PLEASE READ VERY CAREFULLY THESE MASTER TERMS AND CONDITIONS (“AGREEMENT”) BEFORE PURCHASING THE SERVICES (DEFINED BELOW). THE AGREEMENT SHALL BE IN FULL FORCE AND EFFECT AS OF THE DATE (“EFFECTIVE DATE”) YOU PERFORM ANY OF THE FOLLOWING ACTIONS: (A) CLICKING THAT YOU ACCEPT OR AGREE TO THESE TERMS WHEN PRESENTED WITH THE OPTION TO DO SO; (B) PURCHASING THE SERVICES (C) USING THE SERVICES. BY DOING ANY OF THE ABOVE, YOU AGREE THAT (i) YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE CUSTOMER (DEFINED BELOW) WISHING TO USE THE SERVICES AND (ii) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE IF YOU DO NOT ACCEPT THESE MASTER TERMS AND CONDITIONS, PLEASE DO NOT PURCHASE OR USE THE SERVICES.
Subject to this Agreement, Clearlogin, Inc. (“Clearlogin”), incorporated in the State of Delaware, Clearlogin shall make available to you (“Customer”) the Clearlogin software as a service as described in the applicable Clearlogin authorized purchase order (“Purchase Order”) and such other incidental services, resources, technology, functions, upgrades, enhancements, and documentation as required for proper performance and usage thereof or generally made available in connection with the Clearlogin software as a service (collectively, “Services”). Dependencies, if any, related to Clearlogin’s performance or delivery requirements and Customer receipt or use of the Services shall be described by Clearlogin in writing in advance to Customer as part of such purchase order. The Services do not include any professional services or third party technology that is licensed between Customer and a third party licensor under separate terms. Clearlogin may in its sole discretion (i) from time-to-time during the term of this Agreement modify, change, enhance, correct or upgrade the Services (including addition of features and functionality thereto and removal of features and functionality therefrom).
2. FEES AND PAYMENT TERMS.
(a) Fees. Unless otherwise specified in a Purchase Order, all fees payable to Clearlogin are due immediately.
(b) Taxes. Customer shall pay all taxes, tariffs and transportation costs relating to, or incurred under, this Agreement (including any sales, use, excise or value added taxes), exclusive of taxes based on or measured by Clearlogin’s net income, unless Customer is exempt from the payment of such taxes and provides Clearlogin with acceptable evidence of such exemption.
(a) Term. Unless earlier terminated in accordance with the rights set forth in this Agreement, this Agreement shall commence as of the Effective Date, and remain in effect until all Purchase Orders or Reseller Agreement (if applicable) hereunder have expired or terminated. The initial term of each subscription shall be as specified in the applicable Purchase Order or the Reseller Agreement (the “Initial Term”). Except as otherwise specified in an Purchase Order or the Reseller Agreement, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other Party written notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Clearlogin provides written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
(b) Termination for Convenience. Clearlogin may terminate this Agreement (or any Purchase Order), in whole or in part, at any time for any reason or no reason at all by giving thirty (30) days written notice of termination to Customer, unless otherwise provided herein. Termination will be effective immediately following the expiration of such notice to terminate, unless the Services relating thereto have not commenced in which case the termination shall be effective as soon as practicable (not to exceed thirty (30) days). Should Clearlogin terminate under this Section 3(b), Customer will pay Clearlogin for all fees owed for the terminated Services received by Customer on or before the termination date, and Clearlogin shall refund to Customer all amounts pre-paid under this Agreement, for any Services not received in accordance with this Agreement.
(c) Termination for Default. Either party has the right to terminate this Agreement (or any Purchase Order), in whole or in part, if the other party breaches or is in default of any material obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) business days after receipt of written notice from the non-defaulting party or within such additional cure period as the non-defaulting party may authorize. If Clearlogin terminates due to a default by Customer, Clearlogin may terminate without liability to Customer, and Customer will pay any unpaid fees covering the remainder of the term of all Purchase Order s. In no event will termination relieve Customer of its obligation to pay any fees payable to Clearlogin for the period prior to the effective date of termination.
