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ClearRisk

Terms Of Service

ClearRisk owns certain software that it has developed and makes commercially available to its customers for use as a cloud based, managed software as a service offering. 

In connection with the use of the ClearRisk Service (as defined below) you and/or your organization or corporation (“Client”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).

BY ACCEPTING THE TERMS OF SERVICE BY SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, CLIENT ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. 

IF, AFTER READING THE TERMS OF SERVICE, CLIENT DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, CLIENT SHALL NOT USE, OR ACCESS THE SERVICE.

IF YOU ARE AN AGENT OR EMPLOYEE OF CLIENT THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF AND TO BIND CLIENT, AND (II) CLIENT HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.

PLEASE NOTE THAT THESE TERMS OF SERVICE CONTAIN COUNTRY-SPECIFIC TERMS THAT MAY APPLY TO CLIENT.

1. Interpretation

1.1 Definitions.

  1. “Agreement” means these Terms of Service and the Order Form.
  2. “ClearRisk” means ClearRisk Inc. if Client is located in Canada, or ClearRisk US Corp. if Client is located in the United States.
  3. “Business Day” means any day other than Saturday, Sunday or a day that is a statutory holiday as observed by the City of St. John’s, in the Province of Newfoundland and Labrador.
  4. “ClearRisk Service” means ClearRisk’s proprietary online, web-based risk management solutions, for which Client is granted rights of access and use in accordance with this Agreement, including offline or mobile components or applications as described in the Documentation and any other ancillary services available in connection therewith, as the ClearRisk Service may be updated from time to time by ClearRisk in its sole discretion.
  5. “Client” means the entity described above and defined as the Client.  
  6. “Client Data” means electronic data and information submitted by or for Client to the ClearRisk Service.
  7. “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada and the United States (including the Personal Information Protection and Electronic Documents Act (Canada), the Canadian Anti-Spam Legislation and the California Consumer Privacy Act), applicable to the Processing of Personal Information under the Agreement.
  8. “Documentation” means the user documentation for the ClearRisk Service found within Client’s ClearRisk Service instance and its usage guides and policies, as updated from time to time, accessible via the ClearRisk Service.
  9. “Fees” mean Subscription Fees, and Professional Services Fees, as applicable. 
  10. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. 
  11. “Order Form” means a document executed by ClearRisk and Client in respect to Client’s purchases of Subscriptions, Support Services, and/or Professional Services from ClearRisk.
  12. “Party” means ClearRisk or Client and “Parties” means ClearRisk and Client. 
  13. “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
  14. “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
  15. “Professional Services” means the implementation, training and other services provided by ClearRisk pursuant to a Statement of Work.
  16. “Professional Services Fees” means the fees for Professional Services set forth in the applicable Statement of Work. 
  17. “Salesforce Platform” means the SFDC proprietary online, web-based platform service described in the SFDC Service Agreement.
  18. “SFDC” means Salesforce.com, Inc.
  19. “SFDC Service Agreement” means the Salesforce.com, Inc. service agreement located at https://www.clearrisk.com/SFDCSA and which governs Client’s use of the ClearRisk Service on the Salesforce Platform.
  20. “Statement of Work” means a statement of work for Professional Services entered into by ClearRisk and Client which refers to this Agreement. 
  21. “Subscription Fee” means the fee payable by Client as set out in the Order Form. 
  22. “Support Services” means the technical support services for the ClearRisk Service provided by ClearRisk in accordance with Section 3.4 hereof.
  23. “User” means an individual who is authorized by Client to use the ClearRisk Service or for whom the ClearRisk Service has been provisioned, and to whom Client has supplied a user identification and password. Users may include, for example, employees, consultants, contractors and agents of Client. 

2. Term

2.1 Term. This Agreement commences on the date of the initial Order Form (the “Initial Term”) and shall continue until terminated earlier in accordance with the provisions of this Agreement or applicable law. This Agreement shall remain in effect and govern all Order Forms until (i) the end of the Term (as defined below) under such Order Form, (ii) such Order Form is terminated by the Parties, or (iii) there has been full performance of the Parties’ respective obligations under such Order Form.

