ClearSlide, Inc. Pricing Plan Agreement
THIS CLEARSLIDE, INC. PRICING PLAN AGREEMENT (THE “AGREEMENT“) GOVERNS YOUR EVALUATION OF THE SERVICES, AND, IF YOU PURCHASE SERVICES PURSUANT TO A PRICING PLAN, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING OR ELECTRONICALLY ACCEPTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
YOU MAY NOT ACCESS THE SERVICES OR ACCEPT THIS AGREEMENT IF YOU ARE A DIRECT COMPETITOR OF CLEARSLIDE. ADDITIONALLY, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
This Agreement was last updated on May 25, 2018. It is effective between You and ClearSlide as of the date You accept this Agreement, or upon an update of this Agreement by ClearSlide in accordance with the terms set forth herein (the “Effective Date“).
Section 1. Definitions
In addition to terms defined elsewhere in this Agreement, whenever used in this Agreement with the initial letter capitalized, the following terms will have the following specified meanings:
“Activity-Based Features” means elements of the Services for which You will be charged Fees based on Your actual usage (for example, business lead purchases and conference calling minutes). Fees for Activity-Based Features are set forth in the applicable Order Form.
“Add-On Features” means, depending on the Pricing Plan chosen by You, the optional elements of the Services that are available to You that You order pursuant to an Order Form (for example, ClearSlide CRM Connector) or that You elect to use in connection with the Services. Fees for Add-On Features are set forth in the applicable Order Form.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests a party.
“ClearSlide” means ClearSlide, Inc., a Delaware corporation having a place of business at 150 Spear Street, Suite 1500, San Francisco, CA 94105.
“ClearSlide Analytics” means the aggregated and de-identified results, data, and related reports generated by and based upon Your use of the Services and Your Data that may be available to You within the scope of the Pricing Plan chosen.
“Confidential Information” has the meaning ascribed to it in Section 6.1.
“Contract Term” means the subscription period for the Services as specified in an Order Form.
“Documentation” means ClearSlide’s user manuals, help files, or other documentation describing the operation of the Services, accessible via Your account management section on the Website.
“Evaluation Term“, if applicable, means the contractually permitted period for Your evaluation of the Services.
“Feedback” means any suggestions or comments regarding the Services that You provide to ClearSlide.
“Fees” means the amounts payable by You to ClearSlide for User subscriptions based on the Pricing Plan chosen by You, Add-On Features (as applicable), Activity-Based Features, and other agreed upon charges as stated in the applicable Order Form.
“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Laws” means all applicable laws, regulations, statutes, rules, orders, and other requirements of any applicable international, federal, state, or local governmental authority.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, programs, or the like.
“Order Form” means the ordering documents for Your evaluation or purchase of subscriptions to the Services hereunder, including addenda thereto, that are signed or electronically delivered by You and accepted by ClearSlide from time to time. Order Forms shall be deemed incorporated herein by reference.
“Personal Data” has the meaning ascribed to it under the European Union General Data Protection Regulation 2016/679 (“GDPR”). Personal Data is a subset of Your Data (as defined below).
“Pricing Plan” refers to the subscription level chosen by You on an Order Form. Different Pricing Plans shall have different Services associated with them as further described on the Website.
“Services” means the base set of ClearSlide sales engagement products and features associated with the Pricing Plan You have purchased through the execution of an Order Form, that may be accessed via the online platform on the Website, and other designated applications that can be accessed via ClearSlide’s mobile and desktop applications and email plug-ins.
“Taxes” means 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.
“Users” means individuals authorized and identified by You for whom You have purchased subscriptions to the Services or who have been granted access to the Services for evaluation purposes.
“Committed Users” means the number of Users identified in the Order Form for whom You agree to pay subscription Fees during the Contract Term. You are responsible for payment of Fees for all Committed Users for the duration of the Contract Term. “Additional Users” means Users added by You during the Contract Term in excess of the number of Committed Users. You are responsible for payment of Fees for all Additional Users for the duration of their use of the Services. Where “Users” alone is used herein, it shall refer to both Committed Users and Additional Users.
