CLEARSPEED PILOT TERMS OF USE

CLEARSPEED PROOF OF VALUE TERMS OF USE

Last Updated: May 2024
THESE CLEARSPEED PROOF OF VALUE TERMS OF USE (“TERMS“) ARE A LEGAL AGREEMENT BETWEEN YOU (“CLIENT” OR “YOU”) AND CLEARSPEED INC. (“CLEARSPEED“), EACH A “PARTY” AND COLLECTIVELY THE “PARTIES.” BY EXECUTING A PROOF OF VALUE ORDER FORM THAT INCLUDES THESE TERMS BY REFERENCE OR USING THE CLEARSPEED SERVICES, CLIENT ACKNOWLEDGES THAT CLIENT 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 “CLIENT” REFERS TO THAT ENTITY. CLEARSPEED MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, BUT CLIENT WILL BE BOUND BY THE VERSION OF THE TERMS EXISTING AS OF THE DATE A RELEVANT PROOF OF VALUE ORDER FORM WAS EXECUTED UNTIL THAT PROOF OF VALUE ORDER FORM IS RENEWED.

1. 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 any and all other methods made available by Clearspeed.

“Call Data” means the data collected by Clearspeed during a Call, including, without limitation, the analog and digital recordings of a Participant’s vocal responses (generally limited to “yes” or “ no” responses) during the course of a Call.

“Call Quantity” means the number of Calls permitted under these Terms as specifically set forth on a Proof of Value Order Form.

“Call Results” means the ultimate assessment and/or analysis of Call Data Clearspeed provides Client with respect to any specific Participant response (e.g. identifying the response as low, potential, average, or high risk) to any Clearspeed Questionnaire question. For the avoidance of doubt, the process by which Clearspeed analyzed and/or assesses the Call Data shall not be part of the definition of Call Results.
“Clearspeed Questionnaire” means a set of pertinent questions that are asked on a Call whether based on existing templates or designed pursuant to Client’s specifications.

“Client Data” as between Clearspeed and Client, means any data Client inputs into the Clearspeed web portal utilizing the Software, and any personally identifiably information (“PII”) about Participants that Client provides or Clearspeed learns in the course of providing the Service, and the Call Results.

“Client Obligations” means the required conditions and obligations of Client as set forth in Section 3 below and as further described on any and all applicable Proof of Value Order Forms.

“Confidential Information” means all non-public information disclosed by a party to the other party which (a) is marked as “Confidential” or with a comparable legend if disclosed in written, graphic, machine readable or other tangible form, or (b) which should be reasonably in good faith be treated as confidential or proprietary based on the nature of the information or the circumstance surrounding its disclosure. Confidential Information does not include information which: (i) is generally known or publicly available, or which, hereafter through no act or failure to act on the part of recipient, becomes generally known or available; (ii) is rightfully known to recipient at the time of receiving such information; (iii) is furnished to recipient by a third party without restriction on disclosure; or (iv) is independently developed by recipient without having relied on the Confidential Information of the disclosing party.

“Documentation” means any documentation related to the Service and/or Software made available to Client by Clearspeed.

“Fees” means the fees, use fees and any other fees that Clearspeed charges Client as part of the proof of value, if any, as specifically set forth in each Proof of Value Order Form.

“Intellectual Property Rights” means any intellectual property rights, including patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trade name, and rights of confidentiality, trade secrets or proprietary information, in all cases whether or not registered or registrable in any country, and including the right to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world from time to time.

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

“Pilot Period” means the limited duration period set forth on a Proof of Value Order Form during which Client shall be able to make Calls available for its Participants via the Services as part of its testing and trial of the Clearspeed Services, and b) the applicable Software licenses are valid.

“Proof of Value Order Form” means an ordering document or online order specifying the proof of value Services to be provided hereunder that is entered into between Client and Clearspeed.

