Cleary Technologies, Inc. Terms of Service

Effective Date: August 10, 2020

These Terms of Service (the “Terms”) and our Privacy Policy set forth the rights and responsibilities of customers that use the employee experience products and platform (collectively, the “Services”) made available by Cleary Technologies, Inc. (“Cleary”, “we,” “our” or “us”).  Please read these Terms carefully. If you do not agree to these Terms, please do not use the Services.  If you are using the Services on behalf of an organization (such as your employer), you are agreeing to be bound to these Terms as a customer on behalf of that organization, and you represent and warrant that you have the authority to agree to these Terms on the organization’s behalf. In that case, “you” or “your” will refer to that organization in these Terms.

CUSTOMER ACCOUNT AND USERS

If you invite Authorized Users (as defined below) to access and use the Services set up by you, for example, an employee of your organization, you agree to require that all such Authorized Users abide by these Terms and the AUP (as defined below) which will govern their use of the Services and that you will be responsible for their compliance with these Terms. You further represent and warrant that all Authorized Users will be of legal age and the intended recipient of your invitation to the Services.

Before using the Services, you will need to create an account, either by way of our registration process or through a third party service such as Google. If you register by way of a third party service, Personal Information (as defined below) you provided to that third party, such as your name, email address and other information your account and privacy settings on that service allow us to access, will be used to create your account with us.

Under your customer account, you will have the ability to designate an administrative user (“Administrative User(s)”) who will be able to provision users with access to the Services (“Authorized User(s)”) (Administrative Users and Authorized Users will be referred to collectively in these Terms as “User(s)”). Administrative Users may also have rights to deprovision access to the Services, enable or disable third-party integrations, manage permissions and manage data retention and export settings (collectively, “Customer Data”). 

You can remove your Customer Data by deleting it. However, in certain instances, some of your content may not be completely removed (when your data is shared with a third party, for example). We are not responsible or liable for the removal or deletion of any of your Customer Data, or the failure to remove or delete Customer Data. Following termination or expiration of your subscription, we will have no obligation to maintain or provide any Customer Data, and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.

COMPLIANCE

You may only use the Services in compliance with applicable federal, state, local and international laws, rules and regulations and our Acceptable Use Policy (“AUP”). You agree that we have the right to investigate violations of these Terms and may also consult and cooperate with law enforcement authorities to prosecute customers or Users who violate the law. 

You are solely responsible for your Customer Data and agree that you own or have the necessary rights, permissions and consents to all of your Customer Data and that use of the Customer Data does not infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law, rule or regulation. You and your licensors will own all of your Customer Data. You agree and agree on behalf of Users to grant us a worldwide, non-exclusive license to access, use, export, process, copy, distribute, perform and display the Customer Data, to provide, maintain and support the Services, to prevent or respond to security issues, to provide support or respond to technical issues, as required by law, as permitted by these Terms and as permitted  by your instructions. 

You are responsible for safeguarding your account login credentials. You are also responsible for all of the activity within your account, including the activity of all Users, whether or not you authorized that activity. We will not be responsible for any damages, losses or liability if credentials or any account is not kept confidential by you or Users, or information is provided by an unauthorized third party logging into and accessing the Services. You should immediately notify us of any unauthorized access to or use of your account. We may review activity in connection with the Services for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any Customer Data or the way you or your users use the Services to transmit, store or process any Customer Data. If we believe, however, that there is a violation of these Terms, we may suspend the Services or take any steps that we determine necessary, including with respect to Customer Data, if we believe there is or may be a violation of any laws, rules or regulations or a risk of harm to us, the Services, Users, or any third party.

We may use our employees or contractors or those of our affiliates, or independent contractors, to perform our obligations under these Terms and to provide the Services, and we agree to remain responsible for their compliance with our obligations under these Terms.

SUBSCRIPTION TO THE SERVICES

A subscription allows a customer to use the Services. A subscription may be made available via an order form or via account sign-up and it may be for a fee or made available at no fee. A subscription may be time-based or based upon the number of Users. Subscriptions will begin on the date the Services are made available to you and end at the expiration of the designated subscription term or earlier, as described in these Terms (“Subscription Term”). 

Please note that if any Services are provided for free, whether a trial subscription or ‘freemium’ subscription, we reserve the right to make renewal subscriptions, updates, upgrades, new versions, or other products that incorporate those Services (collectively, “Future Products”) available for a fee, and we will have no obligation to provide Future Products to you for free. Future Products may also be subject to separate standard fee-based subscription agreements for such Future Products. You acknowledge that you are responsible for all fees and expenses related to accessing or using the Services including internet service provider fees.

