Last modified: 12/5/20
Company provides access to the Website solely on the terms and conditions set forth in this Agreement and on the condition that you accept and comply with them. If you do not accept all of the terms and conditions of this Agreement, do not access the Website.
In consideration of the mutual benefits derived by each party, by using the Website, you and Company agree to the following:
3. Prohibited Uses
⦁ In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
⦁ To impersonate or attempt to impersonate Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
⦁ To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Company or users of the Website, or expose them to liability.
2. Additionally, you agree not to:
⦁ Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
⦁ Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
⦁ Use any device, software, or routine that interferes with the proper working of the Website.
⦁ Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
⦁ Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
⦁ Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
⦁ Otherwise attempt to interfere with the proper working of the Website.
4. Reliance on Information Posted
1. The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
2. This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
5. Changes to the Website. We may update the content on the Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
8. Linking to the Website and Social Media Features. You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express consent.
9. Links from the Website. If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
10. Geographic Restrictions. The owner of the Website is based in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
11. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
12. YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITEIS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITEARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
13. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
14. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12. Limitation on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE, SERVICES PROVIDED BY COMPANY AS INDICATED ON THE WEBSITE, OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. Governing Law and Jurisdiction.
16. To the extent the Service allows uploading or posting of content or data, you will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third party rights. By providing any public posting, you (i) grant to Company a royalty-free, non-exclusive, perpetual, irrevocable, sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works (including products) from, distribute, and display such content throughout the world in all media; (ii) agree that we shall be free to use any ideas, concepts or techniques embodied therein for any purpose whatsoever, including, but not limited to, developing and marketing products or services incorporating such ideas, concepts, or techniques, without attribution, without any liability or obligation to you; (iii) grant to Company the right to use the name that you submit in connection with such content. In addition, you hereby waive all moral rights you may have in any public posting. Any suggestions, feedback, content or communications you transmit to us, including without limitation any data, questions, comments, suggestions, in any form or media, that you submit to us, in any form or format (collectively, "Feedback"), will be owned by us, with the rights to fully exploit such Feedback.
17. Beta Services. If and when the Service contains any content, software or services designated as, pilot, beta, test, evaluation or other similar (“Beta”), Clue has no obligation to provide support, maintenance, upgrades, modifications or new releases during the Beta period and any commitments provided for elsewhere in this Agreement shall not apply, and any Service provided as Beta is/are provided “as is” and without any warranties, notwithstanding anything to the contrary herein.
EULA LICENSE TERMS
These EULA License Terms constitute a binding agreement by and between Clue Insights, Inc. (“Clue”), and the customer (“Customer”) signing up via any order form, purchase order or other similar document mutually agreed by the parties (e.g., when signed if a physical document, or when entered into online via a Clue controlled website or app online) (collectively, each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”). These SaaS Subscription License Terms together with any Order Form(s), are collectively, referred to as the “Agreement”.
WHEREAS, Clue develops and licenses access to the hosted software application subscription service(s) as described on the applicable Order Form and as further described more fully herein (collectively, the “Service”); and
WHEREAS, Customer would like to subscribe to and access the Service;
NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows:
1.1. Service License Grant. Subject to the terms and conditions of this Agreement, Clue hereby grants to Customer a limited, nonexclusive, non-transferable license to access and use the Service during the Term, solely by the number of authorized users, assets tracked, or other applicable variables, as set forth on the applicable Order Form, and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation”).
1.2. Consulting Services. If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) to be attached hereto and made a part hereof, Clue may also provide certain consulting services or other similar professional services (“Consulting Services”) in addition to the subscription Service. Consulting Services may include, without limitation, installation services and/or training. Unless otherwise mutually agreed in the applicable SOW or Order Form, all Consulting Services will be paid for and performed on a time and materials basis, at Clue’s standard hourly rates. Customer shall reimburse Clue for actual and reasonable travel and travel-related expenses incurred by Clue in connection with the Services or any Consulting Services provided hereunder.
