ClarityWerks Subscription Service Agreement
This agreement is between Aspire Technologies, Inc ("Aspire") located in Orlando, FL USA, a Florida Corporation, and the Subscriber ("You"). This subscription agreement governs the free trial and paid subscription service ("Service") of ClarityWerks, provided by Aspire via www.claritywerks.com. Aspire reserves the right to update and modify the Service from time to time.
BY ACCEPTING 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 THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
You may not access the Service if You are a direct competitor of Aspire, or an employee of a direct competitor of Aspire.
This Agreement was last updated on November 19, 2015. It is effective between You and Aspire as of the date of You accepting this Agreement.
1.1 "You" or "Your" means the company or other legal entity for which you are accepting this Agreement.
1.2 "Purchased Service" meaning the Service that has been made available to You after payment has been received for said Service.
1.3 "Your Data" means all content submitted by You to the Purchased Service.
1.4 "We" or "Our" means the Aspire Technologies, Inc ("Aspire").
1.5 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.6 "User Manual" means the ClarityWerks User Manual for the Service.
1.7 "Users" means individuals who are authorized by You to use the Service, for whom subscription licensees have been purchased.
2. Free Trial. Aspire will make the Service available to You on a trial basis free of charge until the expiration date of the trial period, or the start date of any Purchased Service ordered by You. ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CUSTOMIZATIONS MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 7 (WARRANTIES), DURING THE FREE TRIAL THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
3. PURCHASED SERVICE.
3.1. Provision of Purchased Service. Aspire shall make the Purchased Service available to You pursuant to this Agreement.
3.2. Licensing Requirements. Purchased Service is purchased based on a per day reserved concurrent licensing model. Under this model, when a particular user accesses the Service, a license will be used and reserved for that user for the remainder of that day until midnight local time. The Service may not be accessed by more users than allowed for through the Purchased Service licensing model.
4.1 Our Responsibilities. Aspire shall: (i) provide to You basic support for the Purchased Service at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Aspire shall give at least 8 hours notice via the Purchased Service and which Aspire shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 5:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, hurricanes, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Service only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. You shall (i) be responsible for fulfilling your payment obligations. (ii) be responsible for Users' compliance with this Agreement, (iii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, and (v) use the Service only in accordance with the User Manual and applicable laws and government regulations. You shall not (a) make the Service available to anyone other than Users, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks.
4.3. Usage Limitations. Service may be subject to other limitations, such as, but not limited to, limits on disk storage space, the bandwidth consumed, and number of SMS messages sent.
4.4. Consent to Use of Data. You agree that Aspire may collect, maintain, process and use diagnostic, technical and related information, related to the usage and operation of the Service including but not limited to information about your computer (including an Internet Protocol Address and hardware identification), operating system, and application software that is gathered periodically to facilitate the provision the Service and any other services to You (if any) related to the Service, and to verify compliance with the terms of this Agreement.
4.5. Aggregate Statistics. You agree that from time to time Aspire may publish aggregate statistics related to our customers usage of the service including but not limited to the number and type of transactions posted and the aggregate monetary amount of these transactions. These aggregate statistics do not include personally identifiable information of any individual customer.
4.6. Advertising. We have the right to include your name as a user of our products and services. However, neither party shall use any logo or trademark owned by the other party unless pre-approved in writing by one of its officers.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Aspire reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. Restrictions. You shall not (i) permit any third party to access the Service, (ii) reverse engineer the Service.
5.3. Ownership of Your Data. As between Aspire and You, You exclusively own all rights, title and interest in and to all of Your Data.
5.4. Suggestions. Aspire shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Service.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data. However, Confidential Information (other than Your Data) 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) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall 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.
6.3. Protection of Your Data. Without limiting the above, Aspire shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Aspire shall not access Your Data except to provide the Service or prevent or address service or technical problems, or at Your request in connection with customer support matters.
7. Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Aspire. Aspire shall indemnify and hold You harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of a claim (i) alleging that the use of the Service as permitted hereunder infringes, misappropriates or violates any rights of a third party, or (ii) that, if true, would constitute a breach by Aspire of this Agreement.
8.2. Indemnification by You. You shall indemnify and hold Aspire and Aspire's subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of a claim (i) alleging that Your Data, or Your use of the Service in violation of this Agreement infringe, misappropriate or violate any rights of a third party; or (ii) that, if true, would constitute a breach by You of this Agreement.