(d) Termination for Bankruptcy. Customer shall provide Clearlogin advance written notice of any material adverse change to Customer’s financial condition, credit rating, or viability. If Customer becomes insolvent, takes any step leading to its cessation as a going concern, fails to pay its debts as they become due, or ceases business operations, then Clearlogin may immediately terminate this Agreement. All rights and licenses granted by Customer are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (11 U.S.C. §101 et. seq.) or other similar laws in other countries (collectively, the “Bankruptcy Code”), or any replacement provision thereof, licenses to rights to “intellectual property” as defined in such Bankruptcy Code. Clearlogin, as licensees of such rights under this Agreement, will retain and may fully exercise all of its rights and elections under the Bankruptcy Code subject to any obligations of Clearlogin under the Bankruptcy Code. In the event of the commencement of bankruptcy proceedings by or against Customer (or its affiliates), Clearlogin will be entitled to retain its rights of use and licenses under this Agreement subject to Customer’s (and its affiliates’) rights under the Bankruptcy Code.
(e) Effects of Termination; Survival. Upon termination of this Agreement, all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement. Those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue, and payment. Customer shall not be relieved of its obligation to pay any monies due or to become due as of or after the date of expiration or termination of this Agreement.
4. OWNERSHIP OF CLEARLOGIN IP.
Except as set forth in Section 5 below, the parties agree that Clearlogin shall exclusively own and retain all Intellectual Property Rights in and to “Clearlogin IP”, defined as the i) Services; ii) all works of authorship, programs, code, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, and concepts, any of which existed prior to the Effective Date of this Agreement, whether created by or for Clearlogin (“Pre-Existing Materials”); and iii) Clearlogin’s business, templates, documents, materials, technology, trademarks, software, source code, website(s), modifications, updates and enhancement. The term “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.
5. RIGHTS GRANTED AND RESTRICTIONS.
(a) Use. Clearlogin grants Customer a non-exclusive, non-transferable (except as set forth herein), limited right to access and use the Services ordered in an Purchase Order for your internal business operations subject to the terms of this Agreement and each applicable Purchase Order. Customer may allow its employees, contractors and end users, as applicable and as authorized by Customer in accordance with this Agreement and each applicable Purchase Order (collectively, “Users”) to use the Services for this purpose. Customer is responsible for the Users’ compliance with this Agreement and all applicable Purchase Orders. Customer agrees to take all reasonable steps to prevent unauthorized use, access, copying or disclosure of the Service and Clearlogin IP; and (iii) ensure that all such all data, documents and comments he/she may post or submit in connection with the Services complies with all applicable laws, regulations and authority; that the content is not defamatory or indecent; and that the content will not infringe the intellectual property or data privacy rights of any third party. Customer agrees to accept all patches, bug fixes, updates, maintenance and services packs (collectively, “Patches”) necessary for the proper function and security of the Services. Clearlogin is not responsible for performance or security issues encountered with the Services that result from the failure to accept the application of Patches.
(b) Restrictions on Use. Except as otherwise expressly provided in this Agreement, no other license or right shall be deemed granted or implied with respect to the Services or Clearlogin IP. Except as otherwise expressly allowed in this Agreement, Customer shall not (i) make any Services or Clearlogin IP available to, or use any of the Services or Clearlogin IP for the benefit of, anyone other than Customer and its Users (unless such access is expressly permitted in a Purchase Order); (ii) sell any of the Services or Clearlogin IP in whole or in part or in any form or manner or by any means whatsoever (unless Customer is expressly permitted to sell the Services to an end user customer as set forth in the Clearlogin Reseller Agreement); (iii) copy, reproduce, repackage, retransmit, transfer, modify, adapt, store for subsequent use for any purpose, resell, license, sublicense, distribute, rent or lease any of the Services or Clearlogin IP in whole or in part or in any form or manner or by any means whatsoever; (iv) use the Service or Clearlogin IP in an illegal or inappropriate manner (as determined by Clearlogin in its sole discretion); (v) attempt to gain unauthorized access to any Services or Clearlogin IP in whole or in part; (vi) permit access to or use of any Services or Clearlogin IP in in a way that circumvents a contractual usage limit, (vii) reverse engineer, decompile, disassemble or otherwise attempt to derive the human readable, source code version of any of Clearlogin’s Intellectual Property; (viii) remove any proprietary notices of Clearlogin or third parties found on or in the Services and Clearlogin IP; (ix) access any Services or use any Clearlogin IP to develop or assist any third party with the development of any product or service that is generally competitive with the Services; or (x) post comments on blogs, in chat rooms, or anywhere online which Clearlogin deems in its sole discretion to be inappropriate (in which case you hereby authorize Clearlogin to remove the comment on your behalf or a User’s behalf). Nothing herein will be construed as granting Customer, by implication, estoppel or otherwise, any license or other right to any Intellectual Property Rights of Clearlogin or its licensors except for the rights and license expressly granted herein. Clearlogin and its licensors retain all rights not so granted.