“Website” means the ClearSlide website located at http://www.clearslide.com (or successor location), as may be updated by ClearSlide from time to time.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and any of Your Users and/or Affiliates.
“Your Analytics” means, except for ClearSlide Analytics, the results, data, and related reports generated and based upon Your use of the Services and Your Data that may be available to You within the scope of the Pricing Plan chosen by You.
“Your Data” means all electronic data or information submitted or uploaded by You or Your Users in connection with the Services, including any data or information supplied by You to ClearSlide via Your third-party business applications or services.
Section 2. License, Users, and Order Forms
2.1. Evaluation Term License. During the Evaluation Term, subject to the terms and conditions of this Agreement, any applicable Order Form, and Your payment of applicable Fees, ClearSlide hereby grants to You a nonexclusive, non-transferable, non-sublicensable, revocable, and limited license to: (a) access and use the Services solely for Your evaluation purposes; and (b) use, access, and reproduce the Documentation and ClearSlide Analytics for internal business purposes. Any data that You or Your Users upload or enter into the Services and any of Your Analytics generated during the Evaluation Term will be permanently lost and/or erased within thirty (30) days after the end of the Evaluation Term, unless You elect to purchase Services before the expiration of the Evaluation Term. IF SERVICES ARE NOT PURCHASED BY YOU PRIOR TO SUCH EXPIRATION, CLEARSLIDE WILL HAVE NO LIABILITY OF ANY KIND TO YOU OR ANY THIRD PARTY FOR ANY OF YOUR DATA OR YOUR ANALYTICS ERASED OR DELETED BY CLEARSLIDE AFTER SUCH THIRTY (30) DAY PERIOD.
2.2. Contract Term License. During the Contract Term, subject to the terms and conditions of this Agreement, the applicable Order Form and Your payment of Fees, ClearSlide hereby grants to You a nonexclusive, non-transferable, non-sublicensable, revocable and limited license to: (a) access and use the Services; and (b) use, access, and reproduce the Documentation and ClearSlide Analytics for internal business purposes.
2.3 Users. Unless otherwise specified in the applicable Order Form, Services are purchased as User subscriptions and may be accessed by no more than the specified number of Committed Users in an Order Form (or such other document as ClearSlide may accept in lieu of an Order Form), provided that Additional User subscriptions may be added by You via the Services, pursuant to the terms of, and at the Fees specified for Additional Users in, the Order Form. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned by You via the Services to new Users replacing former Users who no longer require ongoing use of the Services.
Section 3. Additional Obligations
3.1 ClearSlide Obligations. During the Contract Term, ClearSlide will: (a) provide to You support for the Services corresponding to the Pricing Plan chosen by You; and (b) use commercially reasonable efforts to ensure the Services are available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime for the Services (of which ClearSlide will use commercially reasonable efforts to give at least eight (8) hours’ notice via the Services); or (ii) any unavailability of the Services caused by circumstances beyond ClearSlide’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ClearSlide’s employees), or Internet-service-provider failures or delays.
