THIS MAIN SERVICES AGREEMENT GOVERNS CUSTOMER ACQUISITION AND USE OF EL MEDIA SERVICE, SOLUTIONS BY CLARITY. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS, PARTICIPATES OR IS PART OF A FREE OR BETA TRIAL OF EL MEDIA’S CLARITY SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS and CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH AN INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

The Services may not be accessed for purposes of monitoring their availability, performance or functionality or for any other benchmarking or competitive purposes. EL Media’s direct competitors are prohibited from accessing the Services, except with EL Media’s prior written consent.

 

This Agreement was last updated on October 31, 2023. This is effective between Customer and EL Media as of the date of Customer’s accepting the EL Media Agreement (the “Effective Date”).

 

1. DEFINITIONS

• “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
• “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
• “Agreement” means this Main Services Agreement. “Beta Services” means services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
• “Content” means information obtained by EL Media from Customer data connection sources, publicly available sources or third-party providers and made available to Customer through the Services.
• “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Subscription(s).
• “Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-EL Media Applications.
• “Free Services” means Services that EL Media makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
• “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
• “Non-EL Media Application” means Web-based, mobile, offline or other software functionality that interoperates with a Service, that is provided by Customer or a third party or under similar designation. Non-EL Media Applications, other than those obtained or provided by Customer, will be identifiable as such.
• “Subscription Agreement” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and EL Media or any of their Affiliates, including any addenda and supplements thereto. By entering into an Subscription Agreement hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
• “Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Subscription Agreement or online purchasing portal, as distinguished from Free Services or those provided pursuant to a beta phase or free trial.
• “Services” means the products and services that are ordered by Customer under an Subscription Agreement or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by EL Media, including associated EL Media offline or mobile components. “Services” exclude Content and Non-EL Media Applications.
• “EL Media” is the company in the “EL Media Contracting Entity, Notices, Governing Law, and Venue” section below.
• “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by EL Media without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, EL Media at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

 

2. EL MEDIA RESPONSIBILITIES

2.1 Provision of Purchased Services.

EL Media will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Subscription(s) and Documentation, (b) provide applicable EL Media standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which EL Media shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond EL Media’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving EL Media employees), Internet service provider failure or delay, Non-EL Media Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to EL Media’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Subscription Agreement.

 

2.2 Protection of Customer Data.

EL Media will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by EL Media, its Processor Binding Corporate Rules, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and an applicable Affiliate's execution of an Subscription Agreement, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, EL Media will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, EL Media will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

 

2.3 EL Media Personnel.

EL Media will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with EL Media’s obligations under this Agreement, except as otherwise specified in this Agreement.

 

2.4 Beta Services.

From time to time, EL Media may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion.

 

2.5 Free Trial.

If Customer registers on EL Media’s or an Affiliate’s website for a free trial, EL Media will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by EL Media in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY EL MEDIA” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EL Media SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EL MEDIA’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, EL MEDIA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EL Media AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

 

2.6 Free Services.

EL Media may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that EL Media, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that EL Media will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if EL Media terminates Customer’s account, except as required by law EL Media will provide Customer a reasonable opportunity to retrieve its Customer Data. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY EL MEDIA” SECTION, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EL MEDIA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EL MEDIA’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, EL MEDIA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EL MEDIA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. 3. USE OF SERVICES AND CONTENT

 

3.1 Subscriptions.

Unless otherwise provided in the applicable Subscription Agreement or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Subscription Agreement or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by EL Media regarding future functionality or features.

 

Solutions by Clarity’s use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.

 

3.2 Usage Limits.

Services and Content are subject to usage limits specified in Subscription(s) and Documentation. If Customer exceeds a contractual usage limit, EL Media may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding EL Media’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Subscription Agreement for additional quantities of the applicable Services or Content promptly upon EL Media’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

 

3.3 Customer Responsibilities.

Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Subscription(s), (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-EL Media Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify EL Media promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, the Acceptable Use and External Facing Services Policy Subscription(s) and applicable laws and government regulations, and (e) comply with terms of service of any Non-EL Media Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in EL Media’s judgment threatens the security, integrity or availability of EL Media’s services, may result in EL Media’s immediate suspension of the Services, however EL Media will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

