Updated on April 5, 2024

April 5, 2024

BEFORE USING CLEAROPS SERVICES (AS DEFINED BELOW), PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”).  THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER,” "you") AND CLEAROPS, INC. (“CLEAROPS,” "we," "us"). PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE CLEAROPS SERVICES AND PRODUCTS; AND/OR RECEIVE OTHER SERVICES FROM CLEAROPS.  THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND CLEAROPS, EFFECTIVE AS OF THE EARLIEST OF THE DATE OF MUTUAL EXECUTION OF THE ORDER FORM OR THE DATE IN WHICH THE CUSTOMER USES THE SERVICES. WHILE THESE TERMS ARE QUITE LONG, IT IS IMPORTANT FOR YOU TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS. FOR SPECIFIC REQUESTS OR INQUIRIES ABOUT THESE TERMS, PLEASE CONTACT US AT LEGAL@CLEAROPS.IO.

Overview

ClearOPS provides a suite of products and services that allow Customers to generate questions and responses to, and analysis of, assessments using our custom technology for the purpose of building, maintaining and managing its business operations, with a focus on data protection, cybersecurity and/ or responsible A.I. programs, as well as conduct public data research using open source intelligence and other proprietary methods of ClearOPS for the same purposes (the "Services"). The Services include machine learning models that consist of: (i) general models (“core models”) trained and tested on de-identified and anonymized question and response data provided by customers; and (ii) custom models trained and tested on Customer Data (defined below) that are specific to each Customer and may be deleted.

Account Registration and Use

2.1 Customer and its Authorized Users (as defined below) need to register for a ClearOPS account to access or use the ClearOPS Services. By registering for an account, Customer and its Authorized Users agree to these Terms, unless the parties have signed a separate agreement that supersedes. Account information must be accurate, current, and complete, and any use of the account information will be subject to ClearOPS’s Privacy Policy. Customer agrees to keep its login and contact information up-to-date so that ClearOPS may send notices, statements, and other information by email or through the Service. Customer must ensure that any passwords, and other access credentials (such as two factor authenticators) for the ClearOPS Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to ClearOPS Services. Customer will be responsible for any and all actions taken by its Authorized Users for its accounts, passwords or access credentials. Customer must notify ClearOPS immediately of any breach of security or unauthorized use of its account. Accounts are granted to one specific individual and must not be shared with other individuals. You may request a new account for any Authorized User. You may only use the Services if you are 18 years of age or older, able to legally agree to these Terms, and not a direct competitor to ClearOPS Services (or developing any competing and/or similar products or services).    

2.2   An “Authorized User” is defined as an individual person (e.g. employee, contractor, agent, service provider, customer or client of a Customer) who is registered and permitted by a Customer to use the ClearOPS Services subject to these Terms and any restrictions in an applicable Subscription Plan (as defined below). Customer shall ensure that its Authorized Users comply with these Terms and Customer is responsible for all actions of its Authorized Users. All restrictions, permissions and licenses referred to herein apply to both Customer and its Authorized Users.

Licenses & Memberships

3.1   Limited License. Subject to these Terms, ClearOPS grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable license to use and access the ClearOPS Services for its business purposes as expressly permitted in these Terms. Your use and access to the Services are subject to any limitations set forth in an applicable order form or online plan (whether paid or free, collectively “Subscription Plan”).

3.2   General Restrictions. Customer and its Authorized Users must not (and must not allow anyone else to):

A. Rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the ClearOPS Service to a third party (except Authorized Users);

B. Incorporate the ClearOPS Service (or any portion of such) into, with, or use it with or to provide, any site, product, or service, other than as specifically permitted in a separate agreement signed by both parties;

C. Publicly disseminate information regarding the performance of the ClearOPS Service (which is deemed ClearOPS’s Confidential Information);

D. Modify or create a derivative work of the ClearOPS Service or any portion of it;

E. Reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any ClearOPS Service, except to the extent expressly permitted by applicable law and then only with advance notice to ClearOPS;

F. Break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the ClearOPS Service, or configure the ClearOPS Service (or any component thereof) to avoid sending events or transactions or to otherwise avoid incurring fees;

G. Distribute any portion of the ClearOPS Service excepted as permitted herein;

H. Access the ClearOPS Service for the purpose of building a competitive product or service or copying its features or user interface;

I. Use the ClearOPS Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without ClearOPS’s prior written consent;

J. Remove or obscure any proprietary or other notices contained in the ClearOPS Service, including in any reports or output obtained from the ClearOPS Service;

K. Use or permit the Services to be used for any illegal or misleading purpose, or any manner inconsistent with these Terms; or

L. Conduct a vulnerability assessment or any other type of security assessment on our application without providing ClearOPS with the results of any such assessment.  