1.3. Beta, Trial, Pilot or Evaluation License. If and when the Service is licensed on a trial, pilot, beta, test, evaluation or other similar trial basis (“Evaluation License”), Clue has no obligation to provide support, maintenance, upgrades, modifications or new releases during the Evaluation License period and any commitments provided for elsewhere in this Agreement shall not apply, and any Service provided for Evaluation License purposes is provided “as is” and without any warranties, notwithstanding anything to the contrary herein. The term length of any Evaluation license shall be as mutually agreed in writing, but if no period is specified, then it shall not exceed thirty (30) days from the earlier of installation (if applicable) or first use, unless otherwise agreed by Clue. Evaluation License use of the Service is intended solely for Customer to determine the compatibility of the Service with Customer’s business needs, and may be limited to use in a non-production test environment.
1.4. Hardware and Equipment. If and only if Customer obtains any hardware and/or equipment from Clue (such as, without limitation, GPS trackers), as set forth on any Order Form then the additional terms and conditions set forth on Schedule 1 attached hereto and made a part hereof shall apply.
1.5. Support. Customer shall use best efforts to provider reasonable first level or tier 1 support to its own users, before coming to Clue for second level support. Customer shall designate a small number of administrative users to come to Clue for Support, rather than allowing all employees and contractors of Customer to contact Clue directly when they have questions or issues that can be answered by an internal Customer resource.
2. Proprietary Rights.
2.2. Clue Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Clue owns and shall at all times retain all rights in and to the Services, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Clue Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Clue Technology”). Subject only to Section 2.1 above, Clue shall own all rights to (i) any data input into the Services by or on behalf of Clue, and (ii) any aggregated and anonymized data extracted or derived from the Service, including all aggregated and anonymized usage data, statistical data, transactional data, metadata, market data and other aggregated and anonymized data collected from user data and files (collectively, “Clue Data”). Without limiting the generality of the foregoing, Clue reserves the right to create and market public indexes, analysis or insights created from such data. Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Services provided by Clue, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Clue Technology.
3. Fees; Payment Terms. Customer shall pay to Clue in immediately available US dollars, the applicable subscription and other fees in the amounts and timing as specified in any Order Form (the “Fees”). If no payment schedule is specified in the applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement, or monthly, based on Clue policies. Pricing may vary based on the number of users, assets tracked, or other variables, as set forth in an Order Form, and therefore pricing may vary month to month based on actual usage, although Clue reserves the right to set prices by tiers or minimums/floors, such that pricing can go up with additional usage, but does not go down as you use the service less. The Fees, and any fees for any additional services, equipment or subscription extensions which may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement, invoices will be stated in United States dollars and shall be due and payable within 30 days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of, 1.5% per month or the maximum amount allowed by law, with respect to the overdue amount. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using your account. By completing and submitting any credit card or other payment authorization through the Services, you are authorizing Clue to charge the fees to the account you identify. You must keep all billing information, including payment method, up to date. You agree to pay us for all charges incurred under your account, including all applicable taxes, fees, and surcharges. You authorize and direct us to charge your designated payment method for these charges or, if your designated payment method fails, to charge any other payment method you have on file with us.
4. Term; Termination. The initial term length shall be as specified the initial Order Form; provided that if no initial term length is specified in any Order Form then the initial term shall be one year (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Clue or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Clue that Customer has complied with these requirements; (c) Clue shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Section 2 and Sections 5 - 10.
6. Third Party Claim Defense and Indemnification.
6.1 Intellectual Property Infringement. Clue shall (a) indemnify and hold harmless Customer from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of any third party claim that the Service infringes a United States patent, copyright, trademark, or other US intellectual property right of such third party, and (b) pay directly or indemnify Customer with respect to any judgment or settlement amount awarded in connection with such claim. The foregoing obligations are contingent upon Customer providing Clue with: (i) prompt notice of such claim (and in any event notice in sufficient time for Clue to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Clue at Clue’s expense. If Customer’s use of the Service is, or in Clue’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Clue may: (x) substitute for the infringing element of the Service functionally similar software; (y) procure for Customer the right to continue using the Service; or, (z) terminate this Agreement and refund to Customer that portion of any prepaid Service Fee associated with any unused portion of the Term. The foregoing defense and indemnification obligations of Clue shall not apply to the extent the alleged infringement arises out of the alteration or modification of the Services, use or combination of the Service with other non-Clue products, services, hardware, software or processes, or any unauthorized use of the Service. In addition, Clue’s obligations and liabilities under this Section shall be governed by the limitations on liability set forth in Section 7 below and shall be capped at and included within any calculation of direct damages under that Section. THIS SECTION 6 SETS FORTH CLUE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICE, OR ANY CONSULTING SERVICES.