 

3.4 Usage Restrictions.

Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Subscription Agreement or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-EL Media Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-EL Media Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of EL Media intellectual property except as permitted under this Agreement, an Subscription Agreement, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Subscription Agreement or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

 

3.5 Removal of Content and Non-EL Media Applications.

If Customer receives notice, including from EL Media, that Content or a Non-EL Media Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in EL Media’s judgment continued violation is likely to reoccur, EL Media may disable the applicable Content, Service and/or Non-EL Media Application. If requested by EL Media, Customer shall confirm deletion and discontinuance of use of such Content and/or Non-EL Media Application in writing and EL Media shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if EL Media is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, EL Media may discontinue Customer’s access to Content through the Services.

 

4. NON-EL MEDIA PRODUCTS AND SERVICES

4.1 Non-EL Media Products and Services.

EL Media or third parties may make available third-party products or services, including, for example, Non-EL Media Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-EL Media provider, product or service is solely between Customer and the applicable Non-EL Media provider. EL Media does not warrant or support Non-EL Media Applications or other Non-EL Media products or services, whether or not they are designated by EL Media as “certified” or otherwise, unless expressly provided otherwise in an Subscription Agreement. EL Media is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-EL Media Application or its provider.

 

4.2 Integration with Non-EL Media Applications.

The Services may contain features designed to interoperate with Non-EL Media Applications. EL Media cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-EL Media Application ceases to make the Non-EL Media Application available for interoperation with the corresponding Service features in a manner acceptable to EL Media.

 

5. FEES AND PAYMENT

5.1 Fees.

Customer will pay all fees specified in Subscription(s). Except as otherwise specified herein or in an Subscription Agreement, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

 

5.2 Invoicing and Payment.

Customer will provide EL Media with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to EL Media. If Customer provides credit card information to EL Media, Customer authorizes EL Media to charge such credit card for all Purchased Services listed in the Subscription Agreement for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Subscription Agreement. If the Subscription Agreement specifies that payment will be by a method other than a credit card, EL Media will invoice Customer in advance and otherwise in accordance with the relevant Subscription Agreement. Unless otherwise stated in the Subscription Agreement, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to EL Media and notifying EL Media of any changes to such information.

 

5.3 Overdue Charges. If any invoiced amount is not received by EL Media by the due date, then without limiting EL Media’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) EL Media may condition future subscription renewals and Subscription(s) on payment terms shorter than those specified in the “Invoicing and Payment” section above.

 

5.4 Suspension of Service and Acceleration.

If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized EL Media to charge to Customer’s credit card), EL Media may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, EL Media will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.

 

5.5 Payment Disputes.

EL Media will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

 

5.6 Taxes.

EL Media's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If EL Media has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, EL Media will invoice Customer and Customer will pay that amount unless Customer provides EL Media with a valid tax exemption certificate authorized by the appropriate taxing authority. EL Media is solely responsible for taxes assessable against it based on its income, property and employees.

 

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Reservation of Rights.

Subject to the limited rights expressly granted hereunder, EL Media, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

6.2 Access to and Use of Content.

Customer has the right to access and use applicable Content subject to the terms of applicable Subscription(s), this Agreement and the Documentation.

 

6.3 License by Customer to EL Media.

Customer grants EL Media, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-EL Media Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for EL Media to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-EL Media Application with a Service, Customer grants EL Media permission to allow the Non-EL Media Application and its provider to access Customer Data and information about Customer’s usage of the Non-EL Media Application as appropriate for the interoperation of that Non-EL Media Application with the Service. Subject to the limited licenses granted herein, EL Media acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-EL Media Application or such program code.

 

6.4 License by Customer to Use Feedback.

Customer grants to EL Media and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of EL Media’s or its Affiliates’ services.

 

6.5 Federal Government End Use Provisions.

EL Media provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

 

7. CONFIDENTIALITY

7.1 Definition of Confidential Information.

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of EL Media includes the Services and Content, and the terms and conditions of this Agreement and all Subscription(s) (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional EL Media services.