2.2 Fee Changes. At the end of the Initial Term of this Agreement and any subsequent renewal (the “Renewal Term” and, collectively with the Initial Term, the “Term”), ClearRisk may adjust the Subscription Fees payable under this Agreement by providing Client written notice of such adjustment at least sixty (60) days prior to the beginning of the Renewal Term.

3. The ClearRisk Service

3.1 Grant of Right to Use the ClearRisk Service. Subject to the terms and conditions of this Agreement and payment of the applicable Fees, ClearRisk hereby grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable right to (a) access and use (and to permit Users to access and use) the ClearRisk Service, solely during the Term; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Client’s permitted use of the ClearRisk Service during the Term. 

3.2 SFDC Service Agreement. Client acknowledges that the ClearRisk Service is provided on the Salesforce Platform and hereby agrees that the terms and conditions set forth in the SFDC Service Agreement are hereby incorporated by reference and form part of this Agreement and Client hereby agrees to be bound by the SFDC Service Agreement. Client acknowledges and agrees that the terms set out in the SFDC Service Agreement are imposed upon ClearRisk by SFDC and a breach by Client of the terms and conditions set forth therein constitutes a material breach of this Agreement and could impact and/or prevent Client from being able to access and use the ClearRisk Service.

3.3 Restrictions. Client shall not (and shall not allow Users or any third party to): (a) possess, download or copy the ClearRisk Service or any part of the ClearRisk Service, including but not limited any component which comprises the ClearRisk Service, but not including any output from the ClearRisk Service; (b) knowingly interfere with service to any of ClearRisk’s customers, users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the ClearRisk Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the ClearRisk Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the ClearRisk Service or Documentation in any form to any person without the written consent of ClearRisk; (f) remove any proprietary notices, labels, or marks from the ClearRisk Service or Documentation; (g) create any “links” to or “frame” or “mirror” of the ClearRisk Service or any portion thereof; or (h) use the ClearRisk Service in violation of applicable laws.

3.4 Support. During the Term, ClearRisk, or its authorized support partner, will provide Support Services as outlined in the Order Form . Support Services will include: (a) telephone support from 9:00 am to 5:00 pm (ET) on Business Days and any calls received outside of such hours are handled on a reasonable efforts and as available basis; (b) email support is monitored and provided from 8:00 am to 5:00 pm (ET) on Business Days and emails outside of these hours will be responded to on a reasonable efforts basis; and (c) ClearRisk will use commercially reasonable efforts to respond to support enquiries within one (1) Business Day. Client will have access to ClearRisk’s technical support web site and may use the web site to submit service requests. ClearRisk shall not be required to provide Support Services if Client is in default of any of its material obligations under this Agreement.

3.5 Professional Services. If agreed to in a Statement of Work, ClearRisk, or its authorized services partner, will provide Professional Services on a time and materials basis for the Professional Services Fees set forth in the Order Form and in accordance with the terms and conditions in the applicable Statement of Work. 

4. Client Data and Personal Information

4.1 Ownership. As between ClearRisk and Client, Client exclusively owns all rights, title and interest in and to all Client Data. ClearRisk does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Client Data.

4.2 Technical and Organizational Safeguards. In connection with the provision of the ClearRisk Service, ClearRisk will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by ClearRisk personnel except (a) to provide the ClearRisk Service and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 9.4 below and upon identification of lawful authority, or (c) as expressly permitted in writing by Client. ClearRisk shall not access Client Data except to provide the ClearRisk Service and prevent or address service or technical problems, or at Client’s request in connection with customer support matters.

4.3 Client Data and Portability. Upon request by Client made during the Term or within thirty (30) days after the effective date of termination of this Agreement, ClearRisk will make the Client Data available to Client for export or download as provided in the Documentation. After such 30-day period, ClearRisk will have no obligation to maintain or provide any Client Data, and will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited. Data extracts during the Term will incur a fee provided once request has been scoped. 

