Terms of service
PLEASE READ THIS AGREEMENT BEFORE USING CLARAMETRICS'S SERVICES. BY ACCESSING OR USING CLARAMETRICS SOFTWARE OR SERVICES OFFERING, YOU (THE “CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE OR SERVICES.
By executing the Clarametrics Services Agreement (the “Order Form”) with Clarametrics INC (“Clarametrics”), the Customer, as named in the Order Form, acknowledges and agrees that these Clarametrics Services Agreement Terms and Conditions (the “Terms and Conditions”), along with any Clarametrics License and Services Agreement Order Form executed by the parties and incorporating these Terms and Conditions by reference and any documents referenced herein via URL links or attached hereto as Attachments (collectively, the “Agreement”), represent the entire agreement between the parties with respect to the subject matter herein. All capitalized terms used in these Terms and Conditions but not otherwise defined herein shall have the meanings ascribed to them in the Order Form. To the extent there is any conflict of terms between these Terms and Conditions and the Order Form, the terms of the Order Form shall govern.
1. Order Form; Change Orders.
The Services (as defined below) to be provided to Customer by Clarametrics, the related compensation to be paid by Customer to Clarametrics, and such other terms and conditions as Clarametrics and Customer may agree, are set forth on the Order Form. Any changes to the Order Form may be requested by Customer pursuant to a written change order, which Clarametrics may accept or decline in its reasonable discretion (a “Change Order”). A Change Order shall not become effective until it is agreed to by both parties in writing.
2. Services and Operation.
(a) Services. Subject to and conditioned upon Customer’s compliance with the terms and conditions of this Agreement, Clarametrics shall use commercially reasonable effects to provide to Customer the services described in this Agreement (the “Services”) in accordance with the terms and conditions hereof.
(b) Operation of Services. Customer acknowledges that the operation of the Services depends on the successful interface between the Clarametrics software (the “Software”) and Customer’s digital data and the technical ecosystem in which it resides (collectively, “Customer Systems”). As such, Customer must provide to Clarametrics all information and materials reasonably requested by Clarametrics in order to allow for such interface. To the extent any such information or materials include application programming interfaces (APIs) or other code (collectively, “Interface Code”), Customer hereby grants to Clarametrics a non-exclusive, non-transferable license to use any and all Interface Code for the purposes of performing the Services. Customer shall be responsible for ensuring that the Interface Code is sufficient for the complete interface between the Software and Customer Systems; any lack of functionality that results from insufficiencies in the Interface Code shall be not be the responsibility of Clarametrics.
(c) Services Levels. Clarametrics shall notify Customer in advance of any scheduled downtimes of the Software during which the Services may not be available. In the event of the occurrence of any unscheduled downtime of the Software exceeding twelve (12) continuous and uninterrupted hours that negatively impacts the availability of the Services, Clarametrics shall notify Customer of such unscheduled downtime and take commercially reasonable steps to resume the provision of Services.
(d) Data. Customer acknowledges that, via the Interface Code, Clarametrics may have access to certain digital data and related data (the “Data”) in the course of performing the Services. However, the Services do not include data back-up or business continuity services, and do not replace the need for Customer to main regular data back-ups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF DATA. Furthermore, Customer acknowledges that the Services are not designed with security and access management for the processing of sensitive data, including, but not limited to, personally identifiable information. Customer has and will retain sole responsibility for all Data, including its content and use.
(e) Reports. Clarametrics may provide to Customer certain service reports reflecting certain categories of information, including, but not limited to, website performance and sales activities (the “Reports”). To the extent Reports are provided under this Agreement, each such Report shall be considered part of the Services.
(f) Restrictions. Customer shall not, directly or indirectly attempt to access the Software in any manner. A breach of this Section 2(f) shall be deemed a material breach of this Agreement, and Clarametrics shall be permitted to immediately terminate this Agreement.
3. Ownership and Reservation of Rights.
(a) Clarametrics Intellectual Property. Notwithstanding anything to the contrary herein, as between the parties, Clarametrics is the sole and exclusive owner of all rights, title and interest in and to all copyright, patent, trademark, service mark, moral rights and any other intellectual property and/or proprietary rights, whether or not registrable, in the Services, any component thereof and any and all materials related thereto and all generalized knowledge, skill, know-how and expertise relating to such materials (the “Clarametrics Intellectual Property”). Nothing herein shall be construed as granting to Customer any ownership interest in any of the Clarametrics Intellectual Property. All rights in the Services not expressly granted hereunder are hereby retained by Clarametrics.
