Terms of Service
THIS TRIAL SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A BINDING AGREEMENT BETWEEN ClearObject CORPORATION (“ClearObject”) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”.
Access to Services. This Agreement states the terms and conditions subject to which ClearObject grants You a non-exclusive license from the date on which you accept this Agreement (“Trial Term”) access to ClearObject’s Virtual Private Cloud (“Services”) solely for Your internal evaluation purposes. Access is limited to the total number of authorized named individuals identified in this Agreement (“Subscriber”).
Each party in its performance of its obligations pursuant to this Agreement shall comply with all applicable laws, including without limitation, all applicable export laws, data privacy laws, and laws regarding personal data. You will not use the Services: (a) for any unlawful, infringing, defamatory, libelous, fraudulent, obscene or pornographic purpose, or in violation of any right of publicity, data privacy law or other applicable law; (b) to send unsolicited e-mail of any kind; (c) to send any virus, worm, trojan horse or other harmful code or attachment; or (d) to alter, steal, corrupt, disable, destroy, trespass, circumvent or violate any security or encryption of any computer file, database, or network. You shall not: (e) cause or permit copying, extraction, modification, disassembly, reverse engineering of all or any portion of: (i) the Services; or (ii) the proprietary technology and content owned by ClearObject or its licensors, including, without limitation, software, hardware, processes, algorithms, user interfaces, audio and visual information, know-how, techniques, designs and other tangible or intangible material or information which enable the provision of the Services (“ClearObject Technology”); (f) distribute, license, disclose, market, rent, lease, transfer or provide to any third party any portion of the Services, or ClearObject Technology; (g) use the Services, or ClearObject Technology to build a competitive product, or to provide third-party training or consulting services, or publish the results of any benchmark of the Services, or any competitive analysis involving the Services, or ClearObject Technology.
Reserved Rights. ClearObject and its third-party licensors retain title to all portions of the Services, the ClearObject Technology, any suggestions, ideas, enhancement requests, feedback, or other information provided by You or any other party relating to the Services, and all intellectual property rights in the foregoing. All rights not expressly granted pursuant to this Agreement are reserved by ClearObject.
Obligation of Confidence. YOU ARE STRONGLY DISCOURAGED FROM USING OR STORING ANY INFORMATION, SOFTWARE APPLICATION, DATA OR CONTENT OF A SENSITIVE, PROPRIETARY OR CONFIDENTIAL NATURE ON THE SERVICES DURING THE TRIAL TERM. ClearObject CANNOT AND DOES NOT GUARANTEE THE SECURITY, INTEGRITY, STORAGE OR RETRIEVAL OF ANY INFORMATION, SOFTWARE APPLICATION, DATA OR CONTENT YOU PLACE ON THE SERVICE, AND YOU ASSUME ALL RISKS IN CONNECTION THEREWITH. Except for the foregoing, neither party (“Recipient”) shall use or disclose to third parties any non-public information (“Confidential Information”) disclosed by the other party (“Discloser”). The Services and ClearObject Technology shall constitute ClearObject’s Confidential Information. Use of the Confidential Information of the Discloser shall be limited by the exercise of reasonable care only to those employees and authorized contractors of Recipient with a need to know such information to carry out the activities hereunder and who are subject to terms no less restrictive than those set forth herein. Notwithstanding any other provision in this Agreement, You shall not have any confidentiality obligation to ClearObject under this Section 4, with respect to any information provided or made available by ClearObject hereunder, and ClearObject shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by You hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
Term and Termination. The Initial Term will automatically expire at 11:59 PM GMT on the 15th of every month, unless earlier terminated by either party for any reason or no reason upon written notice to the other party. Upon termination or expiration of this Agreement for any reason, (c) Your access to the Services shall terminate, and (d) each party shall return and/or promptly destroy the other party’s Confidential Information. YOU ARE SOLELY RESPONSIBLE FOR EXPORTING ANY INFORMATION, SOFTWARE APPLICATIONS, DATA OR CONTENT BEFORE THE END OF THE TRIAL TERM OR SUCH WILL BE PERMANENTLY LOST.
Authorization and Account Information. You represents and warrants that: (i) the information You provides in connection with Your registration for the Services is accurate and complete; (ii) if You are registering for the Services as an individual, that You are at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if registering for the Services as an entity or organization, (a) You are duly authorized to do business in the country or countries where it operates, (b) the individual agreeing to be bound by the terms of this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Yours, and (c) Your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account.