“Service” or “Services” means the products and services that ordered by Client pursuant to a Proof of Value Order Form or online, used exclusively for Client’s internal evaluation purposes, and made available online or offline by Clearspeed (including, without limitation, the ability for a Participant to respond to a Clearspeed Questionnaire in the manner mutually agreed upon by both parties pursuant to the terms of these Terms) identifying security and fraud risks. The exclusive purpose of any Call(s) and subsequent Call Results is identifying potential security and/or fraud risk, and as such, expressly should not be used for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

“Software” means the generally available, commercially-licensed software, in binary form including all updates thereto (whether a major or minor release of the Software, or a fix of patch thereto, that Clearspeed may make available to Client) including, without limitation, via any website, app, or web portal, and the Documentation Clearspeed delivers or Client has been granted access to hereunder including any and all software underlying any features of the Service, and any websites and apps utilized in conjunction with the Service.

2. PROOF OF VALUE SCOPE, SOFTWARE LICENSE, RESERVATION OF RIGHTS, AND RESTRICTIONS

2.1. Performance of Service. Clearspeed will use reasonable commercial efforts to provide the Service to Client in accordance with these Terms. 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, Client acknowledges that Clearspeed’s performance depends on Client fulfilling any and all Client Obligations as set forth in Section 3 (Client Obligations and Legal Compliance) below and further described on any respective Proof of Value Order Form. Client further acknowledges that any delays caused by Client failing to fulfill the Client Obligations shall result in delays of Clearspeed’s performance. Clearspeed grants to Client a limited, non-exclusive, non-transferable (except as permitted herein), non-sublicensable (except as permitted herein) right during the Pilot Period to (a) access and use the Services in furtherance of Client’s internal evaluation purposes; and (b) use and access the Documentation in support of the foregoing.

2.2. Subscription Rights to Use. During the applicable Pilot Period, subject to the obligations set forth in Section 3 (Client Obligations and Legal Compliance) below and payment of any applicable Proof of Value license Fees, Clearspeed grants to Client a world-wide, non-exclusive and non-transferable license to permit Client to access and use the Software (including, without limitation, access via any website, app, or web portal) to a) aid in the development of the Clearspeed Questionnaire; b) managing the Call Results; and c) tracking Participant information. For the avoidance of doubt, Client’s access to any Clearspeed web portals or apps shall only be valid for the Pilot Period.

2.3. Clearspeed Intellectual Property. Title to and ownership of (a) all copies of the Software whether in machine-readable (source, object code or other form) or printed form, and all related, technical know-how and all rights herein (including relate without limitation all Intellectual Property Rights applicable thereto an in all derivative works by whomever produced), are reserved by Clearspeed and its licensors and shall remain the exclusive property thereof; (b) any and all Clearspeed’s proprietary technology relating to the Services, including, without limitation, any software underlying the Service, any Clearspeed Questionnaire(s) and responses thereto 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; (c) any learning and subsequent modifications to any Clearspeed software (or any underlying algorithms) or services resulting from any Client feedback or Suggestions (as defined below); and (d) all rights not expressly granted to Client are reserved by Clearspeed and its licensors.

2.4. Routine Testing. Provided Client obtains prior written consent from Clearspeed, Clearspeed grants Client the right to conduct routine testing of the Clearspeed Services solely for the purpose of (a) ensuring the overall quality of interviews; (b) determining which specific language should be used during the interview process; (c) testing the quality of telephone lines or web-based connections used to conduct interviews; and (d) conduct testing for other similar purposes associated with determining overall interview quality. In order to obtain Clearspeed’s approval to conduct such routine testing, Client must submit a written request to Clearspeed (i) informing Clearspeed of its intention to conduct such routine testing of the Clearspeed Services; (ii) defining the purpose of such routine testing; (iii) stating the exact dates such testing will occur (provided no such testing period shall exceed five (5) business days). Clearspeed retains the right, in its sole discretion, to deny or place any restrictions it deems necessary on any such routine testing requests, and Clearspeed shall not be obligated to provide any reports or results during the agreed-upon testing period (if any).