(c) Customer Materials. Customer exclusively owns and retains all right, title, and interest in and to i) its business, technology, trademarks, and websites and all other Intellectual Property Rights in materials that are developed and owned by Customer prior to the Effective Date of this Agreement; and ii) all software programs, including source code for such programs, text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content or material that reside in, or run on or through the Services (collectively, “Customer Materials”). Customer exclusively owns and retains all Intellectual Property Rights, title, and interest in and to each of the Customer Materials. Customer grants to Clearlogin a non-exclusive, fully paid license to use, process, and transmit the Customer Materials for purposes of performing the Services.
(d) Open Source. Certain components of the Services may be subject to open source or free software licenses (Open Source Software). Some of the Open Source Software is owned by third parties. Depending on the terms of the applicable open source licensing agreement, the Open Source Software may not subject to the terms and conditions of Section 3 or 4. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Clearlogin or grants Clearlogin rights that supersede the terms and conditions of any applicable end user license for the Open Source Software.
6. USER ACCESS AND PASSWORDS..
Customer is responsible for (i) identifying users with approved access to Clearlogin; (ii) providing Clearlogin with sufficient information to identify and authenticate its Users; (iii) controlling against unauthorized access by Users and for maintaining the confidentiality of usernames, passwords and account information; and (iv) all activities that occur under Customer’s or User’ access to the Services. Customer must promptly notify Clearlogin in the event it becomes aware of misuse of any User password, unauthorized access or any other event or action that may reasonably impair the Services. CLEARLOGIN IS NOT RESPONSIBLE FOR ANY ERRORS OR INACCURACIES THAT OCCUR IN THE USER AUTHENTICATION PROCESS ARISING OUT OF OR RELATING THE INFORMATION PROVIDED BY CUSTOMER FOR PURPOSES OF IDENTIFYING AND AUTHENTICATING USERS.
(a) As used herein, the term “Confidential Information” shall mean all non-public information that may disclosed either before or after the execution of this Agreement, whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information shall include Clearlogin IP, Customer Materials and other information deemed proprietary or confidential by the party disclosing the Confidential Information (the “Disclosing Party”), and all record-bearing media containing or disclosing such information.
(b) A party receiving Confidential Information (“Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of the Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the other party or for any use other than necessary for the performance of that party’s obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information. Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information.
(c) The term Confidential Information does not include information which: (i) has been or becomes published and publicly available or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the Receiving Party which can be verified by independent evidence; (iii) subsequent to disclosure hereunder, is lawfully received from a third-party having rights therein without restriction of third-party’s or the Receiving Party’s rights to disseminate the information and without notice of any restriction against its further disclosure; (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence; or (v) is disclosed pursuant to a requirement of a governmental entity or the disclosure of which is required by law.
(d) If Receiving Party is requested by a court, governmental entity or other third-party to disclose any Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action. Receiving Party will also cooperate in Disclosing Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information and shall only disclose the part of the Confidential Information as is required by law to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment therefor.
(e) Confidential Information shall not, without the prior written consent of the Disclosing Party, be disclosed to any person or entity other than employees or agents of Receiving Party who need to know the Confidential Information and in those instances only to the extent justifiable by that need. The Receiving Party shall ensure that all such entities and personnel comply with the terms of this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information.
(f) Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information, including without limitation, by marking (where appropriate) the Confidential Information with the words “CONFIDENTIAL,” limiting access to the Confidential Information, maintaining the Confidential Information in a secure location, assuring and confirming the return of copies of the Confidential Information from any recipients of the Confidential Information upon completion of such recipients’ activities relating to the evaluation or use of the Confidential Information. The Receiving Party shall notify the Disclosing Party immediately, and cooperate with the Disclosing Party, upon Receiving Party’s discovery of any loss or compromise of the Confidential Information.
