Last Updated: June 2022

THESE CLEARSPEED TERMS OF SERVICE (“TERMS“) ARE A LEGAL AGREEMENT BETWEEN CLEARSPEED INC. (“CLEARSPEED“) A DELAWARE CORPORATION HAVING OFFICES AT 555 W BEECH ST, SUITE 502, SAN DIEGO, CA 92101, AND THE ENTITY THAT HAS PURCHASED AND/OR LICENSED FROM CLEARSPEED THE PRODUCTS, SERVICES AND SOFTWARE (“CUSTOMER” or “Customer”) EITHER DIRECTLY OR FROM AN AUTHORIZED RESELLER OF CLEARSPEED PRODUCTS (“Authorized Reseller”); 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.

CUSTOMER’S ACCESS TO AND/OR USE OF THE SERVICES AND/OR SOFTWARE (AS EACH IS DEFINED BELOW) IS CONDITIONED ON ITS ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS, AND CUSTOMER AGREES THAT BY ACCESSING AND USING THE SERVICE (AS DEFINED BELOW), IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY ALL OF THESE TERMS. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, CUSTOMER IS EXPRESSLY PROHIBITED FROM USING THE SERVICE AND/OR SOFTWARE (AS EACH IS DEFINED BELOW) AND MUST DISCONTINUE SUCH USE IMMEDIATELY. CLEARSPEED RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MAKE CHANGES OR MODIFICATIONS TO THESE TERMS AT ANY TIME AND FOR ANY REASON. CLEARSPEED WILL ALERT CUSTOMER ABOUT ANY SUCH CHANGES BY UPDATING THE “LAST UPDATED” DATE OF THESE TERMS ABOVE. CUSTOMER WAIVES ANY RIGHT TO RECEIVE SPECIFIC NOTICE OF EACH SUCH CHANGE, AND CUSTOMER AGREES THAT IT IS ITS RESPONSIBILITY TO PERIODICALLY REVIEW THESE TERMS TO STAY INFORMED OF UPDATES. CUSTOMER WILL BE SUBJECT TO, AND WILL BE DEEMED TO HAVE BEEN MADE AWARE OF AND TO HAVE ACCEPTED, THE CHANGES IN ANY REVISED TERMS BY ITS CONTINUED USE OF THE SERVICES AND/OR SOFTWARE (AS EACH IS DEFINED BELOW) AFTER THE DATE SUCH REVISED TERMS ARE POSTED.

In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Capitalized terms used in these Terms shall have the meaning assigned to them as set forth below.

“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 Terns as specifically set forth on a respective Order Form.

“Call Results” means the ultimate assessment and/or analysis of Call Data Clearspeed provides Customer 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 Customer’s specifications.

“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.

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

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

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

“Fees” means the fees, use fees and any other fees that Clearspeed or an Authorized Reseller charges Customer for the licenses and Services as set forth on the applicable 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 secrets, 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.

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

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

“Professional Services” means, collectively, packaged consulting, and/or training services made generally available by Clearspeed for purchase by Customer in accordance with its standard policies and governed by a separate final agreement executed by and between the parties.

“Service” or “Services” means the products and services that are ordered by Customer pursuant to an Order Form or online, 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.

“Subscription Term” means the specified time period set forth on each Order Form and referred to as Subscription Term  during which a) Customer shall be able to make Calls available for its Participants via the Services, and b) the applicable Software licenses are valid, as specified on a respective Order Form effective date. The initial term set forth in the Order Form together with any renewal term is collectively referred to as the Subscription Term.

“Support Services” means, solely the support and/or implementation services made generally available by Clearspeed to Customer allowing Customer to use the Services pursuant to a respective Order Form. For the avoidance of doubt, Support Services do not include any consulting and/or Professional Services.