4.4 Personal Information. To the extent that Client Data from Canada or the United States is Processed by ClearRisk and Client Data includes Personal Information: 

  1. ClearRisk’s Processing of Personal Information. ClearRisk shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. ClearRisk shall only Process Personal Information in accordance Data Protection Laws and only for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Client’s Users or customers in their use of the ClearRisk Service; and (iii) Processing to comply with other documented reasonable instructions provided by Client where such instructions are consistent with the terms of the Agreement. 
  2. Client’s Obligations. Client’s instructions to ClearRisk for the Processing of Personal Information shall comply with Data Protection Laws. Client shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Client acquired Personal Information. Client hereby represents and warrants to, and covenants with ClearRisk that Client Data will only contain Personal Information in respect of which Client has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable Data Protection Laws, to enable ClearRisk to provide the ClearRisk Service, including with respect to the Processing of Personal Information, including by or to ClearRisk and to or from all applicable third parties.
  3. California Consumer Privacy Act (“CCPA”). ClearRisk is a “Service Provider” as such term is defined under Section 1798.140(v) of the CCPA. As such, ClearRisk shall not retain, use or disclose any Personal Information received from Client during the Term for any purpose other than the specific purpose of providing the ClearRisk Service and other related services specified in this Agreement or for such other business purpose as is specified in this Agreement.
  4. ClearRisk Personnel. ClearRisk shall ensure that its personnel engaged in the Processing of Personal Information are informed of the confidential nature of the Personal Information and have received appropriate training on their responsibilities and ClearRisk shall take commercially reasonable steps to ensure the reliability of any ClearRisk personnel engaged in the Processing of Personal Information.
  5. Security Incident. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), ClearRisk will promptly notify Client of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Client, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Client with detailed information about the Security Incident. ClearRisk will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Client in doing so; and will provide prior notice to Client of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Client’s prior written approval, not to be unreasonably withheld, conditioned or delayed. ClearRisk will work with and coordinate with Client on any such notices in any event. Subject to Section 13, ClearRisk will comply with this Section 4.4(e) at ClearRisk’s cost, unless the Security Incident arose from Client’s negligent or willful acts or ClearRisk’s compliance with Client’s express written instructions.
  6. Request for Personal Information. ClearRisk shall (at Client’s expense), taking into account the nature of the Processing, provide all reasonable cooperation to assist Client by appropriate technical and organisational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the Processing of Client Personal Information under this Agreement. In the event that any such request is made to ClearRisk directly, ClearRisk shall not respond to such communication directly without Client’s prior authorization, unless legally compelled to do so. If ClearRisk is required to respond to such a request, ClearRisk shall promptly notify Client and provide it with a copy of the request unless legally prohibited from doing so.

5. Client Responsibilities

5.1 Users. Client is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Client shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data and the means by which Client acquired Client Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the ClearRisk Service, and notify ClearRisk promptly of any such unauthorized access or use; and (c) use the ClearRisk Service only in accordance with the Documentation and applicable laws and government regulations. 

5.2 Equipment. Client is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Client to access and use the ClearRisk Service and for all expenses relating thereto. Client agrees to access and use, and shall ensure that all Users access and use, the ClearRisk Service in accordance with any and all operating instructions or procedures that may be issued by ClearRisk from time to time.

6. Fees and Payment Terms

6.1 Fees. Client agrees to pay the Fees and other charges for the ClearRisk Service and Professional Services provided under this Agreement as specified in the Order Form. Except as otherwise specified herein, payment obligations are non-cancellable, Fees paid are non-refundable,

6.2 Annual Cost Escalation. Client agrees that all Subscription Fees will increase by 5% each and every year at the anniversary date. 

6.3 Taxes. All amounts payable hereunder are exclusive of any and all taxes, and Client is responsible for payment of such taxes (excluding taxes based on ClearRisk’s net income). If Client is located in Canada, all prices are stated, and Client shall pay, in Canadian dollars. If Client is located in the United States, all prices are stated, and Client shall pay, in US dollars.

6.4 Invoicing and Payment. Fees will be invoiced in advance and unless otherwise stated herein, charges are due on the invoice date. 

6.5 Interest on Overdue Amounts. Payment received by ClearRisk after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law.

6.6 Suspension for Non-Payment. ClearRisk may immediately suspend Client’s access to and use of the ClearRisk Service if Client fails to make any payment due in respect of the ClearRisk Service and does not cure such non-payment within ten (10) Business Days after receiving notice of such failure. Any suspension of the rights hereunder by ClearRisk under the preceding sentence shall not excuse Client from its obligation to make all payment(s) under the Agreement.

