Subscription Services Agreement
A. Clarabridge™ provides services utilizing proprietary internal technologies and systems, which are useful for the collection, identification, and analysis of consumer sentiment derived from a variety of structured and unstructured data sources and reporting and routing such information to appropriate stakeholders within an organization and engagement with such consumers or other responsive action.
B. Clarabridge and the entity identified on a mutually executed Order Form as “Customer” desire to establish a business relationship, whereby Clarabridge will provide services to Customer, including access to certain of its proprietary systems for data collection, analysis and reporting and customer engagement.
TERMS OF AGREEMENT
This document, entitled “Subscription Services Agreement” together with its exhibits, the Service Levels attached hereto as Exhibit A contain certain terms and conditions of agreement (collectively, the “Agreement”) between Clarabridge, Inc., a Delaware corporation having its principal place of business at 11400 Commerce Park Drive, Suite 500, Reston, Virginia 20191 (“Clarabridge”), and the Customer. Each of Clarabridge and Customer may be referenced throughout this Agreement as a “Party.” Capitalized words and phrases used throughout this Agreement, if not otherwise defined on this Cover Page, shall have the meanings set forth or cross-referenced in Glossary of Defined Words and Phrases in Section 13.
This Agreement shall become effective as of the date when authorized representatives of both Parties have executed an Order Form referencing this Agreement (the “Effective Date”). If those authorized representatives execute such Order Form on different dates, the Effective Date shall be the latter date, or the date as of which Clarabridge first provides services under this Agreement, whichever first occurs. This Agreement shall be interpreted solely in the context of such Order Form and shall not bind either party unless and until an Order Form is executed by the parties, at which time the terms and conditions of this Agreement shall be automatically incorporated by reference into, and made a part of, that Order Form. In no event, however, shall this Agreement be construed as obligating the Company or Customer to enter into any particular Order Form with the other.
1. ORDER FORMS.
Subject to the terms and conditions of this Agreement, Clarabridge agrees to sell and provide (as applicable), and Customer agrees to purchase, the Access Rights for Subscription Services and the Professional Services that are identified in each Order Form. Each Order Form shall be binding upon the Parties only after mutual execution, and each mutually executed Order Form shall be considered an integral part of this Agreement. In the event of any conflict between the provisions of this Agreement and the terms of any Order Form or any Statement of Work, the provisions of this Agreement shall supersede and govern, followed in precedence by the Order Form and then the Statement of Work, unless, in each case, the Order Form or Statement of Work, as the case may be, both (i) expressly states that the Parties mutually intend that the Order Form or Statement of Work should govern in that instance and (ii) expressly identifies the provision(s) of this Agreement to be superseded. No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Customer with or as part of any Order Form or Statement of Work shall be binding upon Clarabridge.
2. USE OF SUBSCRIPTION SERVICES.
2.1 Right to Use Subscription Services.
(a) For so long as this Agreement remains in effect, Clarabridge agrees to provide access to Subscription Services within the scope of the Access Rights purchased by Customer pursuant to a mutually executed Order Form. Customer acknowledges that the Access Rights purchased under this Agreement may be used only by Customer’s Authorized End Users solely for Customer’s internal business purposes, and only during the Access Term for which the particular Access Rights have been purchased, as stated in the applicable Order Form.
(b) Customer acknowledges (i) that it is responsible for procuring and operating all computer systems, software, and telecommunications services required for Customer’s Authorized End Users to access and use the Subscription Services, and Customer may be unable to access or utilize some or all aspects of the Subscription Services if it does not utilize an updated and recent stable version of one of the predominantly utilized browsers (Internet Explorer, Safari, Chrome or Firefox), and (ii) this Agreement allows only for the purchase of certain rights of access to the Subscription Services, and nothing in this Agreement may be interpreted as an implied license or to require Clarabridge to deliver a copy of any software or other product utilized by Clarabridge to provide the Subscription Services.
2.2 Authorized End Users. Customer is responsible for creating and maintaining user accounts and all use of its Access Rights under its Authorized End User login credentials in compliance with this Agreement and ensuring that those accounts are protected with strong passwords to prevent unauthorized use. Clarabridge will permit Customer to register the number of unique sets of login credentials (each consisting of a user name and password) set forth on the applicable Order Form for the Subscription Services and, unless otherwise approved in writing by Clarabridge in its sole discretion, Customer will ensure that no more than one Authorized End User will have access to or will use each set of login credentials. Customer represents and warrants that: (a) all required registration information Customer submits is truthful and accurate; and (b) Customer will maintain the accuracy of such information. Customer’s account shall be terminated at the termination or expiration of this Agreement. Customer agrees to immediately notify Clarabridge of any unauthorized use, or suspected unauthorized use of Customer’s account or any other breach of security. Clarabridge will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements.