3.2 Your Obligations. You will: (a) be responsible for all Users’ compliance with this Agreement; (b) be solely responsible for the accuracy, quality, integrity, and legality of Your Data and of the means by which You acquired Your Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify ClearSlide promptly of any such unauthorized access or use; (d) be responsible for any third party products or services used or exchanged by You in connection with the Services; (e) be responsible for ensuring that all Your computer systems, technology, or other similar items used in connection with the Services do not interfere with or disrupt the integrity or performance of the Services; and (f) use the Services only in accordance with the Documentation and all applicable Laws, including but not limited to, the CAN-SPAM Act of 2003, the Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Law, and the European Union General Data Protection Regulation 2016/679 (“GDPR”). For the avoidance of doubt, this means that You are the Data Controller and ClearSlide is the Data Processor with respect to all Personal Data of residents of the European Union who are Your customers that are introduced to the Service as a result of Your use, and that You (and not ClearSlide) are responsible for meeting all of the obligations of Data Controllers regarding the collection and use of such Personal Data. Without limiting the generality of the foregoing, You understand and acknowledge that: (i) ClearSlide has no obligation to review Your content or Your Data; (ii) all email recipient addresses supplied for use in connection with the Services are supplied solely by You and ClearSlide has no obligation to “scrub” any message recipient list; and (iii) You are solely responsible for the creation, initiation, and sending of messages via the Services, including, but not limited to, the content, recipients, and timing of such messages. You will not: (1) make the Services available to any third party other than designated Users; (2) make the Services available to Your Affiliates without the express prior written consent of ClearSlide; (3) sell, resell, rent, lease, modify, translate, or create derivative works of the Services; (4) decompile, reverse engineer, or reverse assemble any portion of the Services, or attempt to discover any source code or underlying ideas or algorithms of the Services; (5) access the Services in order to build a competitive product or service, or copy any features, functions, or graphics of the Services; (6) use the Services to store or transmit material in violation of third-party privacy rights; (7) transmit unsolicited commercial or non-commercial email via the Services; (8) use the Services to store or transmit Malicious Code; (9) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (10) attempt to gain unauthorized access to the Services or their related systems or networks; or (11) remove or alter any trademark, logo, copyright, or other proprietary notices associated with the Services or Documentation. The Documentation may include additional restrictions to or limitations on the use of the Services, and You agree to comply with any such restrictions or limitations. ClearSlide reserves the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend Your access to and use of the Services if ClearSlide determines, in its reasonable discretion, that You are violating (or have violated) any of the provisions set forth in this Section 3.2 (each a “Restriction Violation”). ClearSlide shall provide notice of such suspension to You (via the Services or otherwise) and, where practicable, the parties shall thereafter work together in good faith to resolve such Restriction Violation. In the event the Restriction Violation cannot be cured within a reasonable period of time after ClearSlide’s notification, ClearSlide reserves the right to immediately terminate this Agreement and any Order Forms then in effect.
Section 4. Fees and Payment
4.1 Fees. During the Contract Term (or Evaluation Term where applicable), You will be charged Fees for Users and any applicable Add-On Features or Activity-Based Features. Except as otherwise specified herein or in an Order Form: (a) Fees are quoted and payable in United States dollars; (b) User and Add-On Fees are based on Services purchased and not actual usage; and (c) Your obligation to pay all Fees is non-cancelable, and Fees paid are non-refundable. ClearSlide will not increase the Fees during the Contract Term stated in an Order Form. On renewal, Fees will increase by five percent (5%) over the prior year’s Fees. You acknowledge that ClearSlide may, from time to time, add additional features or functionality to the Services that ClearSlide does not make generally available without payment of additional Fees, and that Your access to and use of such additional features and functionality may require payment by You of additional Fees.
4.2 Payment Terms. You will pay Fees via credit card or by other payment type specified in the applicable Order Form. If You are making payments of Fees via credit card, You agree to provide accurate payment information, and hereby authorize ClearSlide to charge such credit card for all Fees set forth in an applicable Order Form for the Contract Term (and any renewal thereof). For payment of Fees by any method other than credit card (for example, check, wire transfer, or ACH), beginning on the start date set forth in an Order Form, ClearSlide shall invoice You for Fees in accordance with the payment frequency stated in the applicable Order Form. You shall pay Fees in accordance with the Order Form. Unless otherwise stated in the applicable Order Form, all payments for which invoices are delivered are due within thirty (30) days after the date of the invoice. If ClearSlide has not received payment of Fees by the applicable due date, then ClearSlide may assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid and/or condition future Contract Term renewals and Order Forms on payment terms shorter than those specified herein. If You have elected to pay Fees via credit card and the credit card is charged back to ClearSlide or if any Fees invoiced to You are not paid within thirty (30) days of the invoice date, ClearSlide may: (i) with respect to chargebacks, cease charging Your credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend Your access to the Services until payment is made; and/or (iv) immediately terminate the applicable Order Form for which Fees were due and/or terminate this Agreement.