(b) Feedback. Notwithstanding anything to the contrary herein, Clarametrics shall solely and exclusively own, and shall have the right to use in any manner, all oral and written comments and any other reports, materials, information, ideas, concepts, and know-how provided by Customer, or any end user, to Clarametrics, including without limitation in connection with any errors, defects, or deficiencies in the Services and any suggestions for corrections or improvements thereto, except to the extent any of Customer’s Confidential Information (as defined below) is included therein (all the foregoing, notwithstanding any contrary definition under applicable law, collectively, “Feedback”). To the extent that by operation of law or otherwise, any right, title, or interest in or to the Feedback vests in Customer, Customer hereby irrevocably and unconditionally assigns and agrees to assign to Clarametrics the Feedback and forever waives and agrees never to assert any and all such right, title, and interest in such Feedback. Customer shall execute all documents and take all other actions requested by Clarametrics in connection with the foregoing assignments and waivers. At Clarametrics’s request, Customer will assist Clarametrics in obtaining protection for any intellectual property right(s) associated with the Feedback. Under no circumstances will Clarametrics become liable for any payment to Customer for any Feedback or other information that Customer provides hereunder, whether concerning the Services or otherwise, no matter how such Feedback or other information are used or exploited by Clarametrics.
(c) Customer Systems and Data. Notwithstanding anything else herein to the contrary, as between the parties, Customer is the sole and exclusive owner of the Customer Systems and Data. Clarametrics shall have no rights in or to the Customer Systems and Data, nor any responsibilities as to the Customer Systems and Data, except as explicitly set forth in this Agreement. For clarity, Data shall not include any data generated or collected by Clarametrics regarding the operations of the Services (the “Usage Information”), which shall be considered Clarametrics Intellectual Property for purposes of this Agreement. 4. Responsibilities of the Parties. (a) Compliance with Laws. Each party shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of its activities hereunder. Customer represents and warrants that it is permitted under applicable law and otherwise to use the Services in conjunction with all aspects of its technology environment and has the valid and enforceable right to provide all Data for purposes of the Services hereunder. (b) Specifications. Customer acknowledges and agrees that the Services rely on the capabilities of Customer Systems, including without limitation its internet connectivity and networking capabilities, in order to operate, and will only function so long as, and solely to the extent that Customer Systems meet the minimum system specification requirements provided to Customer by Clarametrics (the “Specifications”). Customer acknowledges and agrees that, as between the parties, it is Customer’s responsibility to ensure that the Customer Systems meet the Specifications, and the environment in which Customer is using the Services is otherwise capable of and conducive to such use. (c) Updates. Clarametrics may, but is not obligated to, provide updates, fixes or any other changes to the Software and Services based on feedback from Customer or otherwise from time to time.
(d) Subcontractors. Clarametrics may use a third party subcontractor to perform any of its obligations under this Agreement.
5. Term and Termination.
(a) Term of Agreement. The term of this Agreement shall be as set forth in the Order Form (the “Term”).
(b) Termination. Without limiting Clarametrics’s right to terminate this Agreement in accordance with Section 2(f), and without limiting any other rights of termination or cancellation provided in the Order Form, either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) calendar days of its receipt of notice of such breach. With regard to non-payment, Clarametrics shall have the right to terminate this Agreement, or suspend Services hereunder, without further notice. Additionally, Clarametrics shall have the right to terminate this Agreement immediately without notice in the event Customer’s use of the Services is not in accordance with all applicable laws, rules and regulations. In the event Clarametrics terminates this Agreement for Customer’s breach, Customer shall not be entitled to a refund of any amounts paid to Clarametrics as of the date of termination.
(c) Survival. The provisions of Sections 3; 5(c); 6 (solely as to Fees accrued as of termination); and 7 through 11 shall survive any termination or expiration of this Agreement.
(a) Payment. Customer shall pay to Clarametrics the fees set forth in and in accordance with the Order Form (the “Fees”). Prices shall be as set forth on the Order Form and are non-creditable, non-recoupable and non-refundable except as expressly provided otherwise herein or therein. Unless otherwise set forth on the Order Form, payment of the Fees shall be due on a monthly basis in accordance with the Order Form. Customer’s right to dispute any amounts does not relieve Customer of its obligation to pay any undisputed amount by the applicable due date. A late payment charge of the lesser of 1.5% per month or the highest lawful rate may be applied to any outstanding balances until paid, and Customer shall be responsible for paying all such late charges. All payments under this Agreement shall be made in United States dollars and in accordance with the rules governing your use of your payment card.
(b) Taxes. Customer shall pay Clarametrics for all applicable taxes relating to Clarametrics’s provision of the Services, other than taxes based on Clarametrics’s income. Such taxes will be incorporated in the payment terms set forth on the Order Form.