2.3 Documentation License. Subject to the terms and conditions of the Agreement, Clarabridge hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license during the Term to reproduce copies of the Documentation and to modify, adapt, translate and create derivate works therefrom solely for use by Customer in connection with the exercise of its Access Rights and solely for its internal business purposes and not, in any event, for external publication or distribution. Customer acknowledges that the Documentation is Clarabridge's Confidential Information, and hereby agrees to accurately reproduce within any copies, modifications, adaptations, translations or derivative works of the Documentation all copyright notices, trademark notices or confidentiality notices contained in the Documentation or in the Documentation from which any modification, adaptation, translation or derivative works were derived.
3. RESERVATION OF RIGHTS AND RESTRICTIONS.
3.1 Proprietary Rights; No Implied Licenses. Customer acknowledges that, any Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, the Subscription Services and the Documentation, including any developments, inventions, or technology developed by Clarabridge before, during or after the Term and any Subscription Services-related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by Customer to Clarabridge during the Term are, as between the Parties, owned by Clarabridge and not Customer (which statement is not a representation or warranty). All Reports and Content and other data or information that constitute or embody Customer’s Confidential Information are, as between the parties, owned by Customer. There are no licenses granted by implication under this Agreement and Clarabridge reserves all rights that are not expressly granted.
3.2 General Restrictions on Use. Customer agrees not to act outside the scope of the rights that are expressly granted by Clarabridge in this Agreement. Customer will not (a) make the Services available to anyone other than Customer and its Authorized End Users; (b) sell, resell, license, sublicense, rent, lease or distribute any Services or Reports, or include any Services or Reports or any derivative works thereof in a service bureau or outsourcing offering to any third party; (c) copy, modify, adapt, alter, translate or make derivative works based upon the Subscription Services (other than any copies, modifications or derivative works made solely from the Reports which are created solely for Customer’s internal business purposes); (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services is compiled or interpreted save to the extent that Customer cannot be prohibited from so doing under applicable law, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code; (e) use the Subscription Services to conduct or promote any illegal activities; (f) use the Subscription Services to generate unsolicited email advertisements or spam; (g) use the Subscription Services to stalk, harass or harm another individual; (h) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; or (i) use any portion of the Subscription Services or Website or Clarabridge’s or its affiliate’s tradenames or trademarks in any manner that may give a false or misleading impression, attribution, or statement as to Clarabridge, or as to any third party. Customer agrees to use the Subscription Services only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities. Customer acknowledges and agrees that compliance with this paragraph is an essential basis of this Agreement.
4. TREATMENT OF CONTENT.
4.1 Selection of Customer Content and Third Party Content. Customer understands that the Subscription Services are capable of processing Customer Content that is uploaded by Customer to Clarabridge’s servers. Customer further understands that the Subscription Services may include features that enable Customer to retrieve or specify Third Party Content to be retrieved via the Subscription Services from a variety of third-party websites and other third-party resources. As between the Parties, Customer alone is responsible for selection of all Content, and Customer assumes all risks associated with the content, accuracy, completeness, consistency, integrity, legality, reliability and appropriateness of Content and the use of all such Content by Customer and by Clarabridge in connection with providing the Services contemplated by this Agreement as set forth on any mutually executed Order Form.
4.2 Rights in Customer Content and Third Party Content.
(a) Customer hereby grants to Clarabridge (i) a non-exclusive license to use, store, process, analyze and display in Reports all Content during the Term for the limited purposes of performing Clarabridge’s obligations under this Agreement; and (ii) a non-exclusive, worldwide, royalty-free and fully paid license to collect and use all such data, as well as all data collected during the Term regarding Customer’s use of the Subscription Services, in aggregated statistical form for the development, maintenance and provision of Clarabridge products and services, provided that in no event may such uses permit the attribution of Customer as the source of particular data. Further, without conveying any right, title or interest, the Parties agree that Clarabridge may make accurate informational references to Customer’s trade names, trademarks or service marks (collectively, the “Marks”) in connection with its performance of the Services, such as by branding Customer’s landing page with its Marks, subject to the condition that Clarabridge shall promptly cease any use of any Mark owned by Customer in connection with the performance of the Services upon (i) termination of this Agreement; or (ii) receipt of notice from the Customer to discontinue such use.