6.7 Payment Disputes. ClearRisk will not exercise its rights under Section 6.5 (Interest on Overdue Amounts) or 6.6  (Suspension for Non-Payment) above if Client is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

7. Audits

ClearRisk shall have the right, with reasonable notice and during normal business hours, at ClearRisk’s sole expense and in as non-disrupting a manner as reasonably possible, to verify Client’s compliance with Client’s obligations hereunder through a remote or an on-site audit of Client’s records, facilities and licensing processes by ClearRisk or a third party representative of ClearRisk. Client shall permit up to one such audit per year, including once during the 12 month period following the termination of this Agreement for any reason. ClearRisk may use such audit reports solely to enforce its rights hereunder and shall otherwise treat audit reports and any information received in connection with such audits as Confidential Information. In the event that an audit establishes that Client is in material breach of its obligations hereunder, Client shall reimburse ClearRisk for the cost of the audit and shall promptly pay to ClearRisk all outstanding Fees.

8. Intellectual Property 

8.1 The ClearRisk Service. Subject to the limited rights expressly granted hereunder, ClearRisk reserves all rights, title and interest in and to the ClearRisk Service, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth in this Agreement. ClearRisk retains all right, title and interest in and to the ClearRisk Service at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist. Finally, any suggestions, ideas or inventions that Client, its employees or agents, voluntarily and optionally disclose to ClearRisk through any means will be used, or not used, by us at ClearRisk’s sole discretion; and, ClearRisk will have no obligation to Client, its employees and/or agents regarding any ideas or inventions that Client, its employees and/or agent disclose through such means.

8.2 Usage Data. Notwithstanding anything to the contrary in this Agreement, Client acknowledges that the ClearRisk Service may provide Usage Data (as hereinafter defined) to ClearRisk and ClearRisk may monitor Client’s use of the ClearRisk Service and collect and compile aggregated and anonymized data, information, analytics and diagnostic statistics relating to the provision and operation, and Client’s use, of the ClearRisk Service (“Usage Data”). As between ClearRisk and Client, all right, title, and interest in Usage Data, including all intellectual property rights therein, are owned solely by ClearRisk. ClearRisk may use Usage Data to support (including to improve) the ClearRisk Service, develop new products and services, and for any other business purpose, provided that the Usage Data does not contain any Personal Information or other user identifier and is not associated with Client or any User.

8.3 Feedback. Client may provide reasonable feedback to ClearRisk including, but not limited to, suitability, problem reports, suggestions, enhancement request, recommendation, correction, and other information with respect to the operation of the ClearRisk Service (“Feedback”). Client hereby grants to ClearRisk a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the ClearRisk Service, the Documentation and any other ClearRisk products or services, or for any other purposes, any Feedback provided by Client or its Users.

9. Confidentiality

9.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed 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, including the terms and conditions of this Agreement (including pricing), the Service and Documentation, Client Data (which is the Confidential Information of the Client), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

9.2 Confidentiality. Subject to Section 9.4 below, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Client shall not disclose any performance, benchmarking, or feature-related information about the ClearRisk Service.

9.3 Protection.  Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

9.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

9.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.

9.6 Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 9.6.  

10. Warranties and Disclaimers

10.1 Limited Warranties. ClearRisk hereby represents and warrants to Client that:

  1. During the Term the ClearRisk Service will perform materially in accordance with the Documentation therefor; and
  2. the ClearRisk Service will not contain any Malicious Code.

10.2 Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, CLEARRISK PROVIDES CLEARRISK CLAIMS ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLEARRISK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) CLEARRISK CLAIMS; OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CLIENT DATA TRANSMITTED TO OR FROM CLEARRISK CLAIMS. CLEARRISK ALSO DISCLAIMS ALL LIABILITY WITH REGARD TO CLIENT’S VIEWING OF ANY WEB SITES THAT MAY BE LINKED FROM CLEARRISK CLAIMS. CLEARRISK DOES NOT REPRESENT OR WARRANT THAT CLEARRISK CLAIMS WILL MEET ANY OR ALL OF CLIENT’S PARTICULAR REQUIREMENTS, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF CLEARRISK CLAIMS WILL BE RELIABLE, THE QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE OF CLEARRISK CLAIMS WILL MEET CLIENT’S EXPECTATIONS OR THAT CLEARRISK CLAIMS WILL OPERATE ERROR-FREE OR UNINTERRUPTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. 