(a) Confidential Information. For the purposes of this Agreement and subject to the exclusions listed below, “Confidential Information” shall mean any and all information, documents, manuals, files or other materials provided, directly or indirectly, in any form whatsoever, by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or otherwise belonging to the Disclosing Party (e.g., Feedback, Data) in connection with this Agreement which is either marked “confidential” or can reasonably be assumed to be confidential based on the nature of the material and the circumstances of its disclosure. Notwithstanding anything herein to the contrary, “Confidential Information” shall not include any information, documents, manuals, files or other materials that the Receiving Party can show through reasonable evidence (i) are or become publicly available without breach of this Agreement by the Receiving Party; (ii) are rightfully received by the Receiving Party without obligation of confidentiality from a source which is not prohibited from disclosing such information; (iii) are independently developed by the Receiving Party without access to or use of the disclosing party’s Confidential Information; or (iv) were in the Receiving Party’s possession or known to the Receiving Party prior to its receipt of such information from the Disclosing Party.
(b) Restrictions on Disclosure. The Receiving Party shall receive, maintain and hold the Disclosing Party’s Confidential Information in strict confidence and will use at least the same level of care in safeguarding such Confidential Information that it uses with its own confidential information of a similar nature, but in no event less than reasonable care under the circumstances. Customer agrees that Clarametrics may disclose Customer’s Confidential Information to its employees and contractors with a need to know in connection with the provision of the Services under this Agreement. Clarametrics will instruct all such employees and contractors in advance that they must comply with the restrictions set forth herein. The Receiving Party will immediately notify the Disclosing Party of any disclosure of the Disclosing Party’s Confidential Information in violation of this Agreement. If the Receiving Party receives a demand from a legal or regulatory authority of competent jurisdiction (or otherwise pursuant to a requirement of law) requiring the disclosure of the Disclosing Party’s Confidential Information, the Receiving Party shall provide notice to the Disclosing Party of such demand or requirement prior to disclosing the Confidential Information, and shall, upon reasonable request and at the expense of the Disclosing Party, cooperate in any reasonable efforts by the Disclosing Party to seek arrangements to protect the confidentiality and proprietary nature of such Confidential Information.
(c) Injunctive Relief. The parties agree that a breach of any of the obligations set forth in this Section 7 would irreparably harm and damage the other party. As such, the Disclosing Party shall be entitled to seek and obtain immediate injunctive relief to stop any disclosure or threatened disclosure of the Disclosing Party’s Confidential Information, without any limitation to any other remedies available to the Disclosing Party.
(d) Survival of Confidentiality Obligations. Upon termination of this Agreement, each party shall return to the other party any Confidential Information of such other party that it has in tangible form in its possession. The obligations set forth in this Section 7 shall survive termination of this Agreement and remain in effect so long as the Receiving Party possesses or has access to the Disclosing Party’s Confidential Information, whether in tangible or intangible form.
8. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLARAMETRICS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELIANCE ON The SERVICES, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WARRANTIES OF CLARAMETRICS SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CLARAMETRICS HEREBY DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, DATA INACCURACY, OR NONCONFORMITY IN THE SERVICES OR ANY OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (I) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; AND (III) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF CLARAMETRICS (WHETHER ACTIVE, PASSIVE OR IMPUTED). CLARAMETRICS DOES NOT WARRANT THAT OPERATION OF OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER WILL BEAR ALL RISK ASSOCIATED WITH ANY USE OF A NETWORK OR DATA TRANSMISSION, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BY OR ON BEHALF OF CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO ANY MALWARE, VIRUS OR DESTRUCTIVE CODE RESULTING THEREFROM, AND CLARAMETRICS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY IN CONNECTION WITH SUCH USE.
9. Limitation of Liability.
IN NO EVENT SHALL CLARAMETRICS BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, RELIANCE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SERVICES OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, LOST, DESTROYED OR CORRUPTED DATA, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT CLARAMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL CLARAMETRICS’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUIVALENT TO THE FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(a) Each party shall indemnify, defend, and hold harmless the other party and its officers, employees, agents, affiliates, successors and assigns from and against all claims, actions, demands, and suits by third parties, and all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys’ fees) arising from or in connection with (i) such party’s material breach of any of its representations or warranties under this Agreement; and (ii) such party’s gross negligence, willful misconduct, or violation of the law.
(b) By Customer. Customer shall indemnify, defend, and hold harmless Clarametrics and its officers, employees, agents, affiliates, successors and assigns from and against all claims, actions, demands, and suits by third parties, and all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys’ fees) arising from or in connection with any allegation relating to Customer’s use of the Services (i) for any purpose other than those expressly permitted under this Agreement, or (ii) in combination with other software or hardware not licensed by Clarametrics to Customer.