2.5. Restrictions. Client shall not, directly or indirectly: (a) use the Services except as permitted hereunder; (b) sublicense, resell, rent, lease, decompile, disassemble, reverse engineer, or in any way derive source code from the Software or any Clearspeed Intellectual Property, distribute or otherwise transfer rights or usage in the Software or any Clearspeed Intellectual Property; (c) host, sell, resell, rent, exploit or lease the Software or Services or provide the Software or Services on a timesharing, service bureau, service provider or other similar basis; (d) subject to the Routing Testing section above, conduct any type of scientific, technical, academic or other type of research or evaluation of the Clearspeed Software or Services; (e) engage in or attempt to in any manner defeat the Clearspeed Services for any purpose whatsoever; (f) remove or alter any copyright, trademark or proprietary notice in the Software, Clearspeed Intellectual Property or Documentation; (g) enable access to the Services by any third party except as otherwise provided in these Terms or with the prior written consent of Clearspeed; (h) use the Services to access, alter or destroy any information of other contractors or customers of Clearspeed; or (i) use the Services to (i) introduce any virus or other malware into Clearspeed’s systems or (ii) circumvent or modify any security technologies included as part of the Services. In connection with a violation of the foregoing, Clearspeed may suspend usage of the Services, without notice, pending any investigation of misuse. However, Clearspeed shall provide Client with notice of suspension as soon as reasonably practicable, provided that Clearspeed’s security team has determined that such notice shall not cause any delay or interfere with its investigation or cause any damage or harm to Clearspeed’s systems, or delivery of Services.

2.6. Third Party Software, Hardware and Services. The Services may require the use of software, hardware, equipment or ancillary services provided by third parties (“Third Party Materials”). If a Proof of Value Order Form specifies that Clearspeed will supply the Third-party Materials then, unless agreed to otherwise by the parties on a respective Proof of Value Order Form or otherwise, Clearspeed assumes the responsibility for their performance and for compliance with any restrictions associated with such Third-party Materials, except in connection with intentional or negligent acts or omissions of Client or its agents. If Client provides Third Party Materials, Client assumes the responsibility for their performance, for ensuring that such Third Party Materials are adequate for the proper operation of the Services, and for compliance with any restrictions associated with such Third Party Materials, except in connection with intentional or negligent acts or omissions of Clearspeed or any of its agents. If Clearspeed provides hardware or equipment to Client pursuant to a Proof of Value Order Form, Client shall return all such items in the same condition as provided, except for normal wear and tear, and shall be responsible for the full replacement cost of any damaged hardware or equipment.

2.7. If Client or any of its employees, contractors, or agents submits, orally or in writing, suggestion or recommended changes to the Services, Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Suggestions”), Clearspeed is free to use such Suggestions irrespective of any other obligation or limitation between the parties governing such Suggestions. Client hereby assigns to Clearspeed on Client’s behalf and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Clearspeed is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Suggestions, for any purpose whatsoever, although Clearspeed is not required to use any Suggestions.

3. CLIENT OBLIGATIONS AND 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.

3.2. Statistical Dissociated Data. Client 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 Client 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 Client or Participants. Client 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 Client 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. Client Obligations. Client shall (a) not use the Software in breach of the terms and conditions of Section 2 (Proof of Value Scope, Software License, and Restrictions); (b) subject to Section 3.5 below, be solely responsible for obtaining proper and lawful consent from Participants to participate in a Call; (c) for the proper functionality of the Service, ensure that Participants only use natural human voices rather than any type of recorded, or any other form of altered, synthetic or computer-generated voice recordings and/or simulations; use the Software and Service (including, without limitation, the content and use of any Call questionnaires) in accordance with applicable laws, rules, regulations and the Documentation; (d) not use the Software or Service in an libelous, infringing, or otherwise unlawful, illegal or tortious manner; (e) promptly notify Clearspeed of any unauthorized use of, or access to, the Software or Service of which is becomes aware; (e) comply with any and all applicable laws including, without limitation, privacy and employment laws, when utilizing the results of the Service, the Software, Call Data, and/or Call Results; and (f) provide Clearspeed with any and all data Clearspeed needs in order to provide the Service, Support Services, or allow Client to access the Software pursuant to the terms of these Terms (e.g. individual Participant reference number, Client point of contact information, approximate number of participants, nearest city in order for Clearspeed to establish telephone number(s) Participants can use to participate in the Calls, and Participant emails if Client chooses to utilize certain Service features, use case information to craft the Clearspeed Questionnaire, etc.).