(b) Customer acknowledges that: (i) Third Party Content may be subject to Intellectual Property Rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy or obscenity laws; (ii) except for such rights as are granted by you pursuant to Section 4.2(a), Clarabridge does not own any Intellectual Property Rights or other rights or licenses in or to the Third Party Content. Prior to uploading Content to the Subscription Services or using the Subscription Services to collect or retrieve Content, Customer shall, at its own expense, obtain all licenses, consents and/or other permissions from appropriate third parties as are necessary for Customer’s use of such Content and to enable Customer to grant the rights granted by Section 4.2 and to comply with the requirements of applicable law.
4.3. Content Disclaimers.
(a) Clarabridge shall have no obligation to preview, verify, flag, modify, filter or remove any Content (although Clarabridge may do so in at its sole discretion), and Clarabridge shall not be responsible for any failure to remove, or for any delay in removing, harmful, inaccurate, unlawful or otherwise objectionable Content.
(b) Customer acknowledges that, while Clarabridge maintains back-ups of all Content in accordance with its security documentation described below, Customer is instructed to maintain its own back-up copies of Content as Clarabridge shall not be responsible or liable for the deletion, destruction, damage or other failure to store any Content.
(c) Customer acknowledges that, in the event the relevant third party provider of any particular Third Party Content ceases to make the same available for use as contemplated in this Agreement on terms acceptable to Clarabridge, Clarabridge shall have the right to discontinue provision of any tools to retrieve or access such Third Party Content, and/or may discontinue the processing, analysis, storage or provision of access to any such Third Party Content, without thereby entitling Customer to any refund, credit, or other compensation, other than a refund of the unearned portion of any fee that was paid to Clarabridge, if any, for actually supplying the access to such Third Party Content.
(d) Clarabridge does not provide any warranty or support under this Agreement and Customer agrees that Clarabridge shall not be liable for any non-Clarabridge products or services, including without limitation, any third party websites, Customer Content and/or Third Party Content.
4.4. Security; Protection of Customer Content. Clarabridge will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Content and other Customer Confidential Information, as described in Clarabridge’s security documentation at , which is incorporated into this Agreement by this reference. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Content by Clarabridge personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compliance with Legal Duties) below, or (c) as Customer expressly permits in writing. Where Customer’s use of the Services includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC until 25 May 2018 and the General Data Protection Regulation (EU) 2016/679 on and from 25 May 2018) that is sourced from the European Economic Area (EEA), the terms of the Data Processing Annex located at https://www.clarabridge.com/eu-dpa shall apply to such processing, and are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses in Attachment 1 to the DPA, Customer is the controller and each Party’s execution of the Cover Page shall be deemed its respective execution of the Data Processing Annex, the Standard Contractual Clauses and Appendix 1 thereto. Clarabridge shall remove the data of a specified individual upon the request of Customer (or that individual, to the extent required under applicable law) at Clarabridge’s standard professional services rates.
5. PROFESSIONAL SERVICES; STATEMENTS OF WORK. Subject to the terms and conditions of this Agreement, Customer may request that Clarabridge provide certain Professional Services related to Customer’s use of the Subscription Services, including, by way of example, configuration of the Subscription Services, training of Customer personnel regarding use of the Subscription Services and/or provision of managed services or consulting services that related to the Subscription Services. Upon Customer’s request, Clarabridge shall negotiate in good faith regarding terms and conditions according to which such services would be provided. Any Professional Services to be provided will be included in an Order Form, which shall describe the fees, costs and expenses payable by the Customer in connection with the performance of such Professional Services, and a Statement of Work, which shall describe the scope and proposed timing of such Professional Services. Each Order Form and Statement of Work shall be binding upon the Parties only after mutual execution. Each mutually executed Order Form and Statement of Work shall be considered an integral part of this Agreement.
6. FEES; PAYMENT.
6.1 Fees Payable. In consideration for the rights granted and the promises made by Clarabridge under this Agreement, Customer agrees to pay to Clarabridge the amounts stated in each mutually executed Order Form at such times as the applicable Order Form requires. Customer agrees to make all payments, without offsets or other deductions, no later than the date when they are due. Customer agrees to provide Clarabridge with complete and accurate billing information and contact information and to update this information within thirty (30) days of any change to it.