(g) Receiving Party acknowledges that the Confidential Information is the exclusive property of and belongs solely to the Disclosing Party and shall not claim otherwise for any purpose.
(h) Receiving Party agrees to return to the Disclosing Party, destroy and/or permanently delete, at Disclosing Party’s discretion, and certify in writing its destruction, permanent deletion and/or return, all written, tangible or otherwise accessible material in any form (including electronic media such as computer diskettes, CD-ROM, electronic copies or any material resident in the hard or external drive of any computer) containing or reflecting any Confidential Information (including all copies, summaries, excerpts, extracts or other reproductions) promptly following the Disclosing Party’s request.
(i) In addition to any other rights and remedies available to Disclosing Party hereunder or at law, Receiving Party acknowledges and agrees that due to the nature of the Confidential Information its confidentiality obligations to Disclosing Party hereunder are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to Disclosing Party for which there may be no adequate remedy in damages. Notwithstanding anything to the contrary in this Agreement, Disclosing Party will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond or other security, even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.
8. REPRESENTATIONS, WARRANTIES & DISCLAIMERS.
(a) Warranties. (i) Each party warrants that at all times that it has the right and full power and authority to enter into this Agreement and each Purchase Order, and it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation; (ii) Each party represents that it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable; (iii) Clearlogin represents and warrants it owns the Services, that Services will operate in substantial conformity with the then current version of the applicable documentation provided by Services, and that it will provide the Services in a manner consistent with general industry standards.
(b) Disclaimers. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CLEARLOGIN MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER, USER OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES OR THE CLEARLOGIN IP INCLUDING WITHOUT LIMITATION THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER MATERIAL OR ANY OTHER HARDWARE, SOFTWARE, SYSTEMS SERVICES OR DATA NOT PROVIDED BY CLEARLOGIN. CLEARLOGIN SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE THE SERVICES AVAILABLE 24 HOURS A DAY SEVEN DAYS A WEEK. CLEARLOGIN DOES NOT GUARANTEE THAT THE SERVICES WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (i) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (ii) CAUSED BY ANY FAILURES OF CUSTOMER’S EQUIPMENT, SYSTEMS OR SERVERS, (iii) FOR SCHEDULED MAINTENANCE, OR (iv) FOR ANY EVENTS OF FORCE MAJEURE, AS DESCRIBED IN SECTION 11(h).
(c) Remedies. For any breach of the warranty in Section 8(a)(iii),Customer’s exclusive remedy and Clearlogin’s entire liability shall be the correction of the deficient services that cause the breach of warranty. If the failure is not so corrected, then Customer may: (a) extend the time for Clearlogin to correct such failure (if correction is commercially practical); (b) receive an appropriate, agreed-upon reduction in, or refund of, the fees; or (c) terminate the Agreement reduction in, or refund of, the fees; or (d) terminate the Agreement.
9. LIMITATION OF LIABILITY.
CLEARLOGIN SHALL NOT BE LIABLE TO CUSTOMER OR USERS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, TORT OR OTHER ACTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE CLEARLOGIN ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY AND REGARDLESS OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED, EXCEED THE AGGREGATE FEES AND CHARGES PAID BY CUSTOMER TO CLEARLOGIN UNDER THE AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM ACCRUED. CUSTOMER AGREES THAT IT WILL UNDER NO CIRCUMSTANCES BRING AN ACTION OR SUIT, FILE ANY CLAIM, OR INITIATE ANY PROCEEDING, AGAINST CLEARLOGIN FOR AN AMOUNT GREATER THAN SUCH SUM.
(a) “Losses” means losses, liabilities, damages, fines, penalties, settlements, judgments, costs and expenses, including reasonable attorneys’ fees and expert fees, and interest (including taxes) arising out of a third party claim.
(b) Indemnity by Clearlogin. Clearlogin will indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, successors and assigns (the “Customer Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by a Customer Indemnified Party or to which a Customer Indemnified Party becomes subject, resulting from, arising out of, or relating to: (i) any material breach by Clearlogin of this Agreement and/or any of its obligations and representations hereunder, or (ii) injury or death, or damage to any property caused by or arising from the negligent acts or omissions of Clearlogin in connection with performance of the Agreement.