3.3   Beta Releases and Free Access Subscriptions. ClearOPS may provide Customer with a ClearOPS Service for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage ClearOPS Services, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Subscription Plan) and supersedes any contrary provision in these Terms. ClearOPS may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in these Terms, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH CLEAROPS WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. ClearOPS makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. ClearOPS may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in ClearOPS’s sole discretion, without liability.

3.4       Use of Public Data. ClearOPS does not have any control over the data contained in websites whose links appear on ClearOPS Services, nor does ClearOPS screen the content on those websites for accuracy or otherwise. ClearOPS disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or data found on the internet or otherwise and displayed in its Services. ClearOPS disclaims any responsibility for the deletion, failure to store, mis-delivery, or untimely delivery of any information or material. ClearOPS disclaims any responsibility for any harm resulting from downloading, linking to or accessing any information on the internet through ClearOPS. Under no circumstances shall ClearOPS be liable to Customer or any Authorized User on account of their use or misuse of or reliance on ClearOPS' display or reporting on public data or open source intelligence. Unless you have entered into an express written contract with ClearOPS to the contrary, you may not copy, duplicate, save, print, sell, re-sell, publish or otherwise disseminate any portion of the public data reporting compilation format, code or source information provided by the ClearOPS Services for any purpose other than your own internal purposes. Your breach of this foregoing provision will subject you to liquidated damages in the amount of $100,000.00 US, in addition to reasonable attorney's fees, costs and actual damages incurred by ClearOPS for breach of this provision. ClearOPS is not a consumer reporting agency and data provided by ClearOPS does not constitute a consumer report as that term is defined in the Fair Credit Reporting Act (FCRA), 15 U.S.C.A. sec 1681 et seq. Before using any data obtained from any source as a factor in establishing a consumer's eligibility for credit, insurance or employment you should consult with your attorney for uses that might be covered by FCRA. ClearOPS is merely a conduit for public information and is NOT the ultimate custodian of any public records. All errors or complaints should be addressed to the data custodian.

3.5 Marketplace Members. As a community of experts, we expect a certain level of professionalism. To apply for membership in the Security Expert Marketplace, you may do so through the website. Acceptance as a member, or termination of your membership, is at our sole discretion. As a member, you may use our logo, unaltered, on your website and other promotional material stating that you are a member of the Security Expert Marketplace. By becoming a member, you agree that we may process your personal information in connection with the membership (so, name, email, title, company, address). From time to time, we may post and update community guidelines, which you agree to by becoming a member.

Ownership and Feedback

4.1   Customer Data and Licenses.

A. Definition of Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the personal information used to set up an account in ClearOPS, files uploaded by Customer about Customer’s (or its customers’ or third parties’) privacy, cybersecurity and business operations, including assessments and questionnaires, and stored in the Customer’s knowledge base or private library, Customer’s edits and inputs to assessments and questionnaires, Inputs (defined below), Outputs (defined below) and data about Customer’s second or third parties that Customer inputs or uploads into the ClearOPS Service (excluding any ClearOPS intellectual property) (the “Customer Data”).

B. Customer License to ClearOPS. Customer and its Authorized Users hereby grant to ClearOPS a non-exclusive, worldwide, royalty-free right and license to collect, process, use, copy, store, transform, transmit, modify, decrypt and create derivative works of the Customer Data to the extent necessary to provide the ClearOPS Service as provided in these Terms. Customer and its Authorized Users hereby grant to ClearOPS a non-exclusive, worldwide, royalty-free right and license to use Customer Data to train, re-train, test or fine-tune a customer machine learning model for Customer’s exclusive use.

C. Customer Training Data; Additional Licenses. Upon using our pre-population Services and subject to Customer’s rights, Customer grants ClearOPS and its successors a perpetual, irrevocable, worldwide, royalty free, nonexclusive, sublicensable right and license to use de-identified or anonymized, cleaned Customer Data for the purpose of improving the Services, including as training, re-training, testing data or fine-tuning for our core models. FOR THE AVOIDANCE OF DOUBT, CUSTOMER DATA IS NOT USED FOR TRAINING, RE-TRAINING, TESTING OR FINE-TUNING A PUBLIC LLM (LIKE CHATGPT). Any Customer Data used as training, re-training, fine-tuning or testing data by ClearOPS is for ClearOPS privately developed or hosted machine learning models.

D. Express Permissions. Customer expressly authorizes ClearOPS to use and process Customer Data (including any Confidential Information contained therein) as described in these Terms and in the ClearOPS Privacy Policy, which provides for, but is not limited to, delivering and sharing of policies, assessments, artifacts, templates, evidence or other documents as directed by Customer’s use of the ClearOPS Services with third parties (e.g. individuals/legal entities) that Customer authorizes. These licenses and permissions extend to our affiliates and trusted third parties with whom we work.