6.2 Additional Charges for Late Payments. If Customer fails to make any undisputed payment when due, Clarabridge will automatically have the right, without prejudice to any other remedies it may have, and without prior notification, to charge an additional fee equal to one percent (1%) of the overdue amount for each full or partial month that the amount remains unpaid. If Clarabridge elects to charge these additional amounts, Customer agrees to pay the charges in full within thirty (30) days after Clarabridge issues an invoice.
6.3 Suspension of Access Rights. In the event that Customer’s account is more than thirty (30) days overdue, Clarabridge shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s access to all Subscription Services, without further notice to Customer, until Customer has paid the full balance owed. No Service Level Credits will accrue as a result of any such period of suspension.
6.4 Tax Responsibilities. Unless otherwise stated, Clarabridge’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Clarabridge has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Clarabridge with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Clarabridge is solely responsible for taxes assessable against it based on its income, property and employees.
7.1 Basic duties regarding Confidential Information.
(a) With regard to information that one Party discloses to the other, the disclosing Party is the “Owner,” and with regard to information it receives from the other, the receiving Party is the “Recipient.” The Recipient agrees not to disclose or authorize access to the Owner’s Confidential Information, except to the Recipient’s employees and agents who are informed of the confidential nature of the Confidential Information and who have agreed in writing or who are otherwise legally bound to treat the Owner’s Confidential Information in a manner consistent with Recipient’s duties under this Agreement. The Recipient will not use the Owner’s Confidential Information except (i) as necessary to perform the Recipient’s duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Even after termination or expiration of this Agreement, the Recipient will continue to treat Confidential Information received from the other Party in accordance with this Agreement, for so long as the information fits the definition of “Confidential Information,” or until use and disclosure of the information would no longer be restricted even if this Agreement remained in full force.
(b) The Recipient’s duties under this section will apply only to (i) information which is marked to clearly identify it as the Owner’s Confidential Information, or, if disclosed orally, which is identified as Confidential Information both at the time of disclosure and again in a writing delivered by the Owner within a reasonable time, and (ii) information which, due to its nature or the circumstances surrounding its disclosure, any reasonable person would be compelled to conclude is intended by the Owner to be considered confidential and proprietary for purposes of this Agreement. The Documentation and all non-public aspects of the Services shall in any event be considered Clarabridge’s Confidential Information and the Customer Content and Reports shall in any event be considered Customer’s Confidential Information.
7.2 Exceptions to confidentiality obligations. Even if some information would be considered Confidential Information according to the definition stated in this Agreement, the Recipient will have no duties regarding that information if (i) the Recipient develops the same information without any use of information obtained from the Owner; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient.
7.3 Compliance with legal duties. The Recipient will not be in breach of this Agreement by delivering some or all of the Owner’s Confidential Information to a court, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Owner. Unless prevented by law, the Recipient agrees to notify the Owner as far in advance as reasonably possible before the Recipient delivers the Owner’s Confidential Information to any of those third parties. If requested by the Owner, and if permitted by law, the Recipient will cooperate with the Owner, at the Owner’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.
7.4 Attorneys and accountants. The Recipient may permit its attorneys and accountants to view the Owner’s Confidential Information, provided that they are under legal and/or professional duties to maintain the information’s confidentiality, and only for purposes of advising the Recipient regarding its legal rights and duties.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Mutual Representations. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of each Party’s respective obligations as set forth in this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
8.2 Service Warranty. During the Term, the Subscription Service offerings conform in all material respects with the Documentation and will meet the Service Levels specified on Exhibit B. If the applicable Subscription Service fails to conform or achieve the Service Levels so specified, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Subscription Service in accordance with the terms set forth on Exhibit B. The respective Subscription Service’s system logs and other records shall be used for calculating any service level events. Clarabridge represents and warrants that all Professional Services shall be provided in a professional and workmanlike manner, in accordance with industry standards. The Professional Services shall be performed in a professional and workmanlike manner by personnel with appropriate skill and training.
8.3 Customer Representations and Warranties. Customer represents and warrants that it will not, nor will it permit or authorize anyone else to (i) upload to the Subscription Services any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system, data or personal information, or (ii) upload, post, store, view, transmit, distribute or otherwise publish any Content to or using the Subscription Services that (A) restricts or inhibits any other person from using and enjoying the Subscription Services, (B) is unlawful, fraudulent, threatening, abusive, libelous, defamatory, invasive of another’s privacy or otherwise tortious; (C) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law; or (D) violates or infringes the rights of third parties, including, but not limited to, Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights.