11. Intellectual Property Infringement Indemnification 

11.1 Indemnification by ClearRisk. Subject to this Agreement, ClearRisk shall defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Client by a third party alleging that the use of the Service and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Client (a) promptly gives written notice of the Infringement Claim to ClearRisk; (b) gives ClearRisk sole control of the defense and settlement of the Infringement Claim (provided that ClearRisk may not settle or defend any Infringement Claim unless it unconditionally releases Client of all liability); and (c) provides to ClearRisk, at ClearRisk’s cost, all reasonable assistance and information.

11.2 Other Remedies. In addition to the indemnity contained in Section 11.1, if (a) ClearRisk becomes aware of an actual or potential Infringement Claim, or (b) Client provides ClearRisk with notice of an actual or potential Infringement Claim, ClearRisk may (or in the case of an injunction against Client, shall), at ClearRisk’s sole option and determination: (i) procure for Client the right to continue to use the ClearRisk Service; or (ii) replace or modify the ClearRisk Service with an equivalent or better service so that Client’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by ClearRisk in its sole discretion, terminate the rights granted hereunder to the Client to access and use the ClearRisk Service and refund to Client that portion of any prepaid Subscription Fees that is applicable to the period following the termination of the Agreement pursuant to this Section 11.2, less any outstanding Subscription Fees owed on such affected portion of the ClearRisk Service.

11.3 Exclusions. The indemnity in Section 11.1 does not extend to (a) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the ClearRisk Service with other products, software or services not provided or approved by ClearRisk, if such infringement would have been avoided but for such combination; or (b) any use, distribution or sublicensing in breach of or outside the scope of this Agreement.

11.4 Sole Remedies. THIS SECTION 11 CONTAINS COMPANY’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.

12. Indemnification by Client

Client will defend ClearRisk against any claim, demand, suit or proceeding made or brought against ClearRisk by a third party alleging that Client Data, or Client’s use of the ClearRisk Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim”), and will indemnify ClearRisk from any damages, legal fees and costs finally awarded against ClearRisk as a result of, or for any amounts paid by ClearRisk under a court-approved settlement of, a Claim, provided that ClearRisk (a) promptly gives Client written notice of the Claim, (b) gives Client sole control of the defense and settlement of the Claim (except that Client may not settle any Claim unless it unconditionally releases ClearRisk of all liability), and (c) gives Client all reasonable assistance, at Client’s expense.

13. Limitation of Liability

13.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).

13.2 Limitation of Liability for Direct Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT WILL EITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE LESSER OF (A) $7,500.00, OR (B) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM OR LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.

13.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

13.4 Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a Party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of ClearRisk shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.

14. Insurance

14.1 Coverage. At all times during the Term and for so long as any Order Form has not yet expired or been terminated, ClearRisk shall maintain, at its sole cost and expense, all insurance coverage required by applicable law, and in any event insurance coverage in the following types and amounts:

  1. Commercial General Liability with limits no less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate for claims each policy year, including bodily injury and property damage and products and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of ClearRisk under this Agreement and have a deductible of not more than ten thousand dollars ($10,000.00);
  2. Umbrella Liability that provides additional coverage over primary comprehensive general liability coverage, automobile liability, and employers’ liability limits, in an amount not less than Five Million Dollars ($5,000,000) per occurrence;
  3. Worker’s Compensation and employer’s liability insurance with statutory limits of the minimum amount required by applicable law of the jurisdiction in which the work is performed;
  4. Cyber Liability Insurance, with limits of no less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for claims each policy year;
  5. Professional Liability or Technology Errors and Omissions with no less than One Million Dollars ($1,000,000) per occurrence for coverage for loss or disclosure of electronic data, media and content rights infringement and liability, network security failure and software copyright infringement. 