4.3 Taxes. You are responsible for paying, and will pay, all applicable Taxes, and will indemnify and hold ClearSlide harmless from any costs associated with the collection or withholding thereof, including penalties and interest. Unless otherwise stated in an Order Form, the Fees listed on an Order Form are not inclusive of any applicable Taxes. For clarity, Your invoices will include Fees and Sales Taxes. If ClearSlide has the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by You unless You provide ClearSlide with a valid Tax exemption certificate authorized by the appropriate taxing authority.
Section 5. Proprietary Rights
5.1 Ownership. As between the parties and subject to the license grants under this Agreement, (a) ClearSlide owns all right, title, and interest in and to the Services, the Documentation, the ClearSlide Analytics, and any and all Intellectual Property Rights embodied therein; and (b) You own all right, title, and interest in and to all Your Data, Your Analytics, and any and all Intellectual Property Rights embodied therein. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by ClearSlide to You under this Agreement, whether by implication, estoppel, or otherwise, except as expressly set forth in this Agreement.
5.2 Feedback. Notwithstanding any terms to the contrary in this Agreement, in the event You provide ClearSlide with Feedback, You hereby grant to ClearSlide an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual, and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed; provided that such Feedback is anonymous and does not include any of Your Confidential Information.
5.3 Federal Government End-Use Provisions. ClearSlide provides the Services, including related software and technology, ultimately for federal government end use solely in accordance with the following: (a) government technical data and software rights related to the Services include only those rights described herein; and (b) if a government agency has a need for rights not conveyed under this Agreement, it must negotiate with ClearSlide to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
Section 6. Confidentiality
6.1 Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or the Receiving Party knows or should know, given the nature of the information and the context under which it was disclosed, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the terms of this Agreement as well as components of the business plans, inventions, product plans, design plans, financial plans, computer programs, know-how, customer information, strategies, marketing plans, technology and technical information, business processes, and other similar information. Without limiting the foregoing, ClearSlide’s Confidential Information includes the Services, the Documentation, and the ClearSlide Analytics. Your Confidential Information includes Your Data and Your Analytics. Confidential Information does not include information that: (a) is in or enters the public domain through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by it independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.2 Compelled Disclosure. Notwithstanding Section 6.1, the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled to do so by Law or in connection with other legal proceedings involving the Disclosing Party, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) so as to permit the Disclosing Party a reasonable opportunity to prevent such 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 such Confidential Information. In the event ClearSlide is obligated to respond to a third-party subpoena or other compulsory legal order or process with respect to any of Your Data, You will promptly reimburse ClearSlide for all reasonable attorneys’ fees, as well as employees’ time and materials, at ClearSlide’s then-current hourly rates, incurred in connection with such response.
6.3 Security of Your Data. ClearSlide shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data. ClearSlide shall not: (a) modify or access Your Data except as necessary to provide the Services, prevent or resolve service or technical problems, or at Your request in connection with customer-support matters; or (b) disclose Your Data except as compelled by Law or other legal proceedings in accordance with Section 6.2, or as expressly permitted in writing by You.
6.5 Statistical Information. Notwithstanding anything to the contrary in this Agreement or elsewhere, ClearSlide may monitor and analyze Your use of the Services and Your Data, and compile statistical and performance information related to the provision and operation of the Services. ClearSlide may make such statistical and performance information publicly available in a de-identified and aggregated manner, provided that such information does not incorporate identifiable Your Data and/or Your Confidential Information. ClearSlide retains all Intellectual Property Rights in such statistical and performance information.