6.2 Customer Indemnification Obligations. Customer shall indemnify and hold Clue harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any breach by Customer of this Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content, data or other materials input into the Service, or otherwise provided, by or on behalf of Customer; (iii) any actual or alleged non-compliance by Customer with applicable laws and regulations; (iv) Customer’s actual or alleged violation of third party privacy rights, including without limitation any breach of the scope of the license granted herein; or (v) Customer’s violation of Clue’s intellectual property rights, including without limitation any violation of Sections 2 or 9.1.
7. Limitation of Damages. EXCEPT FOR THE EXPRESS INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPT FOR BREACHES OF SECTIONS 2, 8 OR 9 HEREOF, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE TERM (IN ADDITION TO ANY FEES PAID BY CUSTOMER). ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, CLUE DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE AND CUSTOMER AGREES TO ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE SERVICE. Customer is responsible for all use of the Services AND by all end users, including, without limitation, as applicable, any employees, agents and customers. Customer is responsible for communicating the terms and limitations in this Agreement to any and all such end users, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON CLUE’S LIABILITY. ANY USE OF THE SERVICES BY ANY PARTY, INCLUDING CUSTOMER, IN ANY HIGH RISK USE CASE (AS DEFINED BELOW) IS DONE AT THE USER’S OWN RISK, WITHOUT ANY WARRANTY. AS USED HEREIN, A “HIGH RISK USE CASE” IS ANY USE WHERE THE FAILURE OF THE SERVICE COULD CAUSE SERIOUS RISK, INCLUDING RISK OF INJURY TO PERSONS OR PROPERTY, OR A LIFE-THREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, OPERATION OF HEAVY MACHINERY, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, EMERGENCY SERVICES, EMERGENCY WEATHER ALERTS, OR MILITARY APPLICATIONS. Customer may use the Services for informational purposes only, as an aid, but only as one information source among many, and not as the sole basis for making any decisions; Customer must use proper due diligence and use its own business judgment when making any decisions based on any information, analytics or reports derived from the Services.
8.1. Confidential Information. Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party's business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, and any performance, warranty and like information relating to the Service (by whomsoever generated or communicated) will be considered Confidential Information of Clue. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.
8.2. Return of Confidential Information. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this Section.
8.3. Remedies. Each party acknowledges that any breach of any of its obligations with respect to the other party's Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.
9. License Restrictions.
9.1 General Restrictions. Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software in any form; (b) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, reverse compile, disassemble, or translate the Service, or software or create any derivative works thereof; or (c) use the Service on behalf of any third party or for any purpose other than as described in this Agreement; (d) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or use it as a service bureau; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (f) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorized access to the Service or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP Rights and/or Clue’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the software or on any copies made in accordance with this Agreement; (i) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Clue’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Service, or Documentation, or on any copies made in accordance with this Agreement; (j) use, or authorize or permit the use of, the Service except as expressly permitted herein; (k) use the Service to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third party. The Service may be used only by Customer (i) for its internal business purposes and only for the direct benefit of Customer; (ii) only by the number of persons for whom a license fee has been paid, and all such use may only be by those persons using the Service for the benefit of Customer in the course and scope of their employment, subject to the terms hereof; (iii) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws, rules, regulations and industry standards, and in compliance with all Documentation and instructions provided by Clue. In order to access some features of the Service, Customer may have to register or create an account. Customer may never use another's account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Clue immediately of any breach of security or unauthorized use of its account. Passwords must not be shared. Clue reserves the right to reject passwords that are inappropriate, and/or to suspend individual users who do not comply with the applicable terms and/or the Customer as a whole if in Clue’s discretion, the violations of one or more users so merit. Customer is solely responsible for whether and how it configures or sets up the Service, or which options it uses (for example, without limitation, Customer might wish to set up certain users as administrators with ability to add and remove regular users, if the Service so permits). Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, or the content therein. To the extent the Service allows uploading or posting of content or data, you will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third party rights.
9.4 Internet Access and Equipment. You are responsible for maintaining your own access to the internet, and for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like, and for maintaining the security thereof.