8.4 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, THE DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLARABRIDGE ARE PROVIDED “AS IS,” AND CLARABRIDGE DISCLAIMS ANY AND ALL OTHER PROMISES, CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. CLARABRIDGE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLARABRIDGE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.
9.1 Indemnification of Customer.
(a) Clarabridge agrees to defend or settle any claim brought against Customer by any third party arising from allegations that Customer’s use of the Subscription Services as authorized in this Agreement infringes such third party’s U.S. patents issued as of the Effective Date, or alleging that such use infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws. Clarabridge shall pay all amounts that are finally awarded against Customer based on any such claims by a court of competent jurisdiction or any amounts that Clarabridge has agreed to pay in settlement of the relevant third-party claim.
(b) If a claim under Section 9.1(a) above is made or appears possible, Customer agrees to permit Clarabridge, at Clarabridge’s sole discretion, to: (i) enable Customer to continue to use the Subscription Services, as applicable; (ii) to modify or replace any such infringing material to make it non-infringing; or (iii) require Customer to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim, and in the case of this clause (iii), Clarabridge shall in connection with such requirement refund the pro rata portion of any unearned fees attributable to the materials or portion of the Subscription Services with regard to which the use is discontinued.
(c) Section 9.1(a) shall not apply if the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) modification of any Clarabridge product or services by any person other than Clarabridge or its authorized agents; (ii) combination, operation or use of any Clarabridge products or service with other software, hardware, systems or technologies not provided by Clarabridge or explicitly authorized by the Documentation; (iii) the Customer Content or any Third Party Content; and/or (iv) use of the Subscription Services other than in accordance with the Documentation (collectively, “Customer’s Assumed Risks”).
(d) THE PROVISIONS OF THIS SECTION 9 SET FORTH CLARABRIDGE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9.2 Customer’s Indemnity Obligations. Customer agrees to defend or settle any claim brought against Clarabridge by any third party arising from allegations that the Customer Content or Third Party Content, or Customer's use of the Subscription Services in breach of this Agreement or pursuant to Customer’s Assumed Risks, infringes or misappropriates such third party’s Intellectual Property Rights or other proprietary rights including rights of privacy and rights of publicity, or violates applicable laws. Customer shall pay all amounts that are finally awarded against Clarabridge based on any such claims by a court of competent jurisdiction or any amounts that Customer has agreed to pay in settlement of the relevant third-party claim.
9.3 Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
10. EXCLUSIONS AND LIMITATIONS OF LIABILITY.
10.1 Exclusions of Remedies; Limitation of Liability. EXCLUDING CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER FORM, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER FORM AND EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO CLARABRIDGE BY THE CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.2 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 10 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
11. TERM AND TERMINATION.
11.1 Duration of Agreement. The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect for so long as any Access Term remains in effect and for thirty (30) days thereafter, unless it is terminated by one of the Parties in one of the situations permitting termination as set forth below in this Section 11 (the “Term”). This Agreement will expire as of the date that is thirty (30) days following the date when all Access Terms have expired.
11.2 Termination for Breach. Either Party may terminate this Agreement immediately by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach.
11.3 Termination Upon Bankruptcy or Insolvency. Either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.
11.4 General consequences of termination. Effective immediately upon expiration or termination of this Agreement, (i) Customer shall cease, and shall direct its users to cease, use of the Subscription Services, (ii) all licenses granted under this Agreement will become void, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party. If a Party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the Party will make payment in full within ten (10) days after the expiration or termination. Following expiration or termination Clarabridge will have no obligation to retain Content or to return any Content to Customer and may, unless legally prohibited, elect at its sole option to delete all such Content from its systems.
11.5 Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Section 3, 6, 7, 9 (with regard to claims accrued prior to expiration or termination), 10, 11.4 11.5, 12 and 13. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.
12. MISCELLANEOUS PROVISIONS.
12.1 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient, to the Parties at their respective addresses set forth on the Cover Page or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. Notices to Clarabridge shall be addressed to the attention of its General Counsel and its Chief Financial Officer and copied by email to Legal@clarabridge.com, and notices to Customer shall be addressed to the person identified as Customer’s primary point of contact on the Cover Page, unless in either case the receiving Party has otherwise indicated by written notice in accordance with this provision. Such notices will be effective on the date of such transmittal or receipt. If either Party delivers any notice by means of email transmission, unless the receiving Party responds with confirmation of receipt, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party.