TERMINATION OF YOUR SUBSCRIPTION

You may cancel your subscription at any time with thirty (30) days written notice to us, provided, however, that you will remain responsible for payment of the entire Subscription Term. Fees are non-refundable and non-cancelable based on the Subscription Term that you ordered and not actual usage. Your Subscription Term will automatically renew for an additional Subscription Term equal in length to the original Subscription Term. We may terminate your subscription without cause at the end of any Subscription Term (including any renewal), but in that case, we will provide you with thirty (30) days prior notice.

Each of us may terminate any subscription with notice to the other if the other materially breaches these Terms and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Upon any termination for cause by you, we will refund prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. Upon any termination for cause by us, you will pay any unpaid fees covering the remainder of then-current Subscription Term after the effective date of termination. In no event will any termination,  however, relieve you from paying fees due and payable to us for any period of the then-current Subscription Term prior to the effective date of termination.

PAYMENT 

If you purchase a subscription via credit card, debit card or other payment card (“Payment Card”), you authorize us (or our designee or third party service provider) to automatically charge your Payment Card fees. You acknowledge that certain Payment Cards may charge you transaction fees or other charges. If your payment is not successfully settled for any reason, you remain responsible and liable for any amounts not remitted to us. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection). We may also suspend or terminate any subscription for any late payment. You will be responsible for all taxes associated with Services other than U.S. taxes based on our net income.

FEEDBACK

We welcome your feedback. If you or any Users provide recommendations, suggestions, improvements or other feedback (collectively, “Feedback”), you agree that we will have a license and royalty-fee free, worldwide perpetual and irrevocable right to use and incorporate such Feedback into the Services without restriction and without any obligation or compensation to you or any Users.

THIRD PARTY PRODUCTS AND SERVICES

We may provide you with the right to integrate the Services with third party products or services. Your use of those Services will be subject to the terms and conditions of such third parties, and you agree that you are integrating those products and services at your own risk. We do not provide any warranty or support for these products and services. Customer Data, in some cases, may also be shared with the third party provider and used in connection with your access to those products and services. As such, we will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, any third party products or services.

OWNERSHIP 

We and our licensors own all right, title and interest in and to the Services including all related intellectual property rights. All of our rights not expressly granted by us to you pursuant to these Terms are retained by us.

DISCLAIMERS

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ALL RELATED PRODUCTS AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE DO NOT WARRANT THAT THE SERVICES WILL PRODUCE ANY RESULTS, OR BE UNINTERRUPTED, RELIABLE, TIMELY, SECURE, OR ERROR-FREE.

LIMITATION OF LIABILITY

IN NO EVENT WILL OUR OR OUR LICENSORS OR SUPPLIERS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, USE OF THE SERVICES BY YOU OR ANY USER, OR ANY SUBSCRIPTION (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE)) EXCEED THE TOTAL AMOUNT PAID BY YOU FOR YOUR SUBSCRIPTION IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THESE TERMS.

IN NO EVENT WILL WE OR OUR LICENSORS OR SUPPLIERS’ HAVE ANY LIABILITY TO YOU, ANY USERS OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILTY SECTION ALLOCATES THE RISKS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

INDEMNITY

You will defend us and our affiliates and our respective employees, partners, officers, directors, agents, successors and assigns (collectively, the “Indemnified Party(ies)”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to your or any Users’ violation of the these Terms or the AUP (“Claim(s)”), and will indemnify the Indemnified Parties for all reasonable attorneys’ fees incurred and damages and other costs finally awarded against any Indemnified Party in connection with or as a result of, and for amounts paid by an Indemnified Party under a settlement you approve in connection with, a Claim. We agree to provide you with notice of any Claim and allow you the right to assume the exclusive defense and control, and cooperate with any reasonable requests in assisting your defense and settlement of such Claim. Notwithstanding the foregoing, any Indemnified Parties may choose its own counsel if it pays for the cost of such counsel and you shall not enter into any settlement without the express written consent of the applicable Indemnified Party (such consent not to be unreasonably withheld).