(c) By Clarametrics. Clarametrics shall defend, at its expense, any claim, lawsuit or related action brought against Customer alleging that the Services infringe a United States patent or copyright, and shall pay all costs and damages finally awarded. In the event of any such claim, Customer, upon Clarametrics’ request, shall immediately cease using the Services, and Clarametrics will use commercially reasonable efforts to (i) procure for Customer the right to continue to use the Services as set forth in this Agreement, (ii) provide a reasonable workaround solution, or (iii) replace or modify the Services to make their use under this Agreement non-infringing, or, if alternatives (i)-(iii) are not practicable, to refund a prorated portion of the fees paid by Customer under this Agreement and terminate this Agreement upon written notice to Customer. The remedy set forth in this Section 10(c) shall be the sole remedy for Customer in the event of a claim, lawsuit or related action covered by this Section 10(c).
(d) Indemnity Process. The rights of indemnity under this Section 10 are conditioned upon the indemnified party’s provision to the indemnifying party of (i) prompt written notice of the applicable claim, (ii) any information in the possession of indemnified party related to such claim, (iii) reasonable assistance by the indemnified party at the indemnified party’s cost, and (iv) sole authority to settle or defend such claim, provided any such settlement does not admit fault on the part of the indemnified party.
(e) Sole Remedy. THIS SECTION 10 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY DAMAGED COVERED UNDER SECTION 10.
11. Other Provisions.
(a) No Assignment. Customer shall not assign, delegate, or otherwise transfer in any way either this Agreement or any of Customer’s rights, duties or obligations hereunder without the prior written consent of Clarametrics. Clarametrics may assign this Agreement in connection with the sale of any portion of its business related to the subject matter of this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted assignees, transferee and successors of each of the parties. Except as expressly authorized hereunder, any assignment, delegation, or other transfer shall be void and unenforceable.
(b) Force Majeure. Clarametrics shall not be liable for any delay or failure of performance of any portion of this Agreement arising out of or resulting from any cause beyond its control, including, without limitation, acts of God, acts or omissions or civil or military authorities; government regulations, embargoes, epidemics, war, terrorist acts, riots, civil commotion or uprising, nuclear accidents, or power outages (each, a “Force Majeure Condition”). If such Force Majeure Condition results in a delay or failure to perform that continues for more than thirty (30) consecutive days, Customer may, without penalty, elect to (i) terminate this Agreement; or (ii) suspend such affected Services until the Force Majeure Condition is resolved.
(c) Independent Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency or employment relationship between Clarametrics and Customer.
(d) Waiver. The waiver or failure of either party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
(e) Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement shall be unimpaired, and the invalid term or provisions shall be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision.
(f) Notice. Any notice or other communications required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given three (3) days after mailing by first class certified mail, postage prepaid, to the following address:
307 West Franklin St.
Chapel Hill, NC 27516
To the Customer’s contact address set forth on the Order Form.
(g) Integration. This Agreement (consisting of the Order Form and these Terms and Conditions) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof.
(h) Amendments. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by both parties.
(i) Applicable Law. This Agreement will be interpreted, construed and enforced in accordance with the laws of the State of North Carolina. Any and all claims, controversies, and causes of action arising out of or relating to this Agreement or the relationship of the parties to this Agreement, whether sounding in contract, tort, or statute, shall be governed by the laws of the State of North Carolina, including its statute of limitations, without giving effect to any conflict-of-laws rule that would result in the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
(j) Dispute Resolution. The parties agree to engage in good faith negotiations in the event of any dispute, controversy or claim between the parties arising out of or relating to this Agreement or the relationship between the Parties to this Agreement, whether sounding in contract, tort or statute (a “Dispute”). If a Dispute cannot be settled through good faith negotiations after twenty-one (21) calendar days of the first written notice of a Dispute provided by one party to the other, the parties agree to submit the Dispute to mediation, which requirement may be waived upon mutual written agreement. If the Dispute is not resolved by negotiation or mediation within sixty (60) days of first written notice of the Dispute provided by one party to the other, the Dispute will be finally resolved by confidential, binding arbitration administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules then in effect before a single arbitrator in accordance with the United States Arbitration Act. The hearing and all pre-hearing proceedings will take place in Wake County, North Carolina and be conducted in the English language. If a party submits a demand for arbitration, the parties agree that arbitration will be the exclusive forum for adjudication of the Dispute, and the parties agree to maintain the confidentiality of the arbitration proceedings, including entering into a confidentiality and protective order to be entered by the arbitrator. The cost of arbitration (including the fees and expenses of the arbitrator(s)) will be shared equally by the parties to the arbitration; provided, however, that each party to the arbitration will pay its own attorney’s fees and witness fees. The arbitrator(s) will have the authority to apportion liability between the parties to the arbitration, but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of this Agreement. Without limiting the foregoing, the arbitrator may not award punitive, exemplary or similar damages against either party. The award may be entered, confirmed and enforced in any court having jurisdiction. With regard to any action for breach of confidentiality or intellectual property obligations, nothing in this Section 11(k) will preclude with party from seeking interim equitable relief. Any such request by a party of a court for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate hereunder.