 

7.2 Protection of Confidential Information.

As between the parties, each party retains all ownership rights in and to its Confidential Information. EL Media does not store or retain customer data displayed in Solutions by Clarity profiles past 60 days. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Subscription Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, EL Media may disclose the terms of this Agreement and any applicable Subscription Agreement to a contractor or Non-EL Media Application Provider to the extent necessary to perform EL Media’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

 

7.3 Compelled Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

 

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1 Representations.

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

8.2 EL Media Warranties.

EL Media warrants that during an applicable subscription term (a) this Agreement, the Subscription(s) and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) EL Media will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-EL Media Applications” section above, EL Media will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

 

8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

 

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by EL Media.

EL Media will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by EL Media in writing of, a Claim Against Customer, provided Customer (a) promptly gives EL Media written notice of the Claim Against Customer, (b) gives EL Media sole control of the defense and settlement of the Claim Against Customer (except that EL Media may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives EL Media all reasonable assistance, at EL Media’s expense. If EL Media receives information about an infringement or misappropriation claim related to a Service, EL Media may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching EL Media’s warranties under “EL Media Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by EL Media, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Subscription Agreement for which there is no charge; or (IV) a Claim against Customer arises from Content, a Non-EL Media Application or Customer’s breach of this Agreement, the Documentation or applicable Subscription(s).

 

9.2 Indemnification by Customer.

Customer will defend EL Media and its Affiliates against any claim, demand, suit or proceeding made or brought against EL Media by a third party (a) alleging that the combination of a Non-EL Media Application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Subscription Agreement, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Non-EL Media Application provided by Customer(each a “Claim Against EL Media”), and will indemnify EL Media from any damages, attorney fees and costs finally awarded against EL Media as a result of, or for any amounts paid by EL Media under a settlement approved by Customer in writing of, a Claim Against EL Media, provided EL Media (A) promptly gives Customer written notice of the Claim Against EL Media, (B) gives Customer sole control of the defense and settlement of the Claim Against EL Media (except that Customer may not settle any Claim Against EL Media unless it unconditionally releases EL Media of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against EL Media arises from EL Media’s breach of this Agreement, the Documentation or applicable Subscription(s).

 

9.3 Exclusive Remedy.

This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

 

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

 

10.2 Exclusion of Consequential and Related Damages.

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

11. TERM AND TERMINATION

11.1 Term of Agreement.

This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

 

11.2 Term of Purchased Subscriptions.

The term of each subscription shall be as specified in the applicable Subscription Agreement. Except as otherwise specified in an Subscription Agreement, subscriptions will automatically renew for additional one year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Subscription Agreement, renewal of promotional or one-time priced subscriptions will be at EL Media’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

 

11.3 Termination.

You are solely responsible for properly canceling your account through the Website. An email to Contact.Us@SolutionsByClarity.com with Cancel in the subject line and your company name is considered cancellation. All of your User Content will be immediately deleted from your account and the Services upon cancellation. This information cannot be recovered once your account is canceled. If you cancel the Services before the end of your current paid-up cycle (quarterly or annual), your cancellation will take effect immediately and you will not be charged again. Solutions by Clarity, in its sole discretion, has the right to suspend or terminate your account and refuse any current or future use of the Services for any reason at any time. Such termination of the Services will result in the deactivation or deletion of your account or your access to your account and the forfeiture and relinquishment of all User Content in your account. Solutions by Clarity reserves the right to refuse service to anyone for any reason at any time

 

11.4 Payment, Refunds, Upgrading and Downgrading Terms

A valid credit card is required for paying accounts. The Services are billed in advance on a quarterly or annual basis (chosen by the user) and are non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. For any upgrade or downgrade in plan level, the credit card that you provided will automatically be charged the new rate on your next billing cycle. Downgrading your Services may cause the loss of Content, features, or capacity of your Account. Solutions by Clarity does not accept any liability for such loss.

 

11.5 Modifications to the Solutions by Clarity App and Prices

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Solutions by Clarity App (or any part thereof) with or without notice. However, we will make our very best efforts to notify customers of any upcoming system maintenance and/or service disruptions. Prices of all Solutions by Clarity plans, discounts, and grandfathered feature access are subject to change. If Solutions by Clarity does, for any reason, have to remove or modify the plan you are on or require an upgrade to a current plan, we will provide you with at least thirty (30) days notice via email. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Solutions by Clarity App.