9.5. Message Content. Among other things, the Services can be used to send messages or post notices or post or send other content. Customer or end users own (and are responsible for) the content you or they send or post within or through the Service (though Clue may, where consistent with laws, may own the rights to certain metadata we collect from or about the message(s) or usage). Customer may lose rights to any content it posts publicly. Customer shall comply with all laws, rules and regulations now or hereafter promulgated by any government authority or agency that are applicable to its use of the Services, the messages or content it posts or sends through the Service, or the transactions contemplated in this Agreement, including without limitation, the Telephone Consumer Protection Act of 1991 (“TCPA”), and all industry standards, self-regulatory guidelines and best practices, including without limitation as promulgated by the Cellular Telecommunications Industry Association (“CTIA”). As between Customer and Clue, Customer is solely responsible for compliance with all such laws with respect to its use of the Services, and any messages or content it posts or sends through the Service. Customer shall honor immediately any end user requests to opt-out or stop further messaging and desist from sending any further message following receipt of any such opt-out or stop request. By providing any public posting, or Feedback (defined below), you (i) grant to Company a royalty-free, non-exclusive, perpetual, irrevocable, sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works (including products) from, distribute, and display such content throughout the world in all media and you license to us all patent, trademark, trade secret, copyright or other proprietary rights in and to such content for publication on the Services pursuant to this Agreement; (ii) agree that we shall be free to use any ideas, concepts or techniques embodied therein for any purpose whatsoever, including, but not limited to, developing and marketing products or services incorporating such ideas, concepts, or techniques, without attribution, without any liability or obligation to you; (iii) grant to Company the right to use the name that you submit in connection with such content. In addition, you hereby waive all moral rights you may have in any public posting or Feedback.
9.6 Pass Through Terms (B2B). Except as otherwise provided herein, Services are not permitted to be resold or used for the benefit of third parties, but to the extent mutually agreed by the parties, certain Services may be used by Customer, subject to all other terms and conditions herein, to offer to and for the use of Customer’s clients, customers and end users (collectively, “end users”). Customer may elect to allocate liability between Customer and end users in Customer’s discretion provided that Clue is not responsible for any such liability. Customer shall be responsible for clearly and conspicuously disclosing to end users (including without limitation in any of Customer’s applicable posted terms and conditions and in any written agreements between Customer and its end users): (i) Customer (and not Clue) is solely responsible for all content and any services Customer provides to end users, (ii) that Clue shall have no liability whatsoever to end users, (iii) that Clue is not responsible for any disputes between Customer and Customer’s end users, and (iv) with respect to use of the Services by end users, end users are responsible for and subject to all the same terms as herein, which must be fully disclosed to them by you; all disclaimers, warranty limitations, and limitations of liability, by Clue herein or otherwise with respect to the Services are applicable not only to Customer but also to end users. Customer shall not state or imply otherwise. Customer hereby agrees to indemnify, defend and hold harmless Clue from any for any allegation, loss, liability, claim made against Clue by any end users or otherwise arising out of any breach of this paragraph. Notwithstanding anything to the contrary (including without limitation in Section 2.1), Customer’s end users, when using the Services, are also customers of Clue, solely to the extent necessary to permit Clue the right to collect, store, process and use, any profile data or other data from or about such end users, as its customers, to the extent permitted by applicable laws. Customer is responsible for ensuring that it makes all required disclosures to, and obtains all necessary consents from, end users, to allow such collection, storage, processing and use.
9.7 Feedback. Any feedback, content or communications you transmit to us, including without limitation any feedback, data, questions, comments, suggestions, in any form or media, that you submit to us, whether orally, via e-mail, the Services or otherwise (to the extent excluding any Personally Identifiable Information, collectively, "Feedback"), will be treated as non-confidential and nonproprietary, and we will own the rights to exploit such Feedback.
10.1. Notices. All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by facsimile (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section. Notices to Clue must also include copies delivered to (i) email@example.com; and (ii) 4470 W Sunset Blvd #90656, Los Angeles CA 90027.
10.2. Assignment. Customer may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Clue. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees. The Services shall at all times be hosted by or on behalf of Clue on a server environment of its’ choosing. Clue reserves the right to change the server environment from time to time as it may deem fit, or outsource hosting or other aspects of the Service in its sole discretion, so long as the Service continues to comply with the express requirements of this Agreement.