CONFIDENTIALITY

We both acknowledge that during the course of the transactions contemplated by these Terms, one of the parties (the “Disclosing Party”) may find it necessary or appropriate to share Confidential Information (as defined below) with the other Party (the “Receiving Party”). The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any third party, other than its employees and consultants who have a “need to know” for the receiving party to exercise its rights or perform its obligations hereunder; and (iii) use at least reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by law to make any disclosure of such Confidential Information, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Information will not be deemed Confidential Information hereunder if such information: (1) is known or becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party prior to receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (2) becomes publicly known, except through a breach hereof by the Receiving Party; or (3) is independently developed by the Receiving Party without any use of or reference to the Disclosing Party’s Confidential Information.

Confidential Information” means any information provided by one party to the other and concerning such Disclosing Party’s business or operations including, but not limited to, all tangible, intangible, visual, electronic, now existing or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, code, and know­how; (d) business information, including operations, planning, marketing interests, and products; and (e) all other information which would, due to the nature of the information disclosed or the circumstances surrounding such disclosure, appear to a reasonable person to be confidential or proprietary.

SURVIVAL

Upon expiration or termination of these Terms, the following sections shall survive: “Compliance,” “Payment,” “Feedback,” “Third Party Products and Services,” “Ownership,” Disclaimers,” “Limitation of Liability,” “Indemnity,” “Confidentiality, “Survival,” “Publicity,” “Governing Law,” and “General.”

PUBLICITY

Unless you tell us otherwise, you grant us the right to use your organization’s name, logo and marks to identify you as a customer on our website and in other marketing materials, and in other public or private communications with our existing or potential customers, subject to any trademark usage guidelines you provide to us from time to time. 

GOVERNING LAW

These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles or the United Nations Convention on the International Sale of Goods. In any action or suit to enforce any right or remedy under these Terms, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees. Each party hereby irrevocably consents to the exclusive jurisdiction and venue in the state and federal courts in San Francisco County, California, in connection with any action or dispute arising between the parties under or in connection with these Terms. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS OR ANY INSTRUMENT ENTERED INTO IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THESE TERMS.

GENERAL

Revisions to the Terms. We may revise the Terms from time to time. The current version of the Terms will be posted on our Terms page, so please check back regularly. By continuing to use the Services after revisions become effective, you are agreeing to the revised Terms. If you do not agree to the revised Terms, please cease use of the Services.

Assignment. You may not assign these Terms or any subscription or any rights hereunder, whether by assignment, transfer or otherwise, without our prior written consent in each instance. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment made in violation of these Terms will be null and void.

Independent Contractor. The parties are independent contractors and neither party an agent, partner, joint venturer, or employee of the other party.  Neither these Terms or any subscription shall be interpreted or construed to (i) create an association, joint venture, partnership, agency, trust, lease of property or similar arrangement or relationship between the parties, or (ii) impose any partnership, agency, fiduciary, trust or similar type of obligation or duty on either party.

No Third Party Beneficiary. No person other than the parties hereto will be entitled to any of the benefits of these Terms or be deemed to acquire any rights hereunder.

Force Majeure. Neither Party shall be liable under these Terms by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, pandemic, or any other cause beyond the reasonable control of such Party; provided, that:  (i) the party affected by such force majeure event, as soon as reasonably practicable after obtaining knowledge of the occurrence of such event, gives the other prompt notice describing the event; (ii) the suspension of or extension of time for performance is of no greater scope and of no longer duration than is required by the force majeure event; and (iii) the party affected by such force majeure event uses all reasonable efforts to mitigate or remedy its inability to perform as soon as reasonably possible.

Waiver. No waiver of any breach of these Terms will (a) be effective unless it is in a writing which is executed by the party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers will be strictly construed. No delay in enforcing any right or remedy as a result of a breach of these Terms will constitute a waiver thereof.

Severability. In the event any one or more of the terms or provisions contained in these Terms or any application thereof will be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, then (i) such term or provision shall be adjusted or limited to the minimum extent necessary to cure such invalidity or unenforceability, and (ii) the validity, legality and enforceability of the remaining provisions of these Terms or any application thereof will not in any way be affected or impaired.

Notices. Except as otherwise set forth herein, all notices under these Terms will be by email or provided by us by way of the Services. All notices to us should be sent to support@gocleary.com. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email, and (b) the same day, in the case of notices provided by us by way of the Services.

Entire Agreement. These Terms set forth the entire and final agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No terms or conditions in you purchase order, or other online or clickthrough terms provided by you, or any other order documentation provided by you will be incorporated into or form any part of these Terms, and all such terms or conditions will be null and void.