12.2 Excuse from liability for non-performance due to force majeure. Except for payments owed hereunder, if a Party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing Party.
12.3 Assignment. This Agreement shall be binding and inure to the benefit of Customer, Clarabridge and each of their respective successors and assigns. Neither Party shall assign its rights or obligations under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect, provided that either Party may assign this Agreement to an acquirer, who is not a competitor of the other Party, of all or substantially all of the assets to which this Agreement relates by operation of law or otherwise, without the prior written consent of the other Party.
12.4 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.5 Governing Law; Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FAIRFAX COUNTY, VIRGINIA. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. To the fullest extent permitted by law, each Party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such Party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.
12.6 Entire Agreement. The Parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that this Agreement addresses, including the parties respective confidentiality obligations. The Parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force.
12.7 Customer Reference Program. Customer agrees that Clarabridge may use Customer's name and Marks in its customer lists including in its website listings of customers. Clarabridge recognizes that value of references from its customers in further strengthening its reputation and building its customer base and has established a customer reference program (the “Program”) in order to recognize the efforts of those customers that participate in this effort. After Customer has experienced the benefits of the Subscription Services, Customer agrees to consider in good faith participation in the Program.
12.8 Independent Contractor. The Parties are and shall be independent contractors to one another, and nothing herein shall be interpreted or construed as creating or establishing the relationship of employer and employee, partners, agent, a joint venture or any other legal relationship.
12.9 Interpretations. The Parties agree that the following rules should be applied when interpreting the words of this Agreement, unless the express words of the Agreement indicate otherwise: (i) all references to one gender apply equally to both genders; (ii) definitions of nouns in the singular also apply to the plural, and vice versa; and (iii) any use of the term “including,” if followed by a list, will be interpreted to mean “including, without limitation.” If any provision in this Agreement requires a writing, the writing must be typed or hand-written on paper, and any provision requiring a signed writing will be interpreted to require an electronic signature (in accordance with applicable law) or a hand-written signature. References to “sections,” “paragraphs,” “clauses” and “provisions” are references to portions of this document only, unless the reference expressly states otherwise. Whenever this Agreement makes reference to a certain number of days, it is referring to calendar days, unless it specifically references “business days,” in which case the counting of days will exclude Saturdays, Sundays, and all holidays when the offices of U.S. federal agencies are closed.
12.10 Background Information. If any background information or “recitals” are contained on the first page(s) of this document prior to the contractual provisions, the Parties intend that such information and recitals should have no legally binding effect whatsoever, nor be interpreted as representations or warranties.
12.11 Participation in Drafting. The Parties intend that this Agreement should be interpreted in all instances as if they participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a Party on the basis that it drafted the provision.
12.12 Enforceability. Even if the law will not enforce a provision of this Agreement in a particular instance, the Parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner or be modified so that would render it enforceable, while still reflecting the Parties’ mutual intent, they intend for that interpretation or modification, as applicable, to apply. If permitted by law, the Parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.
12.13 Agreement Amendments. The Parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.
12.14 Waivers. Even if a Party fails to enforce its rights under this Agreement in a particular instance, the other Party must still perform its duties in that instance unless the non-enforcing Party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.
12.15 No implications of section titles. The titles to each of the sections of this Agreement are intended only to facilitate convenient reference; the Parties agree that those titles are not part of the Agreement and should not be used to interpret any part of this Agreement.
12.16 Execution of Multiple Copies. If the Parties sign multiple copies of this Agreement, they intend that all of those copies will be considered original copies, but together all of those copies represent only one contract.
13. GLOSSARY OF DEFINED WORDS AND PHRASES.
For purposes of this Agreement, certain capitalized words and phrases will have the meanings set forth or cross-referenced below.
“Access Rights” are contractual rights to access, receive, use and digitally display the Subscription Services according to the technical procedures and protocols established according to this Agreement. The scope of any particular Access Rights may be defined by the terms of the applicable Order Form pursuant to which such Access Rights are purchased, including the Access Term, Maximum Feedback Records, maximum historical Feedback Records, maximum through-put, Authorized Sources or other use restrictions applicable to such Access Rights.
“Access Term” means the period of time during which particular Access Rights remain valid, as stated in the applicable Order Form pursuant to which such Access Rights are purchased. For avoidance of doubt, particular sets of Access Rights purchased under separate Order Forms may have differing Access Terms.
“Authorized End Users” are individual named persons for whom Customer has purchased Access Rights, and may include only employees or agents of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business.