10.3. Publicity. Customer expressly grants Clue the right to include Customer in a list of customers on Clue's website or other promotional material in relation to the Services for marketing purposes. Customer can deny Clue this right at any time by submitting a written notice, requesting to be excluded from promotional material.
10.4. Waiver. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
10.5. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action. The delayed party shall: (i) give the other party written notice of such cause promptly; and (ii) use its reasonable efforts to correct such failure or delay.
10.6. Entire Agreement; Construction. This Agreement and its Exhibits and Schedules, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.
10.7. Age. You must be at least 18 years of age, and, where law requires an older legal age, of legal age for contractual consent or older to use the Services. Due to the age restrictions, no content or information from the Services falls within the Child Online Privacy Protection Act (“COPA”) and is not monitored as doing so.
10.8. Independent Contractors. The relationship of Clue and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
10.9. Non-Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Clue or (ii) hire or engage for any services any person employed by Clue. In the event of a breach of this non-solicitation clause, Customer agrees to pay Clue compensation equal to Clue's employee's annual salary as liquidated damages, and not a penalty, which Customer agrees is fair and reasonable compensation for Clue.
10.10. Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of the State of California without regard to conflict of laws provisions. The federal and state courts sitting in Los Angeles, CA, shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.11. Modifications to Software, Products, Services & Terms. We reserve the right to modify, update, or discontinue the Services or any other software, products or services at any time with or without notice to you, including without limitation by adding or subtracting features and functionality, third party content, etc. In the event of such modification or discontinuation, your sole remedy shall be to terminate this Agreement as set forth herein. Continued use of any software, products or services following any such changes will indicate your acknowledgement and acceptance of such changes and satisfaction with the software, products and/or services as so modified. We may change the terms of this Agreement from time to time, by updating these terms as posted online and/or in the applicable software. Any such changes will become effective when notice is received or when so posted, whichever first occurs. If you object to any such changes, your sole recourse will be to terminate this Agreement. Continued use of the software, products or services following such changes will indicate your acknowledgement of such changes and agreement to be bound by such changes.
10.12. USA Based. The Services are controlled, operated and administered by us from within the United States. We make no representation that this site is available for access or use at other locations outside the U.S. However, any access or use from outside the U.S. is still subject to this Agreement. Access to the Services is expressly prohibited from territories where this site or any portion thereof is illegal. You agree not to access or use any information or materials on the Services in violation of U.S. export laws and regulations, or in violation of any laws or regulations in the country from which you are accessing the Services. Any personal information which we may collect via the Services may be stored and processed in our servers located in the United States or in any other country in which we, or our affiliates, subsidiaries, or agents maintain facilities. You consent to any such transfer of personal information outside your country of residence to any such location.
Hardware and Equipment Terms
This Schedule 1 shall apply if and only if Customer obtains any hardware and/or equipment from Clue, as set forth on any Order Form (“Equipment”). Any references herein to “Services” shall be deemed to mean Services and/or Equipment, if and to the extent applicable. Any such Equipment obtained by Customer from Clue, whether leased or purchased, shall be subject to the additional terms set forth below. Customer shall be responsible for risk of loss of all Equipment, starting from the time of initial delivery.
Purchased Equipment. If and to the extent the parties agree on any executed Order Form that Customer will purchase any Equipment from Clue (“Purchased Equipment”), then Customer shall take title to such Purchased Equipment only after payment in full of all amounts due and owing hereunder to Clue, including without limitation payment in full for all Equipment. Clue maintains ownership of, and a security interest in and to, all Purchased Equipment, until such time as all payments have been made by Customer of all amounts due and owing hereunder.
Leased Equipment. If and to the extent the parties agree on any executed Order Form that Customer will lease any Equipment from Clue (“Leased Equipment”), then Customer shall be responsible for maintaining such Equipment and keeping it secure, in good working order, normal wear and tear excepted, and shall return any and all such Equipment in such condition immediately upon expiration or termination of this Agreement. If Customer fails to so return such Equipment, Customer shall pay to Clue the full retail new cost for any such unreturned or damaged Equipment. Clue maintains ownership of, and a security interest in and to, all Leased Equipment, at all times. Customer shall not, and shall not permit any third party to, modify or make adjustments to the Equipment, or use the Equipment with sensors or other devices not provided by Clue, without Clue’s prior written approval.