6.6 Security of Passwords. You are solely responsible for all activities that occur in Your or Your Users’ account(s) and for the security of all of Your and Your Users’ passwords. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CLEARSLIDE HAS NO LIABILITY OF ANY KIND (WHETHER BY CONTRACT, TORT OR OTHERWISE) FOR ANY UNAUTHORIZED ACCESS TO YOUR OR YOUR USERS’ ACCOUNTS AS A RESULT OF YOUR OR YOUR USERS’ ACTIONS OR INACTIONS.
Section 7. Representations and Warranties
7.1 ClearSlide Warranties. ClearSlide warrants that: (a) it has the legal power to enter into this Agreement, and doing so will not violate any other agreement to which ClearSlide is a party; (b) the Services shall perform materially in accordance with the Documentation; and (c) the functionality of the Services will not be materially decreased during a Contract Term. Your sole and exclusive remedy for any breach of the foregoing is to terminate the applicable Order Form and/or this Agreement, provided that You first provide ClearSlide with timely written notice of, and a reasonable opportunity to cure, such breach, prior to any such termination.
7.2 Your Warranties. You warrant that: (a) You have the legal power to enter into this Agreement, and doing so will not violate any other agreement to which You are a party; (b) You will not transmit any Malicious Code in connection with the Services; (c) You have the right and authority and have obtained all necessary consents required to use Your Data in connection with the Services; (d) Your Data and other data and content used by You in connection with the Services shall not infringe the Intellectual Property Rights or any other right of any third party; and (e) You will comply with all applicable Laws in Your performance of this Agreement, including, without limitation, Laws relating to: (i) individual privacy or the distribution of email and other one-to-one digital messages (including, without limitation, the CAN-SPAM Act of 2003, the Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Law, and the GDPR, and any rules or regulations adopted under such Laws); (ii) the recording of communications, including, where required, advising all participants in a recorded meeting or event via the Services that the meeting or event is being recorded; and (iii) the use of voice-over IP telephony services.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CLEARSLIDE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CLEARSLIDE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, CLEARSLIDE DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING AN EVALUATION, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND CLEARSLIDE WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR DATA (OR ANY DATA RELATED THERETO). THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Section 8. Indemnity
8.1. Indemnity Claims. You will defend, indemnify, and hold ClearSlide and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened claims, suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) (collectively, “Claims”) arising out of or relating to: (a) Your breach of this Agreement or any representation or warranty made by You herein; (b) Your negligence or willful misconduct; (c) Your Data (including, without limitation, Claims alleging that Your Data violates or misappropriates the Intellectual Property Rights or other rights of any third party); and/or (d) any violation of any Law by You.
8.2. Procedure. With respect to Your indemnity obligations arising pursuant to Section 8.1, ClearSlide shall promptly notify You when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the delay. ClearSlide shall reasonably cooperate with You in the defense of such Claim at ClearSlide’s expense. ClearSlide may participate in the defense at its option and expense; provided that You shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of ClearSlide, including any settlement that includes (a) admission of liability or wrongdoing by ClearSlide; (b) payment of any amounts not covered by Your indemnity obligations; (c) actions that affect ClearSlide’s Intellectual Property Rights, may be made without the express written consent of ClearSlide, which may be withheld in the sole discretion of ClearSlide; and provided further provided that in conducting such defense or settling such claim or action, You shall not disclose or use in an improper or manner not authorized under this Agreement the Confidential Information of ClearSlide without ClearSlide’s prior written consent.
Section 9. Limitations of Liability
9.1. Exclusion of Consequential and Related Damages. IN NO EVENT WILL CLEARSLIDE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF YOUR DATA (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF CLEARSLIDE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU AGREE THAT THE FEES CHARGED BY CLEARSLIDE DO NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY CLEARSLIDE OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
9.2. Limitation of Liability. IN NO EVENT WILL CLEARSLIDE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE FEES PAID BY YOU TO CLEARSLIDE DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO YOU, AND THAT, WERE CLEARSLIDE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SUBSTANTIALLY HIGHER.
