END USER LICENSE AGREEMENT
CLEAR COMPUTING SOFTWARE END USER LICENSE AGREEMENT (US)This Agreement is a legal agreement between you and Clear Computing. By clicking "I Agree,"indicating acceptance electronically, or by installing, accessing or using the Software, you agree tothese terms. If you do not agree to this Agreement, then you may not use the Software.
1.1 This Agreement describes the terms governing your use of the Clear Computing Softwareincluding content, updates and new releases (collectively, the “Software”).
2. LICENSE GRANT AND RESTRICTIONS2.1 The Software is protected by copyright, trade secret, and other intellectual property laws.You are only granted certain limited rights to install and/or use the Software, and Clear Computingreserves all other rights in the Software not granted to you in writing herein. As long as you meet anyapplicable payment obligations and comply with this Agreement, Clear Computing grants you apersonal, limited, nonexclusive, nontransferable, revocable license to use the Software only for theperiod of use provided in the ordering and activation terms, as set forth in this Agreement, or inaccordance with Clear Computing’s then-current product discontinuation policies, as updated fromtime to time, and only for the purposes described by Clear Computing for the Software.
2.2 You acknowledge and agree that the Software is licensed, not sold. You agree not to use,nor permit any third party to use, the Software in a manner that violates any applicable law,regulation or this Agreement. You agree you will not:· Provide access to or give the Software or any part of the Software to any third party;· Reproduce, duplicate, modify, copy, deconstruct, reverse-engineer, sell, trade or resell theSoftware;· Transfer your license to the Software to any other party;· Attempt unauthorized access to any other Clear Computing systems that are not part of theSoftware;· Permit any third party to benefit from the use or functionality of the Software via a rental,lease, timesharing, service bureau, hosting service, or other arrangement; or· Make the Software available on any file-sharing or application hosting service.
3. PAYMENT. For Software licensed on a payment or subscription basis, the following termsapply, unless Clear Computing notifies you otherwise in writing. This Agreement also incorporatesby reference and includes program ordering and payment terms provided to you for the Software:a. Payments will be billed to you in U.S. dollars, and your account will be debited whenyou subscribe and provide your payment information, unless stated otherwise in the programordering or payment terms on the website for the Software.b. If your payment and registration information is not accurate, current and complete,and you do not notify us promptly when such information changes, we may suspend or terminateyour account, terminate your license and refuse any further use of the Software.c. Clear Computing will automatically renew your monthly, quarterly, or annualsubscription at the then-current rates, unless the Software license or subscription is cancelled orterminated under this Agreement.d. Additional cancellation or renewal terms may be provided to you on the website forthe Software.
4.1 You are responsible for your content. You are responsible for all materials ("Content")uploaded, posted or stored through your use of the Software. You grant Clear Computing aworldwide, royalty-free, non-exclusive license to host and use any Content provided through youruse of the Software. Archive your Content frequently. You are responsible for lost or unrecoverableContent. You must provide all required and appropriate warnings, information and disclosures. ClearComputing is not responsible for the Content or data you provide through your use of the Software.You agree not to use the Software, nor permit any third party to use, the Software to upload, post,distribute, link to, publish, reproduce, engage in or transmit any of the following, including but notlimited to:a. Illegal, fraudulent defamatory, obscene, pornographic, profane, threatening, abusive,hateful, harassing, offensive, inappropriate or objectionable information or communications of anykind, including without limitation conduct that would encourage "flaming" others, or criminal or civilliability under any local, state, federal or foreign law;b. Content that would impersonate someone else or falsely represent your identity orqualifications, or that constitutes a breach of any individual’s privacy;c. Except as permitted by Clear Computing in writing, solicitations, chain letters, pyramidschemes, other unsolicited commercial communication or engage in spamming or flooding;d. Virus, trojan horse, worm or other disruptive or harmful software or data; ande. Any information, software or Content which is not legally yours and without permissionfrom the copyright owner or intellectual property rights owner.
4.2 Clear Computing may freely use feedback you provide. You agree that ClearComputing may use your feedback, suggestions, or ideas in any way, including in futuremodifications of the Software, other products or services, advertising or marketing materials. Yougrant Clear Computing a perpetual, worldwide, fully transferable, non-revocable, fully paid-up,royalty free license to use the feedback you provide to Clear Computing in any way.
4.3 Clear Computing may monitor your Content. Clear Computing may, but has noobligation to, monitor content on the Software. We may disclose any information necessary to satisfyour legal obligations, protect Clear Computing or its customers, or operate the Software properly.Clear Computing, in its sole discretion, may refuse to post, remove, or refuse to remove, anycontent, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation ofthis Agreement.
5. ADDITIONAL TERMS
5.1 You will manage your passwords. You are responsible for securely managing yourpassword(s) for access to the Software and to contact Clear Computing If you become aware of anyunauthorized access to your account.
5.2 You will accept updates. The Software may periodically be updated with tools, utilities,improvements, third party applications, or general updates to improve the Software. You agree toreceive these updates.