“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 Customer) including, without limitation, via any website, app, or web portal, and the Documentation Clearspeed delivers or Customer 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. SERVICE SCOPE, SOFTWARE LICENSE, AND RESTRICTIONS
   • Performance of Service. Subject to compliance with the terms and conditions of these Terms, Clearspeed will perform the Services, purchased by Customer as set forth on a respective Order Form. Unless the parties agree otherwise, the minimum number of Calls conducted shall be the Call Quantity on each Order Form and all such Calls shall be conducted during the Subscription Term shown on each Order Form. Customer acknowledges that Clearspeed’s performance depends on Customer fulfilling any and all Customer Obligations as set forth in Section 3 below and further described on any respective Order Form, as applicable. Customer further acknowledges that any delays caused by Customer failing to fulfill the Customer Obligations shall result in delays of Clearspeed’s performance. Clearspeed grants to Customer a limited, non-exclusive, non-transferable (except as permitted herein), non-sublicensable (except as permitted herein) right during the Subscription Term hereof to (a) access and use the Services on behalf of Customer’s internal, business purposes; and (b) use and access the Documentation in support of the foregoing. In the event that the number of Calls actually made exceeds the allowable Call Quantity reflected on a respective Order Form (“Call Overages”), Customer shall either (i) request and pay for such Call Overage via an additional Order Form or, if no such Order Form for Call Overages is executed and subsequently paid for by Customer in a timely manner, (ii) any actual Call Overages shall be deemed an Order Form for the number of Calls constituting the total Call Overages. For the avoidance of doubt, any and all Fees and or amounts payable to Clearspeed or an Authorized Reseller with respect to any and all Call Overages shall be agreed upon between the parties on the respective Order Form addressing such Call Overages or, if deemed an Order Form pursuant to the terms of this Section, shall be determined in Clearspeed’s sole discretion in a commercially reasonable manner.
   • Subscription Rights to Use. During the applicable Subscription Term, subject to conditions in Section 3 (Customer Obligations) below and payment of any applicable license Fees, Clearspeed grants to Customer a world-wide, non-exclusive and non-transferable license to permit Customer to access and use the Software (including, without limitation, access via any website, app, or web portal) to aid in managing the development of the Clearspeed Questionnaire, Call responses, and tracking Participant information. For the avoidance of doubt, Customer’s access to any Clearspeed web portals or apps shall only be valid for a respective Subscription Term and any renewals thereof.
   • 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 Customer feedback or Suggestions (as defined below); and (d) all rights not expressly granted to Customer are reserved by Clearspeed and its licensors.
   • Customer 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) remove or alter any copyright, trademark or proprietary notice in the Software, Clearspeed Intellectual Property or Documentation; (e) enable access to the Services by any third party except as otherwise provided in these Terms or with the prior written consent of Clearspeed; (f) use the Services to access, alter or destroy any information of other contractors or customers of Clearspeed; and (g) 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 Customer 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.

 

• 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 an Order Form specifies that Clearspeed will supply the Third-party Materials then, unless agreed to otherwise by the parties on a respective 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 Customer or its agents. If Customer provides Third Party Materials, Customer 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 Customer pursuant to an Order Form, Customer 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.

 

