PILOT TERMS OF USE

THESE CLEARSPEED TERMS OF USE (“AGREEMENT“) ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER“) AND CLEARSPEED INC. (“CLEARSPEED“), EACH A “PARTY” AND COLLECTIVELY THE “PARTIES”.  BY EXECUTING AN ORDER FORM THAT INCLUDES THESE TERMS BY REFERENCE OR USING THE CLEARSPEED SERVICES CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED, ACCEPTS AND WILL BE BOUND BY THESE TERMS.  IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND THE TERM “CUSTOMER” REFERS TO THAT ENTITY. CLEARSPEED MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, BUT CUSTOMER WILL BE BOUND BY THE VERSION OF THE TERMS EXISTING AS OF THE DATE A RELEVANT ORDER FORM WAS EXECUTED UNTIL THAT ORDER FORM IS RENEWED.

DEFINITIONS

“Call” means the instance of a Clearspeed Questionnaire that is responded to, in whole or in part, by a Participant, either by telephone or by other method made available by Clearspeed.

“Call Data” means the data collected by Clearspeed during a Call, including, without limitation, the Call Recordings.

“Call Quantity” means the number of Calls permitted under this Agreement as set forth in each Order Form.

“Call Recordings” means the analog and digital recordings made of a Participant’s vocal responses during the course of a Call.

“Clearspeed Intellectual Property” means any and all Clearspeed’s proprietary technology relating to the Services, including, without limitation, the questions and answers administered as part of the Service, the technologies used to implement the Service, the Call Data, and any and all patents, copyrights, trademarks, trade secrets, and other intellectual property rights therein.

“Clearspeed Obligations” means the required conditions and obligations of Clearspeed for conducting the Calls.

“Clearspeed Questionnaire” means a set of questions that are asked on a Call.

“Confidential Information” means all non-public information disclosed by one Party to the other 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. As between the parties, Customer Data shall be Customer Confidential Information. The Service and Clearspeed Intellectual Property shall be Clearspeed Confidential Information.

“Customer Data” means any information about Participants that Customer provides or Clearspeed learns in the course of providing the Service.

“Customer Obligations” means the required conditions for conducting the Calls.

“Documentation” means any documentation related to the Service made available to Customer by Clearspeed.

“Fees” means the fees, use fees and any other fees to be paid by Customer, if any, set forth in each Order Form.

“Participant” means a person designated by a Customer to participate in a Call.

“Pilot Order Form” means an ordering document or online order specifying the pilot Services to be provided hereunder that is entered into between Customer and Clearspeed.

“Pilot Period” means the limited duration period set forth above.

“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, and made available online or offline by Clearspeed.

PILOT SCOPE. Clearspeed will use reasonable commercial efforts to provide the Service to Customer in accordance with these terms and conditions. Unless the Parties agree otherwise, the maximum number of Calls conducted shall be the Call Quantity. All Calls must be conducted during the Pilot Period. As a condition of receiving the Services, Customer shall ensure that the Customer Obligations are met. If there are any Fees, Customer shall pay Clearspeed such Fees within thirty (30) days of receipt of Clearspeed’s invoice. Customer warrants, represents and covenants that it will not reverse engineer the Service or any Clearspeed Intellectual Property and will only use the Service and results of Calls in compliance with applicable law.
3. SECURITY; LEGAL COMPLIANCE

3.1 Security and Privacy. Each Party shall be responsible for compliance with all applicable security and privacy laws in connection with its activities hereunder. In the event that Customer is a Mexican company, subject to the relevant data protection laws in Mexico, in addition to the terms and conditions established herein, the Parties shall execute the data processing agreement attached hereto as “Exhibit A”.

3.2 Statistical dissociated Data. Customer acknowledges, permits, and hereby grants Clearspeed the right to collect and compile and use dissociated data from the Calls (including, without limitation, the questions, answers and results thereof) and the dissociated Customer Data for support purposes, to improve and verify the accuracy of the Services, and for documentation and training purposes; provided, however, that such use will not in any manner identify the Customer or Participants. Customer will also provide Clearspeed and grant the right to use the results (in a de-identified/dissociated form) of subsequent investigations of a similar nature to the Service that Customer performs (itself or through a third party) with Participants, identified by each Participant’s unique ID number which if used by Clearspeed may not identify a relevant Participant, and how those results confirm or conflict with the Service, for the purpose of confirming, verifying and improving the accuracy of the Services in general.

3.3 Legal Compliance. Customer understands and acknowledges that the Service does not draw any conclusion about an Participant and is not predictive of future behavior. Customer further understands that Participants will be the only ones responsible for their answers, including their accuracy, veracity, and adequacy to the Questionnaire. Clearspeed assesses risk relating only to the specific issues raised by the Call questions, and only as of the date on which the Call is administered. The Service is simply a tool to provide Customer with guidance on these issues and is only one factor among many that may be weighed by the Customer in making any determination. It is Customer’s responsibility to interpret the results that Clearspeed provides from the Service and determine how to proceed and what weight to give them. As the particular laws will be different for each customer and for each use-case Clearspeed assumes no liability for Customer’s compliance with such laws.  Customer is obliged to carry out, perform, execute and request any and all legal documents, authorizations, requests which shall be furnish for the Participant to participate in a Call. Customer assumes all liability in relation to the aforementioned action.