6. DISCLAIMER OF WARRANTIES
6.1 YOUR USE OF THE SOFTWARE AND CONTENT IS ENTIRELY AT YOUR OWN RISK.EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS." TOTHE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEAR COMPUTING, ITSAFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS ORSUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS ORIMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULARPURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NONINFRINGEMENTOF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY,RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. CLEARCOMPUTING AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THESOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT ORDESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU,ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE ORDELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
6.2 CLEAR COMPUTING, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANYREPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFYOR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
7. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENTPERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF CLEAR COMPUTING, ITSAFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BELIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE DURING THE TWELVE (12)MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, CLEAR COMPUTING, ITSAFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT,SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATINGTO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONICCOMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES,SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OFSOFTWARE OR HARDWARE THAT DOES NOT MEET CLEAR COMPUTING SYSTEMSREQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF CLEAR COMPUTING AND ITSAFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF CLEAR COMPUTING,ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE ANDITS USE.You agree to indemnify and hold Clear Computing and its Affiliates and Suppliers harmless from anyand all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out ofyour use of the Software or breach of this Agreement (collectively referred to as "Claims"). ClearComputing reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by ClearComputing in the defense of any Claims.
8. CHANGES. We reserve the right to change this Agreement at any time, and the changeswill be effective when posted on our website for the Software or when we notify you by other means.We may also change or discontinue the Software, in whole or in part. Your continued use of theSoftware indicates your agreement to the changes.
9. TERMINATION. Clear Computing may, in its sole discretion and without notice, restrict,deny, terminate this Agreement, or suspend the Software, related online services, or other ClearComputing Services effective immediately, in whole or in part, for suspicion of fraud, security, illegalactivity or unauthorized access issues to protect the integrity of the Software or our Services orsystems and comply with applicable Clear Computing policy, or if you fail to comply with thisAgreement or if you no longer agree to receive electronic communications. Upon termination youmust immediately stop using the Software or applicable services and any outstanding payments willbecome due. Any termination of this Agreement shall not affect Clear Computing’s rights to anypayments due to it. Clear Computing may terminate a free account at any time. Sections 2.2, 3through 13 will survive and remain in effect even if the Agreement is terminated.
10. EXPORT RESTRICTIONS. You acknowledge that the Software, its related website, onlineservices, and other Clear Computing Services are subject to restrictions under applicable US exportcontrol laws, including US trade embargoes and sanctions and security requirements, and applicablecountry or local laws to the extent compatible with US laws. You agree that you will comply withthese laws and regulations, and will not export, re-export, import or otherwise make availableproducts and/or technical data in violation of these laws and regulations, directly or indirectly.
11. GOVERNING LAW. New Jersey state law governs this Agreement without regard to itsconflicts of laws provisions.12. DISPUTES. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE CLEARCOMPUTING SOFTWARE OR THIS AGREEMENT WILL BE RESOLVED BY BINDINGARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims courtif your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of thisprovision; the arbitrator shall apply New Jersey law to all other matters. Notwithstanding anything tothe contrary, any party to the arbitration may at any time seek injunctions or other forms of equitablerelief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTESMUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF ORCLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BYENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THATYOU AND CLEAR COMPUTING ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT ANDTHE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TOPARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREETHAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
13. GENERAL. This Agreement, including Additional Terms below is the entire agreementbetween you and Clear Computing and replaces all prior understandings, communications andagreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction,rules that any part of this Agreement is invalid, that section will be removed without affecting theremainder of the Agreement. The remaining terms will be valid and enforceable. The United NationsConvention on Contracts for the International Sale of Goods does not apply to this Agreement. Youcannot assign or transfer ownership of this Agreement to anyone without written approval of ClearComputing. However, Clear Computing may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by Clear Computing or (c) a successor by merger.Any assignment in violation of this Section
13 shall be void. ______________________ Section BADDITIONAL TERMS AND CONDITIONS FOR CLEAR COMPUTING DESKTOP AND SERVERSOFTWAREIMPORTANT NOTICE. USE LIMITATIONS: Your license to use the Software, Add-On Productsand related Services (if any) is subject to the General End User License Agreement termsabove and the Additional Terms and Conditions below. The Additional Terms and ConditionsBELOW shall prevail over any conflict or inconsistency with the General End User LicenseAgreement terms above.1. DEFINITIONS. For purposes of this
Section B, certain capitalized words andphrases used in this Section have the meaning defined below. Other capitalized terms andtheir defined meaning are also provided embedded elsewhere within the text of thisAgreement.
1.1. “Applications” means Clear Computing Applications and Third Party Applications.
1.2. “Authorized User(s)” means any and all individuals who you designate or authorizeto access and/or modify your Software data on your behalf.
1.4. “Data Transfer” means the process of transferring or sharing, upon your authorization,your Software data with or to one or more Applications.
1.5. “Desktop” is used to refer to any and all versions or editions of Clear ComputingSoftware primarily designed for access and use on a desktop or laptop computer (e.g., TotalActivity Control.).