“Authorized Sources” are the third-party websites or other online sources to the extent identified in an Order Form, from which content may be retrieved by Customer or at Customer’s direction using the automated tools within the Subscription Services. If no such sources are specifically identified, then subject to the obligations and restrictions set forth in Sections 4 and 8.3 of this Agreement and applicable laws any sources shall be deemed authorized.
“Confidential Information” means all confidential data or information in any form disclosed by one Party to the other Party by any means. As a non-exhaustive list of examples, Confidential Information includes data, information regarding a Party’s financial condition and financial projections, business and marketing plans, product plans, product prototypes, the results of product testing, research data, market intelligence, technical designs and specifications, secret methods, source code of proprietary software, the content of unpublished patent applications, customer lists, vendor lists, internal cost data and the terms of contracts with employees and third parties.
“Content” means the Customer Content and the Third Party Content.
“Customer Content” means the Feedback Records, data (structured and unstructured), media, and other content generated, collected or recorded by the Customer, or by any supplier or licensor to Customer, including without limitation, any call center data, any data collected in response to surveys and any on-line tracking data, that is uploaded to or that is otherwise made available by the Customer to the Subscription Services.
“Documentation” means the manuals, tutorials, reference materials and similar materials, whether in print or electronic format, ordinarily provided by Clarabridge to customers that describe the functionality of the Subscription Services.
“Feedback Record” means an unstructured set of data (data that lacks organization or precision, or data for which its relationship to other data is difficult to ascertain or categorize), in each case no greater than 2,048 characters in length (with longer records being counted in whole numbers as two or more Feedback Records, as applicable based on the number of total full or partial multiples of 2,048), which data set has been generated from Authorized Sources and is sent to or received by the Subscription Services for processing and transformation. Null sets of data (such as a survey non-response to an open text field) and structured sets of data of 10 characters or less (such as Y/N True/False or rating responses in a survey) are counted as one quarter (25%) of a Feedback Record rather than a whole record. Chat and analogous multi-threaded, two-way communications occurring over the course of a single calendar day are counted as two Feedback Records (one for each side of the multi-threaded communication), so long as each side of the communication does not exceed 2,048 characters, with each side of longer records or records spanning more than one calendar day being counted in whole numbers as two or more records, as applicable.
“Historical Feedback Records” means any Feedback Record that originated prior to the Effective Date (e.g., a survey response that was generated by a client of Customer prior to the Effective Date would be a Historical Feedback Record).
“Intellectual Property Rights” are all intellectual property rights, including the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
“Maximum Feedback Records” shall mean, with respect to any particular Order Form, (i) the maximum number of Feedback Records that may be processed annually using the Subscription Services during the Access Term applicable to that Order Form, and (ii) the maximum number of Feedback Records that may be stored in the Subscription Services at any particular time during such Access Term, unless additional storage capacity is purchased separately.
“Order Form” means a document which expressly identifies itself as an order form that is subject to this Agreement, whereby the Customer orders one or more of the following: (i) Access Rights for the Subscription Services; (ii) Professional Services; or (iii) any other products or services offered by Clarabridge pursuant to this Agreement.
“Professional Services” means configuration services, training services, and/or technical support services to be provided by Clarabridge as specified in a mutually executed Order Form.
“Reports” means the content of any reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by the Services that are comprised of reports on or representations of Content or other Customer Confidential Information after processing or transformation in any manner by or pursuant to the Services; but excluding for the purposes of clarity the format, design, method, algorithms and all intellectual property and technology and any Intellectual Property Rights therein used in or underlying the preparation and presentation of the Reports.
“Service Levels” means the standard service levels provided by Clarabridge, as further described in Exhibit B.
“Services” means, collectively or individually, the Subscription Services and/or the Professional Services.
“Statement of Work” means a separate, mutually signed document that unambiguously identifies this Agreement and expressly states that the Parties intend for it to be considered a Statement of Work under this Agreement, and that (i) identifies the duties that each Party agrees to perform and, if applicable, the time period during which those duties are to be performed and/or completed; (ii) identifies any deliverables to be provided by either Party; and (iii) states any payments to be made by Customer and any other applicable economic terms.
“Subscription Services” means the particular online services identified in a mutually executed Order Form, to be performed by means of Clarabridge’s proprietary methodologies and systems, to which Access Rights are purchased by Customer, and to which access is provided by Clarabridge via its Web site accessible at the URL . Customer acknowledges that the Subscription Services may include access to particular functional modules of Clarabridge’s system, but not to other modules, as may be indicated in the applicable mutually executed Order Form.