Warranty Disclaimer. THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ClearObject DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ClearObject AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICES WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. ClearObject AND ITS SUPPLIERS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS.
LIMITATION OF LIABILITY. ClearObject IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ClearObject’S LIABILITY ARISING OUT OF THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED $1,000.
This Agreement is governed by the laws of the State of Indiana, excluding its conflicts of laws provisions. All notices required or permitted under this Agreement will be in writing, will reference this Agreement and will be deemed given when: (i) delivered personally; (ii) upon receipt of registered or certified mail, return receipt requested; (iii) when sent by confirmed facsimile. Notices to each party shall be sent to the attention of Legal Department. ClearObject may give a general notice related to the Services by electronic mail to Your e-mail address on record in ClearObject’s account information. If any provision of this Agreement is unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right. This Agreement constitutes the entire agreement between the parties concerning the Services, and replaces and supersedes any prior verbal or written understandings, communications, and representations between the parties. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.
Service level agreement
1. Application Availability
ClearObject use its reasonable efforts to ensure that the Applications are Available 99.5% of the time during each calendar month (“Target Availability”).`.
2. Definition of Availability
“Availability” or “Available” means that Customer is able to log on to the Application via the ClearObject Infrastructure, with the following exceptions:
2.1 Scheduled maintenance, including but not limited to ClearObject’s planned weekly maintenance window of 6:00PM Friday through 11:00PM Saturday, Central
Standard Time and any other maintenance periods for which 24 hour notice has been given;
2.2 Any period in which Customer is unable to use the Application due to Customer’s conduct or misuse, or the exercise by ClearObject of its rights of suspension or termination of Customer’s account; and
2.3 Any circumstances outside of the control of ClearObject or its third party providers, including but not limited to the following:
(a) a failure or malfunction resulting from scripts, data, applications, equipment, or services provided and/or performed by Customer;
(b) outages initiated by ClearObject or its third party providers at the request or direction of Customer for maintenance, back up, Application upgrades, Application testing, or other purposes;
(c) outages occurring as a result of any actions or omissions taken by ClearObject or its third party providers at the request or direction of Customer;
(d) outages resulting from Customer’s equipment and/or third party equipment not within the sole control of ClearObject or its third party providers;
(e) events resulting from an interruption or shut down of the Application due to circumstances reasonably believed by ClearObject or its third party providers to be a significant threat to the normal operation of the Application, the facility from which the Application is provided, or access to or integrity of Customer’s data (e.g., a hacker or a virus attack);
(f) outages due to system administration, commands, file transfers performed by Customer’s representatives;
(g) any unavailability caused by circumstances beyond ClearObject’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ClearObject employees), failures of telecommunications or electrical power supplies, network intrusions or denial of service attacks, other computer, Internet service providers or hosting facility failures or delays involving hardware, software or systems not within ClearObject’s or its service providers’ possession or reasonable control, or that are not reasonably preventable by ClearObject or its service providers;
(h) lack of availability or untimely response time of Customer to respond to incidents that require Customer’s participation for source identification and/or resolution, including meeting Customer’s responsibilities for any services;
(i) outages required to implement Application or other updates required by law, or to avoid an infringement.
In the event that ClearObject determines that during the most recently completed month, ClearObject did not meet the Target Availability, then ClearObject shall provide Customer, as the sole and exclusive remedy, a service credit equal to one day’s pro rata monthly fee for the Service for each day in which the Target Availability was not met. In no event shall total credits for the month exceed fifty percent (50%) of the monthly fee.
4. Credit Request
In order to receive a credit under this service level commitment, Customer must request it simply by emailing ClearObject at sales@ClearObject.com, within five days of the end of the applicable month. If Customer is past due or in default with respect to any payment or any material contractual obligations to ClearObject, Customer shall not be eligible for any credit under this Service Level Agreement. The service credit is valid for up to six (6) months from the quarter for which the credit was issued. ClearObject shall be solely responsible for calculating the actual Availability using ClearObject’s system logs and other records
5. Exclusion of Sandbox and Beta Accounts
Pre-production and other test environments are expressly excluded from the Target Availability commitment.