(c) Indemnity by Customer. Customer will indemnify, defend and hold harmless Clearlogin and its officers, directors, employees, successors and assigns (the “Clearlogin Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by an Clearlogin Indemnified Party or to which an Clearlogin Indemnified Party becomes subject, resulting from, arising out of, or relating to: (i) any material breach by Customer of this Agreement and/or any of its obligations and representations hereunder, including, without limitation, confidentiality and Section 5, or (ii) Customer’s failure to pay and discharge any Taxes (including interest and penalties) for which Customer is responsible pursuant to the provisions of this Agreement.
(d) Remedies for Infringement. Should any Clearlogin IP become or, in Clearlogin’s opinion, be likely to become the subject of any infringement claim, Clearlogin shall have the right, at its sole discretion and at its expense, to either procure for Customer the right to continue using or receiving the Clearlogin IP, replace or modify the Clearlogin IP so it becomes non-infringing, or remove the questionable Clearlogin IP. This Section states Clearlogin’s entire liability, and Customer’s sole and exclusive remedy for Intellectual Property Rights claims relating to or arising out of any Clearlogin IP, other than the indemnification obligations set forth herein should Clearlogin forego this right. Clearlogin shall have no obligation to Customer for indemnification with regard to any claim of infringement to the extent that the Clearlogin IP infringement claim or allegation is based on: (1) a modification made by an entity other than Clearlogin or its designee; (2) a violation by Customer of this Agreement; or (3) the inclusion of any Customer Materials or third party materials in any Clearlogin IP.
(e) Indemnification Procedures. If any third-party claim is commenced against a person or entity entitled to indemnification under this section (the “Indemnified Party”), notice thereof shall be given to the party that is obligated to provide indemnification (the “Indemnifying Party”) as promptly as practicable. If, after such notice, the Indemnifying Party will acknowledge that this Agreement applies with respect to such claim, then the Indemnifying Party will be entitled, if it so elects, in a notice promptly delivered to the Indemnified Party, but in no event less than ten (10) business days prior to the date on which a response to such claim is due, to immediately take control of the defense and investigation of such claim, at the Indemnifying Party’s sole cost and expense. The Indemnified Party will cooperate, at the cost of the Indemnifying Party, in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves a remedy other than the payment of money by the Indemnifying Party will be entered into without the consent of the Indemnified Party. After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that claim. If the Indemnifying Party does not assume full control over the defense of a claim subject to such defense as provided in this Section, the Indemnified Party will have the right to defend the claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party.
(a) Governing Law and Venue. This Agreement will be governed and interpreted in accordance with the laws of the State of New Jersey without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in Union County, New Jersey and the parties hereby irrevocably consent to such jurisdiction and venue.
(b) Dispute Resolution. In the event of any dispute or claim arising out of or relating to this Agreement, the parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation under the CPR Mediation Procedure currently in effect. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Distinguished Neutrals. If the parties are unable to resolve the dispute by confidential mediation, the dispute shall then be submitted to binding arbitration in accordance with the Rules for Non-Administered Arbitration of the International Institute for Conflict Prevention and Resolution (the “IICPR”) and judgment upon the award rendered may be entered in any court having jurisdiction thereof. Unless otherwise agreed all mediation and arbitration will take place in Union County, New Jersey.
(c) Notices. Unless otherwise stated, all notices, consents or approvals hereunder will be in writing and will be deemed to have been given and received when (a) delivered personally or by courier; (b) received by certified or registered mail, return receipt requested, postage prepaid; or (c) sent by email or confirmed facsimile transmission; in Clearlogin’s case, at Clearlogin, Inc. 241 North Avenue West, Suite 203, Westfield, NJ 07090 and in Customer’s case, at the email address provided by Customer upon registration for the Services or at any address provided by Customer upon registration.