Disclaimers. Except for the express limited warranty set forth below, there are no other warranties, representations or conditions of any kind, express or implied, whether arising by law, course of dealing, course of performance, usage of trade or otherwise, with respect to the product supplied hereunder including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. All such warranties are hereby specifically disclaimed and the company shall not be liable in this respect. No statement, conduct or description by the company or any other person on the company’s behalf, in addition to or beyond this limited warranty, shall constitute a warranty. Our maximum and sole liability to you would be to repair or replace Defective Equipment, and for no additional monetary value.
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, NOR FOR LOSS OF PROFITS, NOR FOR ANY DAMAGES ARISING DUE TO YOUR USE OF THE EQUIPMENT, INCLUDING IF AND TO THE EXTENT ANY OF THE FOREGOING ARISES IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE EQUIPMENT, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF WE WERE ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE.
YOU ARE RESPONSIBLE FOR YOUR OWN USE OF THE EQUIPMENT, USING YOUR OWN JUDGMENT AND TRAINING, AND YOU REPRESENT, WARRANT AND COVENANT THAT YOU ARE appropriately TRAINED, qualified, certified, LICENSED & PERMITTED to do so AND THAT YOU HAVE ALL NECESSARY CONSENTS AND APPROVALS NEEDED, INCLUDING WITHOUT LIMITATION FROM ANY END USERS, CUSTOMERS OR CLIENTS. You indemnify us for any BREACH BY you or your agents OF THESE TERMS, FOR ANY CLAIMS BY CUSTOMERS OR CLIENTS OF YOURS, and/or FOR YOUR FAILURE to follow any applicable laws, rules and regulations.
LIMITED EQUIPMENT WARRANTY
1. If and to the extent any Equipment is manufactured by a third party, then the sole and exclusive warranty, if any, on such Equipment, is directly from the manufacturer, and Clue has no responsibility nor liability for any Equipment other than the initial delivery thereof. Any dispute related to any Equipment is solely between Customer and such manufacturer.
2. Only if and to the extent Clue is the manufacturer of the Equipment, then the remainder of this Schedule 1 shall apply.
Company warrants to the original purchaser from Company (the “Original Purchaser” or “you”) of the specific Equipment described herein that for a period of twelve (12) months from the date of purchase from us (the “Warranty Period”) that the Equipment will be free from significant defects in materials and workmanship (the “Limited Warranty”). The Equipment consists only of hardware or equipment expressly purchased via Order Form, only as manufactured by Company, without alteration, modification or combination. The Limited Warranty does not apply to normal wear and tear, nor if the Equipment (i) has been subjected to accident, abuse, improper use, neglect, improper storage or handling, abnormal physical stress, damage from the elements or abnormal environmental conditions, damage or loss caused by or resulting from any acts, accidents or disasters beyond the Company’s control, (ii) has been reconstructed, repaired or altered by any person other than the Company one of its authorized representatives or combined with other equipment or software, or (iii) is otherwise misused or used not in strict conformity with the Instructions for Use or other instructions or documentation provided by or on behalf of Company or its authorized reseller.
Original Purchaser’s Exclusive Remedy for Defective Equipment. The Original Purchaser’s exclusive remedy for any Equipment not conforming to the Limited Warranty (“Defective Equipment”) is set forth below.
(i) The Original Purchaser shall notify the Company in writing, of any alleged claim or defect within thirty (30) days from the date the Original Purchaser discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period).
(ii) The Original Purchaser shall ship any Equipment claimed to be defective to: Clue, at the address provided by Clue in the Order Form or otherwise provided in writing. Shipping shall be at the Original Purchaser’s expense and risk of loss.
(iii) Upon Receipt, the Company will inspect and test the Equipment, and if to its reasonable satisfaction, it determines that that such Equipment is Defective Equipment, the Company will in its sole discretion, and at its expense, either (i) repair or replace such Defective Equipment (or affected portions thereof), or (ii) credit or refund the price of such Defective Equipment less any applicable discounts, rebates or credits.
(iv) If the Company elects to repair or replace the Defective Equipment, it will ship to the Original Purchaser, at the Original Purchaser’s expense and risk of loss, the repaired or replaced Equipment to the address specified in writing by the Original Purchaser.
Clue reserves the right to update these terms from time to time.