, (c) is or becomes available to the public other than as a result of an act or omission of the receiving Party or any of its employees or (d) the receiving Party is compelled to disclose pursuant to legal process provided by a court of competent jurisdiction or government body or agency. In the event the receiving Party is required to disclose Confidential Information of the disclosing Party pursuant to legal process provided by a court of competent jurisdiction or government body or agency, such Party (provided that notification is not prohibited by such process) will promptly notify the disclosing Party to allow intervention in response to such process.
C. Entire Agreement. This Agreement (including the Appendices) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
D. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, USA, without regard to its conflicts of law provisions. The provisions of any federal or state Uniform Computer Information Transactions Act shall not apply. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The federal and state courts in Austin, Texas shall have exclusive jurisdiction with respect to any action arising out of, relating to or in any way connected with this Agreement, its negotiation or termination, or the Services.
E. Notices. All notices under this Agreement will be in written English, effective upon receipt and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice, and with copy to each party’s General Counsel.
F. Publicity. ClearBlade may add Client’s name and logo to ClearBlade’s published list of customers as long as Client continues to be a subscriber of the Services. At Client’s sole discretion and if Client is satisfied with ClearBlade’s work, Client agrees to provide to ClearBlade the following, which ClearBlade may use in verbal, written and electronic formats and communications including publicly facing Web and Social media sites and marketing materials.
1. A written reference/quotation from an executive at Client in reference to this project.
2. A video testimonial, at ClearBlade’s sole expense.
3. A case study, which ClearBlade will create at its expense and Client may approve.
G. Independent Contractors; Legal Review. The parties are independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or clients for any purpose. As such, each party shall be responsible for seeking their own legal counsel pertaining to this Agreement and the Service.
H. Assignment. Subject to ClearBlade’s right to utilize Suppliers to supply all or part of the Services, neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to an affiliate or to a successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and insure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be void.
I. Injunctive Relief. Each party acknowledges and agrees that a breach of any of the provisions contained in this Agreement may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and the non-breaching party may apply to any court of competent jurisdiction for injunctive relief or other equitable remedy to enforce or prevent any breach of the provisions of this Agreement.