3.4. Login Credentials. Client shall create a user account, including a user name and password or other login credentials (“Login Credentials”), Client shall be responsible for maintaining the confidentiality and security of the Login Credentials and all activity in each user account by itself and its agents. Client is responsible for any access or use of the Services via the Login Credentials, including acts or omissions of each individual that Client permits to use the Services. Clearspeed shall have no liability if a security breach is caused by Client’s failure to employ industry-standard security and access control practices.

3.5. Obtain Proper Participant Consent. Client is solely responsible for obtaining proper and lawful consent from each and every Participant to engage, participate, and have their responses recorded as part of responding to the Clearspeed Questionnaire. Specifically, Client must provide each Participant with requisite information to make such consent valid, and must do so in the lawful format (including, without limitation, oral, written, or both, etc.) Client also acknowledges that Client is responsible for making sure Clearspeed Questionnaires are responded to in a manner allowing Clearspeed to perform the Service (for example, Client must ensure Participants are in a location where Clearspeed can gather Call Data). Client will promptly work with Clearspeed upon resolving any issues with obtaining Call Data due to Participant-related issues.

3.6. Proper Use and Utilization of Call Data. Client understands and acknowledges that for the duration of the Pilot Period the (a) Services shall only be used for the purpose of Client’s internal evaluation of such Services; (b) the Service does not draw any conclusion about a Participant and is not predictive of future behavior; and (c) the sole purpose of the Service is to identify security and fraud risk allowing Client to allocate further resources associated with any identified risk, and/or follow up with a respective Participant if Client so chooses. For the avoidance of doubt, Client acknowledges that it shall use the Call Results and/or any Call Data as a tool to provide Client with guidance and as merely one factor, among others, on a specific risk-assessment issue that Client may use in making any final decisions. A Clearspeed Questionnaire 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 Client is solely responsible for interpreting the Call Results, and shall determine the appropriate consideration that any such Call Result should be given in making any decision. Client shall be responsible for obtaining and complying with any and all applicable laws, rules, and regulations with respect to any decision it chooses to make based on the Call Results and/or any Call Data.

3.7. Claims. Client agrees to indemnify Clearspeed against any damages finally awarded against Clearspeed, including reasonable attorney’s fees, by a court or in a settlement, incurred in connection with a third-party claim (including, without limitation, those brought by any Participant) arising from or relating to a breach by Client of any of its obligations in this Section 3 or Client warranties set forth in Section 8 (Client Warranties) of these Terms.

4. CONFIDENTIALITY. Neither party will: (i) disclose the other party’s Confidential Information to a third party, or (ii) use the Confidential Information for any purpose other than as indicated in these Terms 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 these Terms. 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 to the extent required: (1) to any consultant, contractor, advisor or counsel who has a bona fide need to know in connection with these Terms and has executed a protective non-disclosure agreement with the receiving party or (2) by operation of law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under these Terms; provided, the receiving party shall, unless legally prohibited, provide the other party with reasonable prior written notice sufficient to permit the other party an opportunity to contest such disclosure.