9.1. Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS ABOVE, (A) NEITHER YOU NOR ASPIRE SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR ASPIRE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL ASPIRE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID TO ASPIRE BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Service for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
10.2. Term of Paid Subscription. User subscriptions purchased by You commence with the Purchased Service and continue for the subscription term agreed upon.
10.3. Termination. You may terminate this Agreement per the ClarityWerks Cancellation Policy as found on our website www.claritywerks.com
10.4 Suspension of Service. If any amount owing by You under this Agreement for Our service is 5 business days or more days overdue, We will suspend Our Service to You until such amounts are paid in full.
10.5 Termination for Cause. If any amount owing by You under this Agreement for Our service is 30 days or more days overdue, We may, without limiting Our other rights and remedies, terminate this Agreement for such cause.
10.6. Disposition of Your Data. 30 days after the effective date of termination of a Purchased Service subscription, Aspire shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
10.7. Surviving Provisions. Section 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.6 (Disposition of Your Data), 11 (Governing Law) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. GOVERNING LAW
11.1 Injunctive Relief. Both parties acknowledge that it is impossible to measure fully, in money, the injury that will be caused to a party in the event of a breach or threatened breach of any of the provisions of this Agreement and both parties waive the claim or defense that it has an adequate remedy at law. In any action or proceeding to enforce the provisions of this Agreement, neither party will assert the claim or defense that such a remedy at law exists. Both parties will be entitled to injunctive relief to enforce the provisions of such sections hereof, without prejudice to any other claim that the enforcing party may have at law or in equity.
11.2 Arbitration. Except for actions initiated by either party for injunctive relief pursuant to the Injunctive Relief section of this Agreement, any dispute, controversy or claim arising out of, relating to or in connection with this Agreement or the performance or nonperformance of either party hereto will be submitted to arbitration under the rules and regulations of the American Arbitration Association. The prevailing party will be entitled to recover from the other party its costs and fees, including reasonable attorneys' fees. Any arbitration brought hereunder will be held in the state of Florida. The decision and award of the arbitrator will be final and conclusive upon the parties, in lieu of all other legal, equitable or judicial proceedings between them, and no appeal or judicial review of the award or decision of the arbitrator will be taken, but rather any such award or decision may be entered as a judgment and enforced in any court having jurisdiction over the party against whom enforcement is sought.
11.3 Choice of Law/Venue. The validity and interpretation of this Agreement and the rights and obligations of the parties hereunder will be governed by the laws of the State of Florida, notwithstanding any conflict-of-law doctrines of Florida or any other jurisdiction to the contrary. Each of Aspire and You hereby: (a) agrees that any legal proceeding arising out of or relating to this Agreement will be instituted in the United States District Court for the District of Florida, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Orange County, Florida; (b) consents to the personal and exclusive jurisdiction of such court; and (c) waives any objection that it may have to the laying of venue of any such proceeding and any claim or defense of inconvenient forum.
12. GENERAL PROVISIONS
12.1. Headings. The headings of the Sections hereof are for convenience only and will not in any way affect the meaning or interpretation of this Agreement
12.2. Notices. All notices given pursuant to this Agreement shall be in writing and shall be deemed to have been given: (a) on the date that they shall be personally delivered; (b) on the third day following the date that they shall have been sent by registered or certified mail, return receipt requested, postage prepaid, to the party to be notified; (c) on the day following the date that they shall have been sent by internationally recognized overnight courier to the party to be notified. Notices to You shall be addressed to the system administrator as designated by You or at such other address as You may have furnished by notice in the manner herein set forth. Notices to Us shall be addressed to the corporate headquarters of Aspire as specified on our website www.claritywerks.com.
12.3. No Partnership. Nothing in this Agreement will be construed to create a joint venture, partnership, franchise, agency, employment, or any other similar arrangement between Aspire and You.
12.4 Assignment. You may not assign or otherwise transfer any right under this Agreement without Our prior written consent, which may be withheld in Our sole discretion.
12.5 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 Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Service in violation of any U.S. export embargo, prohibition or restriction.
12.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.8. Whole Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes any and all prior understandings, statements, warranties, representations, and agreements, oral and written, relating hereto. Except as otherwise expressly provided herein, this Agreement may only be amended in a writing signed by both parties.