1.6. “Enhancement(s)” means any and all minor enrichments to the Software, such asnew or improved features, functionality, compatibility, performance, or other content or information.For clarity, Enhancements exclude Updates and Upgrades.
1.10. “Service(s)” is used in this Section B to refer to the various systems, facilitativeprocessing operations, functionality, or other features, including but not limited to supportand maintenance, or other products or promotions which may be provided or madeaccessible to you in or through the Software as a standalone or online-hosted offering.
1.11. “Software” has the meaning defined furthest above in Section A.1.1., and includesthe Total Activity Control software that is the object of this Agreement, any Clear ComputingprovidedServices, software, applications, programs, tools, and other components accessible in orthrough Total Activity Control, as well as all Updates that you may be eligible to receive based on thelicense or Subscription purchased as set forth below. For clarity, Software excludes Upgrades.
1.12. “Subscription” or “Subscription Plan” refers to the payment of fees on a monthly,quarterly, or annual basis for a license to access and use the Software or Services.
1.13. “Third Party Application(s)” means each and all products or Services developed by thirdparties that you use in or through the Software and/or authorize to access your Software data.
1.15. “Updates” means Software bug fixes and error corrections generally provided to users ofyour specific version of the Software, when-and-if they are made available. For clarity, Updatesexclude Enhancements and Upgrades.
1.16. “Upgrades” means each and all major or significant future-released versions of the full orcomplete Software. For clarity, Upgrades exclude Enhancements and Updates.
1.17. “you” and “your” as used throughout this Agreement means the individual person,or the legal entity on whose behalf such person acts, that licenses the Software andis identified by name during the Software account creation and registration process.
2. PAYING FOR YOUR SUBSCRIPTION PLAN AND ANY SERVICES. When yousubscribe to a paid Subscription Plan or any Services, you must have a valid credit card or a validdebit card with a Visa or MasterCard logo ("Card") or sufficient funds in an acceptable U.S. checkingor savings account to cover an electronic debit of the initial and monthly Subscription fee to obtain(and to maintain uninterrupted) the applicable Subscription. The information you provide must beaccurate and complete. When you subscribe and provide payment information, your Card or bankaccount will be debited (initially), and will be thereafter automatically re-debited, at the then currentSubscription rate, at the beginning of each applicable monthly, quarterly, or one-year SubscriptionPlan term ("Renewal Term") to maintain the applicable Subscription. You may notify us at any timeto cancel a Subscription. To help minimize the potential for unwanted Renewal Term charges, youshould notify us of your desire to cancel a Subscription Plan prior to the beginning of the nextRenewal Term.
3. HELP AND SUPPORT
3.1. Support Services. Support Services are technical assistance and customer serviceprovided by Clear Computing in connection with Software, Services, or Subscriptions using variousmeans, including in-product, internet, chat, e-mail, and telephone, some of which may requirepayment of additional fee(s). The terms and conditions governing the offering or provision of supportServices are subject to change as may be announced by Clear Computing from time to time. Pleaseconsult the Clear Computing website (www.clearcomputing.com) for the most up-to-date informationrelating to support and any associated fees, as well as Updates to the Software. By using ClearComputing support Services, you authorize Clear Computing to collect certain company data files inorder to provide you with a better customer support experience.
3.2. Support Services Fees. Only subscribers with (active, paid accounts in good standingand) specified Subscriptions and an included or paid support plan have access to the supportServices. If you purchased a Software license on a standalone basis by making a one-time payment,or if your particular Subscription plan does not include support, you will have to pay a fee to accessthe support Services. Availability and access to all Services, including Support Services for yourSoftware, is subject to the then-current Clear Computing discontinuation policy applicable to yourparticular Software version (see below).
4. DISCONTINUATION POLICY AND END OF SOFTWARE SUPPORT
4.1. Discontinuation Policy; Software Support End-Date; Non-Supported SystemRequirements, Services, or Software
4.1.1. Discontinuation Policy (Software End-of-Life). The Clear Computing Software is subject toIClear Computing's discontinuation policy and Clear Computing reserves the right to discontinue allsupport for the Clear Computing Software, and/or for any features, online or other Services orcontent accessible through the Clear Computing Software in accordance with its currentdiscontinuation policy. If the Clear Computing Software offers Services that require a connection to aClear Computing cloud-based service or website, such Services may expire in accordance withClear Computing’s current discontinuation policy. Once a Clear Computing Software version or itssupport is discontinued, no replacement CDs or future support or Updates, will be provided or madeavailable by Clear Computing for that particular Software version. You understand that discontinuedSoftware versions (i.e., Software versions for which support and Updates are no longer provided)may in the future be vulnerable to un-patched issues, including bugs, security, and other risks, andthat Clear Computing is not responsible for your continued use of such Software.
5.1. General. Support for the Software will be discontinued or terminated as describedabove in Section B.4. Your rights to use the Software, including your access to and use of anyServices or Subscription, may be terminated by Clear Computing immediately and without notice inaccordance with the termination provisions of this Agreement if at any time you fail to comply withany term or condition of this Agreement.