(d) Entire Agreement; Severability; Modification. This Agreement, including any Purchase Orders is the entire agreement of the parties, and supersedes all prior agreements and communications between the parties with respect to the subject matter of this Agreement, and represents the complete integration of the parties’ agreement. In interpreting and construing this Agreement, the fact that one or the other of Clearlogin or Customer may have drafted this Agreement or any provision hereof shall not be given any weight or relevance, both parties having had an opportunity to review and negotiate the terms hereof. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by an authorized representative of the party against whom the modification is asserted.
(e) No Waiver. The failure of a party in any one or more instances to exercise any right or privilege arising out of this Agreement shall not preclude it from requiring that the other party fully perform its obligations or preclude it from exercising such a right or privilege at any time.
(f) Independent Contractors. Clearlogin and the Customer shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties.
(g) Assignment. This Agreement shall not be assigned or transferred in whole or in part by either party without the prior written consent of the other, provided that either party may assign this Agreement without prior written consent in connection with a public offering of its securities or in a sale of all or substantially all of its assets to which this Agreement relates or by way of merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this Section shall be void. Nothing in this Agreement shall be construed as permitting a trustee or purchaser in bankruptcy to assume this Agreement without the written consent of the other party. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
(h) Force Majeure. Except for the obligation to pay sums due hereunder, neither party shall be responsible for delays or failures in performance of this Agreement resulting from acts beyond its reasonable control. Termination under this Section will not relieve Customer of its obligation to pay for Services rendered prior to the date the event of force majeure arose. Clearlogin will make commercially reasonable efforts to re-establish Services as soon as possible in the event of a Force Majeure event.
(i) Marketing. Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other party, which consent will not be withheld unreasonably; provided, however, that Clearlogin shall have the right to use Customer’s name and logos in general marketing materials related to the Services.
(j) Competition. Customer acknowledges and agrees that Clearlogin may, without limitation, accept agreements from, grant licenses to other persons, firms, corporations, or other entities, including entities that compete with Customer, for Services and products, on any terms Clearlogin deems appropriate.
(k) Export Control. Each party to this Agreement agrees to comply with all relevant export laws and regulations of the United States and other countries to assure that no Confidential Information or any portion thereof is exported, directly or indirectly, in violation of such laws. Services, technology, and technical data received by Customer from Clearlogin shall be deemed and treated by Clearlogin as being classified under Export Control Classification Number EAR99 on the Commerce Control List of the U.S. Export Administration Regulations for purposes of export from the United States, unless Clearlogin clearly marks such technical data to the contrary and supplies alternative export control information. Customer agrees to indemnify, defend and hold harmless Clearlogin Indemnified Parties against any and all liability under U.S. export control laws, regulations and requirements in connection with export or re-export of the technical data received from Clearlogin if the technical data from Clearlogin is not clearly marked with alternative export control information.
(l) Counterparts This Agreement may be executed in several counterparts, each of which will be deemed to be an original, all of which, when taken together, shall constitute one and the same instrument.
(m) Rule of Interpretation. (i) The term “including” (in all of its forms) means “including, without limitations” unless expressly stated otherwise; (ii) Any headings set forth in this Agreement are solely for convenience or reference and do not constitute a part of this Agreement, nor do they affect the meaning, construction or effect of this Agreement; (iii) All references to a number of days mean calendar days, unless expressly stated otherwise; (iv) The schedules, exhibits, or Purchase Orders subject to this Agreement shall be deemed to be a part of this Agreement and are incorporated by reference herein; (v) No documents exchanged or course of dealings by the parties shall be deemed to modify or amend any of the terms of the Agreement unless in writing and signed by an authorized representative of both parties; (vi) In the event of an inconsistency, ambiguity, contradiction or conflict between the terms of this Agreement, the Reseller Agreement its schedules, exhibits or Purchase Order and any amendments to any of the foregoing, such documents shall be interpreted in the following order of precedence: (1) the terms of any amendment to this Agreement shall take precedence, (2) followed by the terms of this Agreement, unless a Purchase Order or the Reseller Agreement expressly states that it overrides a specific provision of this Agreement, with reference to the provision of this Agreement that is to be overridden; (iii) followed by the terms of any schedules and then exhibits to this Agreement.
11. SERVICE LEVEL TERMS.
These Service Level Terms set out responsibilities of Clearlogin with respect to the maintenance and support services provided by Clearlogin for the Services provided under this Master Services Agreement.