3. CUSTOMER OBLIGATIONS
   • Customer Obligations. Customer shall (a) not use the Software in breach of the terms and conditions of Section 2 (Service Scope, Software License and Restrictions); (b) subject to Section 3.3 below, be solely responsible for obtaining proper and lawful consent from Participants to participate in a Call; (c) 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, 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 Customer to access the Software pursuant to the terms of these Terms (e.g. individual Participant reference number, Customer 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 Customer chooses to utilize certain Service features, use case information to craft the Clearspeed Questionnaire, etc.).
   • Login Credentials. If the type of Services requires Customer to create a user account, including a user name and password or other login credentials (“Login Credentials”), Customer 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. Customer is responsible for any access or use of the Services via the Login Credentials, including acts or omissions of each individual that Customer permits to use the Services. Clearspeed shall have no liability if a security breach is caused by Customer’s failure to employ industry-standard security and access control practices.
   • Obtain Proper Participant Consent. Customer 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, Customer 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.) Customer also acknowledges that Customer is responsible for making sure Clearspeed Questionnaires are responded to in a manner allowing Clearspeed to perform the Service (for example, Customer must ensure Participants are in a location where Clearspeed can gather Call Data). Customer will promptly work with Clearspeed upon resolving any issues with obtaining Call Data due to Participant-related issues.
   • Proper Use and Utilization of Call Data. Customer understands and acknowledges that a) the Service does not draw any conclusion about a Participant and is not predictive of future behavior and b) the sole purpose of the Service is to identify security and fraud risk allowing Customer to allocate further resources associated with any identified risk, and/or follow up with a respective Participant if Customer so chooses. For the avoidance of doubt, Customer acknowledges that it shall use the Call Results and/or any Call Data as a tool to provide Customer with guidance and as merely one factor, among others, on a specific risk-assessment issue that Customer 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 Customer 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. Customer 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.
   • Customer 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 Customer of any of its obligations in this Section 3 or Customer warranties set forth in Section 8.5 of these Terms.
4. SUPPORT AND PROFESSIONAL SERVICES
   • Support Services. During the Subscription Term, Clearspeed shall provide Customer with the level of support purchased by Customer and specified on the applicable Order Form. Customer hereby acknowledges, permits, and hereby grants Clearspeed the right to collect, compile and use the requisite Customer Data and Call Results in order to a) allow Clearspeed to perform Support Services and (b) to create generalized aggregated and anonymized reports; provided, however, that such use will not in any manner identify the Customer (unless written permission to identify such parties is otherwise provided) or Participants.
   • Suggestions and Feedback. Customer is not obligated to provide Clearspeed with any suggestions, enhancements, recommendations, or other feedback including, without limitation, a) feedback about the validity of the Call Data and/or Call Results, b) the results of its further follow on investigation (whether itself or through a third party) based on a respective Call Result, and whether such further investigation confirmed or conflicted with such Call Result (collectively, “Suggestions”). To the extent Customer does provide Clearspeed with any Suggestions, Customer hereby grants to Clearspeed a royalty-free, worldwide, transferable, sublicensable, irrevocable, right and license to use, copy, modify and distribute, without attribution, including by incorporating into any software or service owned by Clearspeed any Suggestions provided by Customer relating to any such software or service owned or offered by Clearspeed.
   • Professional Services. Customer may purchase Professional Services by executing an Order Form for such Professional Services with Clearspeed. In the event Customer executes an Order Form for Clearspeed Professional Services or otherwise accesses such service, such activity shall be exclusively governed by a final agreement executed by and between the parties.
5. FEES AND PAYMENT
   • Payment and Fees for Direct Purchases. Clearspeed will invoice Customer in advance and in accordance with the applicable Order Form. Unless otherwise stated in an Order Form, invoiced charges will be paid no more than thirty (30) days after the invoice date n each respective invoice. Invoices may be sent electronically at Clearspeed’s discretion. Except as otherwise specified herein or in an 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 Order Form and not actual Calls conducted; and (c) payment obligations are non-cancelable and Fees paid are non-refundable. Customer’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 Customer’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 Customer 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 Order Form will become due and payable. Without limitation of its other rights, Clearspeed may 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.
   • Payment and Fees for Reseller Purchases. In the event the Software licenses and Services are purchased hereunder through an Authorized Reseller, Customer’s obligation to pay any and all Fees shall be as described in a separate agreement to pay such Authorized Reseller. Customer acknowledges, that in addition to all other remedies under the law, the Authorized Reseller may be entitled to terminate the performance of any Services and any and all licenses granted hereunder for a breach of such separate agreement with Customer (e.g. a failure to pay for the performance of such Services and/or licenses).