14.2 Policy Terms. ClearRisk will keep all insurance coverage current and in force during the Term of this Agreement, and such insurance coverage must be (i) written through an insurance carrier with an overall A.M. Best Rating of A or better, and (ii) name Client as an additional insured under the general liability insurance provisions of the policy with respect to liability arising from or out of the ClearRisk Service by Client.

14.3 Cancellation. The insurance policy shall apply as primary insurance and contain an undertaking by the insurers to notify Client in writing not less than 30 days’ prior to any material change, cancellation or termination and that ClearRisk itself will notify Client within 48 hours of receipt of notification by insurers of any cancellation or termination of the insurance policy.

14.4 Certificates of Insurance. Upon the written request of Client, ClearRisk will provide Client with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section, and shall not do anything to invalidate such insurance coverage. ClearRisk shall give 30 days’ prior written notice to Client of any cancellation, non-renewal, or material change in coverage, scope, or amount of any insurance policy required by or affecting the Client’s rights or remedies under this Agreement. 

15. Termination

15.1 Termination. A Party may terminate this Agreement for cause (a) upon 30 days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 

15.2 Effect of Termination. Upon the termination of this Agreement:

  1. by ClearRisk pursuant to Section 15.1(a), such termination shall not prevent ClearRisk from collecting from Client any amounts or payments owing that accrued prior to termination and Client will also be obligated to pay to ClearRisk unpaid Fees covering the remainder of the then-current Term;
  2. by Client pursuant to Section 15.1(a), such termination shall not relieve Client of any obligations that have accrued as of the date of such termination, including, without limitation, any sums or payments then due;
  3. for any reason, each Party shall return to the other Party all copies of the other Party’s Confidential Information in its possession or control.

15.3 Data Provided Upon Termination. Upon the termination of this Agreement for any reason, ClearRisk shall, if requested by Client within 30 days of the effective termination date, backup Client’s Client Data and provide electronic copies of such Client Data through a ClearRisk provided FTP folder to Client. All data will be uniquely identified for efficient processing. Client Data will be provided as follows:

  • Text data in CSV format with appropriate titles and column headers;
  • Notes and file attachments in their native format provided in .zip folder; and
  • Once data is accepted by Client, ClearRisk will delete all data from existing servers and provide confirmation to Client.

After such 30-day period, ClearRisk will have no obligation to maintain or provide any Client Data, and will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited. Once Client Data has been provided to Client as described above, ClearRisk will have no further responsibility to Client.

15.4 Suspension of Access to the ClearRisk Service. In addition to any termination rights of ClearRisk pursuant to this Agreement, extraordinary circumstances may require ClearRisk to suspend or terminate (where appropriate), as determined in ClearRisk’s reasonable discretion, Client’s access to and/or use of, or otherwise modify, the ClearRisk Service in order to: (a) prevent material damages to, or material degradation of the integrity of, ClearRisk’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. ClearRisk will notify Client of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, ClearRisk will limit such suspension to that which is minimally required and will promptly restore Client’s access to the ClearRisk Service as soon as the event giving rise to the suspension has been addressed (including by Client agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Client: (i) all Subscription Fees related to the use of the ClearRisk Service or other suspended services shall be waived for the duration of the suspension and any such waived Subscription Fees which have been pre-paid shall be refunded to Client; and (ii) in the event of a termination in connection with this Section 15.4, Client shall receive a refund of any and all prepaid Subscription Fees applicable to the remainder of the then-current Term.

16. Miscellaneous

16.1 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, epidemics, pandemics or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. Obligations to pay are excused only to the extent that payments are entirely prevented by the Force Majeure Event.

16.2 Further Assurances. The Parties and each of them shall at any time and from time to time do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required so as to accomplish and carry into effect the intentions of this Agreement.

16.3 Waiver of Breach. No delay or omission of either of the Parties to exercise any right or power accruing upon any default or breach under this Agreement shall impair any such right or power or shall be construed to be an acquiescence therein or waiver of any such default or breach or of any right or power accruing upon any such default or breach or any subsequent default or breach under this Agreement.

16.4 Waiver of Term. None of the conditions, covenants or agreements contained in this Agreement may be waived in whole or in part unless such waiver is in writing and signed by the Party in whose favor the representations, warranties, conditions, covenants or agreements so waived operate.