Section 10. Term and Termination
10.1. Term of Agreement. If You elect to use the Services for evaluation only, the term of this Agreement will commence on the Effective Date and, unless earlier terminated, will expire following the end of the Evaluation Term. If You purchase Services,the term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue for the duration of any Contract Term set forth in an applicable Order Form. AUTOMATIC RENEWAL. EXCEPT AS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM, ALL CONTRACT TERMS SHALL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS EQUAL IN DURATION TO THE EXPIRING CONTRACT TERM OR ONE YEAR (WHICHEVER IS SHORTER), UNLESS EITHER PARTY GIVES THE OTHER NOTICE OF NON-RENEWAL AT LEAST NINETY (90) DAYS BEFORE THE END OF THE RELEVANT CONTRACT TERM.
10.2 Termination. Either party may terminate this Agreement or any individual Order Form: (a) for cause if the other party breaches this Agreement or an Order Form and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver, or similar authority; or (c) in the case of ClearSlide, immediately if You do not pay the Fees when due as described in Section 4.
10.3 Transition of Your Data. Except as otherwise provided in Section 2.1 with respect to Your Data following the termination of an Evaluation Period, for a period of sixty (60) days following termination or expiration of this Agreement, You may retrieve Your Data from the Services. Any additional post-termination assistance from ClearSlide is subject to the mutual agreement of the parties, including Your acceptance of any reasonable fees and terms ClearSlide specifies for such assistance. Except as otherwise provided in Section 2.1 with respect to Your Data following the termination of an Evaluation Period, after sixty (60) days following termination or expiration of this Agreement, unless prohibited by applicable Laws, ClearSlide may delete or erase any and all of Your Data; provided, however, that, unless prohibited by applicable Laws, ClearSlide shall promptly delete or erase Your Data upon receipt of Your written request. Except as provided in Section 2.1 or this Section 10.3, ClearSlide shall have no obligation to continue to store or permit You to retrieve any of Your Data following termination of this Agreement.
10.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Your right to use the Services shall cease, and ClearSlide shall have no further obligation to make the Services available to You; (b) except as otherwise expressly stated herein, all rights and licenses granted to You under this Agreement will immediately cease; (c) except as provided in Section 10.3, ClearSlide will have no obligation with respect to any of Your Data; and (d) You will pay any unpaid Fees payable for the remainder of the Contract Term under any applicable Order Form in effect prior to the termination date.
10.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.1 (Evaluation Term License, for the duration of any transition to a Contract Term), 4 (Fees and Payment), 5 (Proprietary Rights), 6.1 (Confidential Information), 6.2 (Compelled Disclosure), 6.4 (Privacy), 6.5 (Statistical Information), 7 (Representations and Warranties), 8 (Indemnity), 9 (Limitations of Liability) 10.3 (Transition of Your Data, for the duration therein), 10.5 (Survival) and 12 (Miscellaneous).
Section 11. Publicity; Branded Domains
11.1 Publicity. You hereby agree that ClearSlide may reference You and Your use of the Services in private customer and prospect communications, and on the Website. You also agree that ClearSlide may reference You and Your use of Services in marketing and public relations materials, including a press release announcing You as a customer, inclusion of You as a customer in ClearSlide’s company boilerplate, and, subject to the mutual agreement of the parties, a case study describing Your use of the Services. You hereby grant ClearSlide a nonexclusive, worldwide license, during the Contract Term, to use and display Your trademarks, trade names, and logos in connection with the foregoing uses.
11.2 Branded Domains. During the Contract Term, if Your chosen Pricing Plan has the option available, You may request that ClearSlide register certain domain names on Your behalf which contain Your trademarks or trade names for Your use in connection with the Services. In such an event, You hereby grant ClearSlide a nonexclusive, worldwide license, during the Contract Term, to register and use any of Your trademarks or trade names as they appear in such domain names, solely in connection with ClearSlide’s provision of the Services as authorized by this Agreement. ClearSlide shall transfer any domain name registered pursuant to this Agreement to You at Your written request.