   • Unless otherwise stated in the 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”). Customer is responsible for paying all Taxes associated with these Terms. If Clearspeed has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer 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. CONFIDENTIALITY
   • Neither party will: (a) disclose the other party’s Confidential Information to a third party or (b) 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; or (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.
7. OWNERSHIP Clearspeed retains all right, title and interest (including all intellectual property rights and other rights) in and to the Clearspeed Intellectual Property, the Software, and the Services. Customer retains all right, title and interest (including all Intellectual Property Rights and other rights) in and to the Customer Data; provided, however, Customer 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 Customer.
8. WARRANTIES; DISCLAIMER
   • Each party represents and warrants that it has the full right and authority to enter into, execute and perform its obligations under these Terms.
   • Clearspeed Warranties. Clearspeed warrants for the sole benefit of Customer that (a) Clearspeed will use industry-standard measures to protect Customer Data from unauthorized use or breach in violation of applicable privacy laws; (b) during the Subscription Term of each respective Order Form, the Software and Services, when used in accordance with the Documentation and solely as authorized herein, will perform substantially in accordance with the Documentation; and (c) the Support Services will be performed with due care and skill in a professional and workmanlike manner. The foregoing warranties shall not apply to any error or failure resulting from (i) use of the Services or Software in an operating environment other than as set forth in the Documentation; (ii) Customer’s failure to follow any reasonable instruction of Clearspeed, (iii) use of the Software or Services outside the terms and conditions of these Terms, (iv) Customer’s negligence or accident or modification of the Software by anyone other than Clearspeed.
   • Remedy for Services. As Clearspeed’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in subsection 8.2(b) , if Customer notifies Clearspeed in writing within ten (10) days of completion of the applicable Services, Clearspeed shall, in Clearspeed’s sole discretion, (a) re-perform any Services that do not meet the warranty; (b) give Customer a credit against future Services for the Services that do not perform properly; or (c) terminate the Order Form relating to the Services that do not perform properly and refund to Customer pro rata the prepaid, unused Fees for that Order Form.
   • Remedy for Support & Professional Services. As Clearspeed’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in subsection 8.2(c), if Customer notifies Clearspeed in writing within ten (10) days of completion of the applicable Support Services, Clearspeed shall re-perform such services at no additional cost to Customer.
   • Customer Warranties. Customer warrants that it will (a) have all rights in Customer Data needed to allow Clearspeed to perform the Service, including, without limitation, all consents from Participants; (b) perform the Customer Obligations in a professional and workmanlike manner and (c) will only use or apply the Service in compliance with applicable laws, rules, and regulations.
   • DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 8.2 (CLEARSPEED WARRANTIES), THE SERVICES ARE PROVIDED AND THE SOFTWARE HEREUNDER IS LICENSED “AS IS” AND “AS AVAILABLE” AND CLEARSPEED HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. ADDITIONALLY, CUSTOMER ACKNOWLEDGES THE SERVICES ONLY PROVIDE RISK OUTCOMES BASED ON THE RISK-RELATED QUESTIONS APPROVED BY THE CUSTOMER AND ASKED DURING THE CALL, AND ARE BASED UPON THE EVALUATION OF SPECIFIC VOCAL CHARACTERISTICS VIA PROPRIETARY FORMULAS TO RESPONSES MADE AT THE SPECIFIC TIME THE CALL WAS CONDUCTED, IN CONTEXT WITH THE CIRCUMSTANCES UNDER WHICH THE CALL WAS CONDUCTED AND THEREFORE CLEARSPEED DOES NOT WARRANT THE RESULTS WILL BE ACCURATE BEYOND THE LIMITS THEREOF. FOR THE AVOIDANCE OF DOUBT, THE ABOVE DISCLAIMER OF WARRANTIES ALSO APPLY TO CUSTOMER’S IMPLEMENTATION OF THE RESULTS OF USING THE SERVICES AND/OR SOFTWARE, AND ANY OF CUSTOMER’S ACTIONS BASED ON SUCH RESULTS ARE EXCLUSIVELY WITHIN CUSTOMER’S CONTROL AND RESPONSIBILITY. THE REMEDIES SET FORTH HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS THAT CLEARSPEED HAS VIOLATED ANY WARRANTY.
9. INDEMNIFICATION
   • Clearspeed Indemnification Obligations. Clearspeed agrees to indemnify Customer against any damages finally awarded against Customer including reasonable attorney’s fees by a court or in a settlement incurred in connection with a third-party claim alleging that the Customer’s use of the unaltered Software (including software underlying the Service) infringes or misappropriates any third-party United States patent or copyright in designated for delivery of the Software in accordance with the terms of these Terms, provided that Customer provides prompt written notice of such claim to Clearspeed, grants Clearspeed the sole right to control and defend such claim, and provides to Clearspeed all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, Clearspeed may, at its sole option (a) revise the Software or Service so that it is no longer infringing; (b) obtain the right for Customer to continue using the Software and/or Service, as applicable; or (c) terminate these Terms upon thirty (30) days’ notice and refund any pro-rata unused, pre-paid Fees received by Clearspeed. Notwithstanding the foregoing, Clearspeed shall have no liability or indemnification obligations from claims that arise from: (i) a version of the Software other than the then current version; (ii) modification of the Software by anyone other than Clearspeed; (iii) combination, operation or use of the Software with any other products not supplied by Clearspeed including, without limitation, Third Party Materials; (iv) any claim made for any use of the Software outside of a valid Subscription Term; or (v) any claim or damages arising after Clearspeed’s notice to Customer that Customer should cease use of the Software  in accordance with this paragraph. THIS SECTION 10.1 STATES THE ENTIRE LIABILITY OF CLEARSPEED  AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE AND/OR SERVICE.