16.5 Publicity and Marketing. Client agrees: (i) to issue a joint press release with ClearRisk (“Press Release”) on a mutually agreed date  announcing that Client has entered into an agreement to use the ClearRisk Service; and (ii) that ClearRisk may disclose that Client is a Client of ClearRisk. Client will have the right to review and approve the Press Release in advance; such approval shall not be unreasonably delayed or withheld. Each Party may include the name and logo of the other Party in lists of clients or vendors in accordance with the other Party’s standard guidelines. ClearRisk may also use Client and/or User testimonials regarding the ClearRisk Service solely for marketing and promoting the ClearRisk Service.

16.6 Assignment and Sublicenses. Client shall not be permitted to assign this Agreement or any of its obligations hereunder without the prior written consent of ClearRisk, which consent may be withheld by ClearRisk in its sole discretion. Client also agrees that it shall not have the right to grant sublicenses under this Agreement without the prior written agreement of ClearRisk. If the Client is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of ClearRisk, then ClearRisk may terminate this Agreement upon written notice. 

16.7 Notice. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) the ClearRisk Service; (b) certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate Party at the address set forth on the Order Form. Each Party hereto expressly consents to service of process by registered mail. Any notice or other document if delivered shall be deemed to have been received by and given to the addressee on the date of delivery, and if given by email shall be deemed to have been received by and given to the addressee on the next Business Day following the day of sending. Any Party may at any time give notice in writing to the others of any change of address for these purposes. In the event of actual or threatened postal interruption in Canada and/or the United States, no such notice shall be deemed to have been received until it has in fact been received by the Party for whom it is intended.

16.8 Email Notifications. From time to time, ClearRisk may use a third party application for data submission and such application provides email notifications to Customer related to Customer’s input of data into the ClearRisk Service. Customer is responsible for ensuring that Customer’s email address is accurate and complete and that such information remains current at all times during the Term. In order to ensure successful delivery of such email notifications, Customer is advised to add IP address 35.169.190.25 hostname infra-mail.formassembly.com or such other domains provided by ClearRisk to Customer’s safe senders list to prevent email messages from being moved to Customer’s junk or spam folder. ClearRisk is not liable for any damages whatsoever caused by or resulting from the unsuccessful delivery of email notifications to Customer as a result of email notifications being directed to spam or junk filters, incorrect email addresses, incorrect email addresses, or other acts or omissions of Customer.

16.9 Governing Law. If Client is located in Canada, this Agreement shall be governed in accordance with the laws of the Province of Newfoundland and Labrador and the laws of Canada applicable therein and each of the Parties hereby irrevocably attorns to the exclusive jurisdiction of the courts of such Province. If client is located in the United States, this Agreement shall be governed in accordance with the laws of the state of Delaware and the federal laws of the United States applicable therein without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the laws of any jurisdiction other than the State of Delaware and each of the Parties hereby irrevocably attorns to the exclusive jurisdiction of the courts of such state. If the Client is located elsewhere, this Agreement shall be governed in accordance with the laws of England and Wales and each of the Parties hereby irrevocably attorns to the exclusive jurisdiction of the courts of England and Wales. The application of the United National Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.

16.10 Severability. The invalidity or unenforceability of any provision or part of any provision of this Agreement shall not affect the validity or enforceability of any other provision or part thereof, and any such invalid or unenforceable provision or part thereof shall be deemed to be separate, severable and distinct, and no provision or part thereof shall be deemed dependent upon any other provision or part thereof unless expressly provided for herein.

16.11 Currency. If Client is located in Canada, all dollar amounts referred to herein refer to lawful money of Canada. If Client is located in the United States, all dollar amounts referred to herein refer to lawful money of the United States of America.

16.12 Enurement. This Agreement and everything contained herein shall enure to the benefit of and are binding upon each of the Parties hereto and their respective successors and permitted assigns. 

16.13 Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, CLEARRISK MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CLIENT PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY CLEARRISK ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CLIENT OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).

16.14 Entire Agreement. This Agreement is the entire agreement between the Parties made to date regarding the subject matter and supersedes any prior agreements or understandings between the Parties relating to its subject matter. No modification or variation of this Agreement shall be effective unless in writing signed by the Parties.