11.3 Reservation of Rights. Subject to the licenses granted in this Section, You retain all right, title, and interest in and to Your trademarks, trade names, logos, and any domain name registered in connection with Section 11.2.
Section 12. Miscellaneous
12.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition, or restriction.
12.2 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent by confirmed email or confirmed facsimile (except that neither email nor facsimile shall be deemed sufficient for notices of breach, termination, cancellation, non-renewal, or an indemnifiable claim); or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:
(i) In Your case, to the e-mail address, mail address, and/or facsimile contact information set forth within Your ClearSlide account.
(ii) In the case of ClearSlide, to ClearSlide, Inc., Attn: Legal Department, 150 Spear Street, Suite 1500, San Francisco, California, 94105, U.S.A. Email:email@example.com.
12.3 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles. The parties irrevocably consent to the jurisdiction of the state and federal courts in San Francisco County, California for the resolution of any disputes or conflicts arising out of or related to this Agreement.
12.4 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You, by operation of law or otherwise, without the prior written consent of ClearSlide. This Agreement may be assigned or transferred by ClearSlide without consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors, and permitted assigns.
12.5 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner, or partner of the other party. The relationship between the parties will solely be that of independent contractors.
12.6 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner which ensures that all transactions contemplated hereby are fulfilled.
12.7 No Waiver. No failure or delay (in whole or in part) of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.8. DMCA and Intellectual Property Rights Policy. If You believe that material on the Website or located on or sent via a ClearSlide product infringes Your copyright or other Intellectual Property Right (for example, trademark rights), You may send us a written notice. ClearSlide will attempt to remove or disable the allegedly infringing material. ClearSlide will also attempt to notify the user who posted or uploaded the allegedly infringing material. Your written notice shall contain the following details:
(a) Your name, mailing address, telephone number, and email address;
(b) Sufficient detail about the allegedly infringing material, including the Intellectual Property Right You allege is being infringed;
(c) The URL or other specific location on our Website or product that contains the material that You claim infringes Your Intellectual Property Right;
(d) A statement by You that You have a good faith belief that the disputed use is not authorized by the Intellectual Property Right owner, its agent, or the law;
(e) A statement by You that the information contained in Your notice is accurate and that You attest under the penalty of perjury that You are the owner of the Intellectual Property Right or that You are authorized to act on the such owner’s behalf; and
(f) An electronic or physical signature of the owner of the Intellectual Property Right or a person authorized to act on the owner’s behalf.
Your notice can be sent to our registered copyright agent at the following: (i) ClearSlide, Inc., 150 Spear Street, Suite 1500, San Francisco, California 94105, Attn: Legal Department DMCA Complaint; (ii) via email to firstname.lastname@example.org (include “DMCA Complaint” in the subject line); or (iii) via facsimile to (415) 373-4577 (include “DMCA Complaint” on the cover sheet). Upon receipt of proper written notice, ClearSlide will expeditiously remove or disable the allegedly infringing material, regardless of the nature of the material (a post, a webpage, or presentation slide, for example). ClearSlide will document those alleged infringements on which we act. ClearSlide will additionally notify the user and, if requested, provide the report to the user.
12.9. Entire Agreement; Updates and Revisions; Counterparts. This Agreement, together with each Order Form, constitute the entire agreement between You and ClearSlide regarding the subject matter hereof, superseding all other agreements between them, whether oral or written. No modification, addition, deletion, or waiver of any rights under this Agreement will be binding on ClearSlide unless signed by a duly authorized representative of ClearSlide. ClearSlide may update or revise this Agreement from time to time in its sole discretion, and ClearSlide recommends that You review this Agreement on a regular basis. The most current version will be posted on the Website. Your continued use of the Services after any update or revision to this Agreement is posted constitutes Your acceptance of the Agreement updates or revisions. Order Forms governed by this Agreement may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail, or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Order Form.