“Third Party Content” means all data, social media content, posts, blogs, surveys, ratings, reviews, feedback or any other information collected or otherwise obtained from any website by Customer using the automated tools within the Subscription Services, including without limitation, Facebook, Twitter and LinkedIn.
[End of Subscription Services Agreement]
SUBSCRIPTION SERVICES AGREEMENT
Standard Service Levels
1. Clarabridge shall provide the following “Maintenance Services” for the Subscription Services:
1.1. Telephone / Email. Clarabridge will provide reasonable telephone and / or email support for problem determination and resolution during Clarabridge’s normal working hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, Eastern Time for problems arising either during software development or production deployments involving Subscription Services. Clarabridge may require Customer to provide a written assistance request to properly document the problem.
• Support Phone Number: 1-800-239-7515
• Support Email Address: support@Clarabridge.com
1.2. Updates and Upgrades. Clarabridge will, from time to time, make available to Customer corrections and minor modifications to existing features of the Subscription Services (“Updates”) and improvements that provide additional functionality to the Subscription Services (“Upgrades”) at no additional cost to Customer. Nothing here shall require Clarabridge to make Upgrades or to make Updates except as provided herein. Update and Upgrades will be treated as Subscription Services and subject to the same restrictions, terms and conditions contained in the Agreement.
1.3. Error Correction. Clarabridge will make commercially reasonable efforts to correct reproducible or proven errors in the Subscription Services (excluding custom configurations such as custom reports or application extensions) as provided by Clarabridge (and not including any software written or modified by Customer) according to the following schedule (for the purposes hereof an “error” means a failure of the Subscription Services to perform substantially as provided in the Documentation):
Catastrophic product, module, or operational failures without a viable workaround.
1 business hour
Every 3 business hours
1 business day
Substantiated defects which are a serious inconvenience to the end user.
4 business hours
2 business days
All defects which the end user can easily avoid or work around.
2 business days
10 business days
- Acknowledgement consists of an acknowledgement to the Customer, either in email or by phone as to the receipt of the problem as reported and a confirmation of the problem severity. Clarabridge will begin the process of problem determination and resolution at this point.
- Status Updates consist of regular communications, either via email or phone as to the status of the problem determination and resolution.
- Resolution consists of providing, as appropriate, one of the following to Customer: an existing correction; a new correction; a viable detour or workaround; or a plan on how the problem will be corrected.
- Closure consists of providing, as necessary, a final correction or work around of the defect including Updates of the Subscription Services and revised or new Documentation.
- Severity Classification: Customer shall when reporting an error qualify and classify the Error in its good faith, reasonable judgment. If Clarabridge reasonably determines, in good faith, that a previously reported and in progress issue’s severity needs to be re-classified or escalated, Clarabridge shall be entitled to do so upon providing notice to Customer of same. If any classification or re-classification is not agreed, the Parties will attempt to resolve in good faith any dispute regarding the applicable classification.
2. Support Services by Designated Parties. Clarabridge may designate third parties including distributors, OEMs, or VARs to provide any of the Maintenance Services identified in this agreement, although Clarabridge will remain responsible to Customer for the performance of all Maintenance Services.
3. Customer’s Obligations for Support Services. Customer will designate up to four (4) Contact Person(s) (or such other replacement individuals as Customer may designate in writing) who shall be the sole contacts for the coordination and receipt of the Maintenance Services set forth in these terms and conditions. Each Contact Person shall be knowledgeable about the Subscription Services and shall attend Clarabridge’s software training.
4. Service Level Standards. The following defines service level standards for the Subscription Services:
|Service/Activity||Service Level||Service Level Credit|
|Availability of the Subscription Services||The Subscription Services will be available to users for use 99.00% of the time each month, not including scheduled downtime. Scheduled downtime shall be for regular maintenance and upgrades, and will be communicated with at least 24 hours of notice. Any downtime that might require more than 2 hours will be scheduled at least 7 days in advance.||5% of the recurring monthly fee for the Subscription Services for the month of the failure.|
In the event of unscheduled downtime the system shall be restored to a fully operational state within 48 hours.
5% of the recurring monthly fee for the Subscription Services for the month of the failure.
Failure to comply with the requirements with respect to Critical or Emergency malfunctions in a month.
5% of the recurring monthly fee for the Subscription Services for the month of the failure.