CONFIDENTIALITY. Neither Party will: (i) disclose the other Party’s Confidential Information to a third party, including any type of personal data processed in relation to the Services or (ii) use the Confidential Information for any purpose other than as indicated in this Agreement without the disclosing Party’s prior written approval. The receiving Party agrees to notify the disclosing Party promptly of any unauthorized disclosure of Confidential Information and to assist the disclosing Party in remedying any such unauthorized disclosure. Except as set forth herein, each Party will protect the other Party’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the Party uses to protect its own information of similar character. All Confidential Information disclosed hereunder will remain the sole property of the disclosing Party and the receiving Party will have no interest in or rights with respect thereto except as expressly set forth in this Agreement. Confidential Information does not include data or information which: (i) is or comes into the public domain, except through the fault of the receiving Party; (ii) is or becomes known to the receiving Party from a third party without an obligation of confidentiality; (iii) is developed by the receiving Party independently of the disclosing Party’s Confidential Information. A Party may disclose Confidential Information in response to legal or regulatory process, provided that the receiving Party shall, unless legally prohibited, provide the disclosing Party with reasonable prior written notice sufficient to permit the other Party an opportunity to contest such disclosure. Either Party may apply for injunctive relief without the need to prove actual damages to enforce this section.
OWNERSHIP. Clearspeed retains all right, title and interest (including all intellectual property rights and other rights) in and to the Clearspeed Intellectual Property and the Call Data. Customer retains all right, title and interest (including all intellectual property rights and other rights) in and to the Customer Data. Clearspeed will have (and Customer hereby grants) the right to use any suggestions, ideas, enhancement requests, feedback and recommendations provided by Customer relating to the Service.
WARRANTY DISCLAIMER. DURING THE TRIAL PERIOD THE SERVICE IS PROVIDED AS-IS WITH NO WARRANTIES WHATSOEVER. CLEARSPEED HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, RELIABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
INDEMNIFICATION

7.1 Clearspeed Indemnification Obligations. Clearspeed will indemnify and defend Customer and its officers, directors, employees, and agents, and will pay any damages, costs, expenses and reasonable attorneys’ fees finally awarded by a court or in a settlement, from any third party claim, suit or proceeding brought against them arising from or relating to a claim that the Clearspeed Intellectual Property infringes any United States patent, copyright or other intellectual property right. Should Clearspeed Intellectual Property become, or in Clearspeed’s opinion likely to become, the subject of a claim, then Customer will permit Clearspeed, at Clearspeed’s option and expense, to: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that the use becomes non-infringing; or, if Clearspeed determines in its sole discretion that neither of these is feasible, (c) terminate the Service and this Agreement and refund to Customer pro rata any prepaid, unused Fees. Clearspeed shall not have any indemnification obligation with respect to any claim to the extent it arises from modifications by Customer or a third party. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION ARE CLEARSPEED’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT CLAIMS.

7.2 Customer Indemnification Obligations. Customer will indemnify and defend Clearspeed and its officers, directors, employees and agents and will pay any damages, costs, expenses and reasonable attorneys’ fees finally awarded by a court or in a settlement, against any third party claim, suit or proceeding (including, without limitation, claims by Participants) brought against them arising from or relating to Customer’s failure to (a) secure any consent required by applicable law, or (b) use of the results of the Services in violation of applicable law.

7.3 Procedures. A Party’s indemnification obligations shall be conditioned on the indemnified Party: (i) providing prompt written notice of any claim for which indemnification is sought; (ii) provides reasonable assistance (at indemnifying Party’s expense) with such claim, (iii) allowing the indemnifying Party sole discretion to direct the defense and any negotiations or settlement of such claim as long as it does not require admission of fault or liability by the indemnified Party.

LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS HEREUNDER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY FOR ANY AND ALL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION WILL BE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO CLEARSPEED IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY.
TERM; TERMINATION. This Agreement will remain in effect for the Pilot Period and then will terminate automatically. If Customer desires to enter into a commercial relationship with Clearspeed it will execute a full Master Services Agreement with Clearspeed at that time. Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof. If either Party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other Party may terminate the Agreement immediately upon written notice. Clearspeed may terminate this Agreement at any time upon thirty (30) days’ notice to Customer for its convenience. Upon termination, the rights and licenses granted to Customer hereunder will terminate immediately. Sections 4-10 shall survive termination of this Agreement.
MISCELLANEOUS. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules and all disputes shall be subject to the exclusive jurisdiction of the courts located in San Francisco, California. Neither Party may assign, sublicense, delegate or otherwise transfer its rights or obligations hereunder, without the other Party’s prior written consent and any such assignment shall be null and void, except that consent shall not be required in connection with an acquisition, merger or similar transaction. In the event that any provision of this Agreement is held to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. All notices hereunder will be in writing via certified mail, return receipt requested, and will be deemed to have been duly given upon (i) personal delivery, (ii) five (5) days after sending, if sent by domestic mail; (iii) seven (7) days after sending, if sent by international mail, (iv) upon delivery if sent with a recognized courier. Non-legal notices may also be sent via email and will be deemed given upon delivery. Neither Party will be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results directly or indirectly from an event beyond such Party’s reasonable control. The Parties are independent contractors under this Agreement and nothing herein will constitute either Party as the employer, employee, agent or representative of the other Party, or both Parties as joint ventures or partners for any purpose. Each Party shall comply with all applicable export laws and regulations. For purposes of this Agreement and to the extent applicable, “commercial computer software” is defined at FAR 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties hereto. Any failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. This Agreement may be executed in one or more counterparts each of which shall be deemed an original but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “jif”) shall be effective as delivery of a manually executed counterpart of this Agreement.