5. FEES AND PAYMENT

5.1. Payment and Fees for Direct Purchases. Clearspeed will invoice Client in advance and in accordance with the applicable Proof of Value Order Form. Unless otherwise stated in a Proof of Value Order Form, invoiced charges will be paid no more than thirty (30) days after the invoice date on each respective invoice. Invoices may be sent electronically at Clearspeed’s discretion. Except as otherwise specified herein or in a Proof of Value Order Form, (a) Fees are quoted and payable in United States Dollars; (b) Fees are based on the quantity of Calls actually purchased pursuant to the Proof of Value Order Form and not actual Calls conducted; and (c) payment obligations are non-cancelable and Fees paid are non-refundable. Client’s failure to pay any undisputed Fees when due is a material breach of these Terms. In the event of such material breach Clearspeed may, in its sole discretion, 1) suspend Client’s access to the Software and/or Services for failure to pay any Fees when due after thirty (30) days’ notice of such failure, and Client will continue to be charged all applicable Fees for the Software and Services during any period of suspension; or 2) terminate these Terms effective immediately. Upon termination for non-payment, all amounts due for the entire Subscription Term of each Proof of Value Order Form will become due and payable. Without limitation of its other rights, any Fees not paid when due will accrue interest at the rate of 12% per annum (or 1.0% per month), or the maximum rate permitted by law, whichever is lower.

5.2. Taxes. Unless otherwise stated in the Proof of Value Order Form, Fees and pricing do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with these Terms. If Clearspeed has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount will be invoiced to and paid by Client, unless Client provides Clearspeed with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Clearspeed is solely responsible for taxes assessable against it based on Clearspeed’s income, property and employees.

6. OWNERSHIP. Clearspeed retains all right, title and interest (including all Intellectual Property Rights and other rights) in and to the Clearspeed Intellectual Property (as defined in Section 2.3), the Software, and the Services. Client retains all right, title and interest (including all Intellectual Property Rights and other rights) in and to the Client Data; provided, however, Client hereby grants a royalty-free, worldwide right and license to access, use, copy, and modify the Call Data for the purpose of providing the Services to the Client.

7. WARRANTY DISCLAIMER. DURING THE PILOT 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.

8. CLIENT WARRANTIES. Client warrants that it will (a) have all rights in Client Data needed to allow Clearspeed to perform the Service, including, without limitation, all consents from Participants; (b) perform the Client Obligations in a professional and workmanlike manner and (c) only use or apply the Service in compliance with applicable laws, rules, and regulations.

9. INDEMNIFICATION

9.1. Clearspeed Indemnification Obligations. Clearspeed will indemnify and defend Client 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 Client will permit Clearspeed, at Clearspeed’s option and expense, to: (a) procure for Client 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 these Terms and refund to Client 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 Client or a third party. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION ARE CLEARSPEED’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT CLAIMS.

9.2. Client Indemnification Obligations. Client 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 Client’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.

9.3. 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.

10. 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 GREATER OF A) ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) OR B) THE AMOUNTS PAID OR PAYABLE BY CLIENT TO CLEARSPEED IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY.

11. TERM; TERMINATION. These Terms will remain in effect for the Pilot Period and then will terminate automatically. If Client desires to enter into a commercial relationship with Clearspeed the parties will execute a full Master Services Agreement that will govern Client’s commercial use of the Services. Either party may terminate these Terms by written notice to the other party if the other party materially breaches these Terms 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 Terms immediately upon written notice. Clearspeed may terminate these Terms at any time upon thirty (30) days’ notice to Client for its convenience. Upon termination, the rights and licenses granted to Client hereunder will terminate immediately. Sections 1 (Definitions), 2.3 (Clearspeed Intellectual Property), 3 (Client Obligations and Legal Compliance), 4 (Confidentiality), 6 (Ownership), 7 (Warranty Disclaimer), 8 (Client Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11 (Term; Termination), and 12 (Miscellaneous) shall survive any expiration or termination of these Terms.

12. MISCELLANEOUS. These Terms will be governed by and construed in accordance with the laws of the State of California, 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 these Terms is held to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that these Terms 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 these Terms 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 these Terms 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 these Terms 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 Terms 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 Terms 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. These Terms constitutes the entire agreement between the parties pertaining to the subject matter hereof. No modification, amendment or waiver of any provision of these Terms will be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of these Terms will not constitute a waiver thereof or of any other provision. These Terms 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 these Terms by facsimile or in electronic format (i.e., “pdf” or “jif”) shall be effective as delivery of a manually executed counterpart of these Terms.