   • 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
    • Limitation on All Damages. TO THE EXTENT NOT PROHIBITED BY LAW, EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) OR CUSTOMER’S LIABILITY ARISING UNDER SECTION 3 (CUSTOMER OBLIGATIONS), IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE 100% OF THE FEES PAID OR PAYABLE IN CONNECTION WITH THE RELEVANT ORDER FORM WHICH GAVE RISE TO THE DISPUTE.
    • Disclaimer of Consequential Damages. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) AND CUSTOMER’S LIABILITY ARISING UNDER SECTION 3 (CUSTOMER OBLIGATIONS), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ANY LOST PROFITS, REVENUE, OR DATA, INTERRUPTION OF BUSINESS OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
11. TERM AND TERMINATION
    • Term; Renewals. Unless sooner terminated, these Terms will remain in effect for as long as there is an active Order Form. Upon expiration of the Subscription Term of each Order Form, unless otherwise stated on that Order Form, the Order Form will not automatically renew.
    • Clearspeed may terminate these Terms by written notice effective immediately if Customer materially breaches these Terms. If termination is due to Customer’s material breach, Customer will pay any Fees then due, including Fees remaining for the Subscription Term of all Order Forms. If termination is due to Clearspeed’s material uncured breach, Clearspeed shall refund pro rata any prepaid, unused Fees. 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 these Terns immediately upon written notice. Upon termination or expiration of these Terms, the rights and licenses granted to Customer hereunder will terminate immediately, and Customer’s access to use the Software and any additional license rights granted thereto in these Terms including, without limitation, access via any website, app, or web portal, shall terminate immediately.
    • Customer’s obligation to make payment of any unpaid Fees and the terms of Sections 1 (Definitions), 2.3 (Clearspeed Intellectual Property Rights), 3 (Customer Obligations), 6 (Confidentiality), 7 (Ownership), 8.6 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Term and Termination), and 12 (General Terms) shall survive any termination or expiration of these Terms.
12. GENERAL TERMS
    • Customer’s Purchase Order and Authorized Reseller. Any terms or conditions in Customer’s purchase order, work order, and/or any other related documentation submitted by or on behalf of Customer to Clearspeed do not form part of these Terms and are void, unless otherwise expressly agreed in writing and signed by both Customer and Clearspeed. In the event that licenses or Services purchased hereunder are from an Authorized Reseller, Clearspeed’s sole obligations and liabilities shall be as set forth in these Terms and, in no event, shall the terms of such Authorized Reseller’s separate contract with the Customer be binding on Clearspeed.
    • Governing Law. These Terms and any disputes arising out of or related hereto 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 or the United Nations Convention on the International Sale of Goods. Both parties hereby irrevocably consent to the personal and exclusive jurisdiction of the state and federal courts of competent jurisdiction located in San Francisco, California. The substantially prevailing party shall be entitled to recover its reasonable attorneys’ fees, and costs and expenses incurred. Either party may seek injunctive or other emergency relief in any competent court.
    • Either party may include the other’s name and logo in customer or vendor lists on such party’s website and marketing collateral. Customer also agrees to: (a) collaborate on press releases announcing or promoting the relationship, and (b) collaborate on case studies or other marketing collateral.
    • Either party may assign these Terms in its entirety to a surviving person or entity under a merger or acquisition or similar transaction upon written notice to the other party, provided that such assignment does not expand the scope of the Services and the assignee assumes all of the assigning party’s obligations hereunder in writing. Clearspeed may assign its rights to payment to a third party as part of a security interest or financing transaction. Customer may not assign any of its rights or obligations under these Terms without the prior written consent of Clearspeed, which consent shall not be unreasonably withheld. This Section shall not be construed as limiting Clearspeed’s right to use contractors and its affiliates to carry out any of its obligations under these Terms, provided that Clearspeed shall remain liable for any such services provided by a contractor or affiliate. Any assignment not in conformity with this Section shall be null and void.
    • In the event that any provision of these Terms is held by a court or other tribunal of competent jurisdiction 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.
    • Notices. All notices hereunder will be in writing via certified mail, return receipt requested, and will be deemed to have been duly given upon (a) personal delivery; (b) five (5) days after sending, if sent by domestic mail; (c) seven (7) days after sending, if sent by international mail; (d) upon delivery if sent with a recognized courier. Non-legal notices may also be sent via email and will be deemed given upon delivery. Customer’s notice information shall be as set forth in each Order Form, or as updated by notice. Clearspeed’s notice information shall be as set forth below or as updated by notice:

Clearspeed
555 W Beech St, Suite 502
San Diego, CA 92101
Attn: Legal Department
Email: legal@clearspeed.com

• Force Majeure. Except for any payments due hereunder, neither party shall be responsible for delay or failure in performance caused by any government act, law, regulation, order, or decree, by communication line or power failures beyond its reasonable control, or by fire, flood, or other natural disasters or by other causes beyond its reasonable control, nor shall any such delay or failure be considered a breach of these Terms.
• Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach of any covenant contained in these Terms may cause irreparable injury, that money damages may be an inadequate remedy and that each party will be entitled to seek temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain the other party from such breach or threatened breach. Nothing in this Section will be construed as preventing a party from pursuing any and all remedies available to it, including the recovery of money damages.
• Independent Contractors and No Agency. 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. Nothing in these Terms is intended to constitute a fiduciary relationship, agency, joint venture, partnership or trust between the parties. No party has authority to bind the other party. These Terms shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.
• The Services may be controlled by the United States and other governments for export, re-export, deemed export, and import purposes (jointly, export and import). Customer agrees to comply with all such export and import laws, regulations, directives, rules, and controls regarding the Services and Software including, without limitation, the United States Export Administration Regulations, International Traffic in Arms Regulations, Office of Foreign Asset Control directives, sanctions, prohibitions and restrictions, and all treaties, Executive Orders, statutes, amendments and supplements thereto (laws). Customer is responsible for obtaining all export and import licenses, authorizations, permissions, and to accomplish other acts to comply with all such laws. The Software and Service is commercial and shall be used for non-prohibited, commercial purposes by non-prohibited end-users and shall not be exported or transferred to any end-user located in a country embargoed by the United States, or to a national of such a country, without the appropriate license or authorization. Customer will not export the Software and/or Service to a person or entity denied, prohibited, debarred or sanctioned (denied) by the United States Government, and Customer represents that it is not such a denied person or entity.
• US Government Restrictions. Customer acknowledges that the Software consists of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the Code of Federal Regulations. No government procurement regulations or contract clauses or provisions shall be deemed a part of any transaction between the parties unless its inclusion is required by law, or mutually agreed in writing by the parties in connection with a specific transaction. Use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the terms of these Terms.
• Entire Agreement. These Terms (including this document, any duly executed Order Forms and Statements of Work) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. 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. In the event of a conflict between the Order Form and these Terms, the Order Form shall govern, though only to the extent of the conflict. The section headings contained in these Terms are inserted for convenience only and shall not affect in any way the meaning or interpretation of these Terms.
• Construction. The parties have participated jointly in the negotiation and drafting of these Terms. In the event an ambiguity or question of intent or interpretation arises, these Terms shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of these Terms.