E. Inputs and Outputs. Upon Customer’s instruction and selection, ClearOPS will enable Customer’s use of LLMs that support Customer’s text, image, video or audio inputs for natural language processing through such LLM (“Inputs”) and corresponding outputs generated by the LLM as a response to the Input (“Outputs”). As between you, ClearOPS and any third-party LLM provider, you (a) retain all ownership rights in Input and (b) own all Output. If the third-party LLM provider assigns rights to ClearOPS, we hereby assign to you all our right, title, and interest, if any, in and to Outputs. As with any LLM-generated Output, another customer may obtain the same or similar output because their input generated the same prediction or inference as yours, except their output cannot contain your Company Data since they do not have access to that (unless you gave them access outside of ClearOPS).

4.2   Aggregate/Anonymous Data. Customer agrees that ClearOPS has the right to generate aggregate or anonymous services and usage data and that aggregate or anonymous services and usage data is owned by ClearOPS, which ClearOPS may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve ClearOPS’s products and services and to create and distribute reports and other materials). For clarity, ClearOPS will only disclose aggregate or anonymous services and usage data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or end users, and that is stripped of all persistent or personal identifiers. Customer is not responsible for ClearOPS’s use of aggregate or anonymous services and usage data.

4.3   ClearOPS Data & Intellectual Property. This is a subscription agreement for access to and use of the ClearOPS Services. Customer acknowledges that it is obtaining only a limited right to use the ClearOPS Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its Authorized Users or end users) under these Terms. Customer agrees that ClearOPS (and its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all ClearOPS Services, and all related or underlying documentation, technology, code, compilations, know-how, logos, templates, anything delivered as part of support of other services, and any updates, modifications, or derivative works of any of the foregoing (all of which is deemed ClearOPS’s Confidential Information) and that ClearOPS reserves any licenses not specifically granted in these Terms. The ClearOPS Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any ClearOPS Service and that ClearOPS at its option may make updates, bug fixes, modifications or improvements to the ClearOPS Service from time-to-time. ClearOPS analyzes the effectiveness, accuracy and consistency of the Services by comparing the output of our machine learning models (including machine learning models provided by third parties) to intended or supplied outputs generated by us and Customers. As between Customer and ClearOPS, ClearOPS owns the results of such analysis and the corresponding adjustments made to its models.

4.4   Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to ClearOPS (collectively, “Feedback”), Customer hereby grants ClearOPS a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in these Terms limits ClearOPS’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

Privacy & Security

5.1   ClearOPS Privacy Policy.  The information you provide to us or that we collect will be used as described in these Terms and in the ClearOPS Privacy Policy. Please carefully read the ClearOPS Privacy Policy as it contains important details about our collection, use and retention of information.

5.2   Security. ClearOPS is committed to establishing and maintaining a “Security Program” that has appropriate organizational, administrative and technical safeguards, which take into account relevant frameworks, that: (i) ensures the integrity, security and confidentiality of confidential information; (ii) protects against threats and hazards to the security of confidential information, including, without limitation, securing connections between ClearOPS’s systems and Customer’s systems; (iii) ensure that such safeguards shall be no less rigorous than those maintained by ClearOPS for its own data and information of a similar nature; and (iv) ensure compliance with the provisions of applicable data privacy and cybersecurity laws and regulations.

Customer Obligations

6.1  Customer agrees to: (i) maintain a legally-adequate privacy policy on its website(s); (ii) obtain all necessary rights, releases, and consents to allow Customer Data or other information (including any personal information) to be collected, used, and disclosed in the manner contemplated by these Terms and to grant ClearOPS the rights and licenses set out in these Terms; (iii) use the ClearOPS Service in compliance with any ClearOPS’s posted Acceptable Use Policy; and (iv) not take any action that would cause ClearOPS or the ClearOPS Service to become subject to any third-party terms (including open source license terms).

6.2  Customer represents and warrants that the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. Customer further represents and warrants that its collection and use of any personal information or data provided to ClearOPS complies with all applicable data protection laws, rules, and regulations. If Customer receives any take down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the ClearOPS Service; and (ii) notify ClearOPS. If ClearOPS receives any take down requests or infringement notices related to Customer Data, ClearOPS may respond in accordance with its policies, and will notify and consult with the Customer on next steps.

Payment Terms

7.1   Subscription Plan. The prices, features, and options of the ClearOPS Services depend on the Subscription Plan selected by Customer (including any usage or overage fees). ClearOPS does not guarantee that your particular Subscription Plan will be offered indefinitely. We reserve the right to change the prices, features, or options included in a particular Subscription Plan without notice, provided that such changes shall not take effect until your next applicable subscription term.

7.2   Recurring Charges and Upgrades. By signing up for a Subscription Plan, Customer authorizes ClearOPS to charge Customer’s payment method on a recurring basis (e.g. monthly, quarterly, or yearly depending on Customer’s Subscription Plan) without an invoice. Customer expressly authorizes ClearOPS to charge its payment method (such as a credit card) for the applicable subscription charges, any usage or overage charges, and any and all applicable taxes and fees. Such authorization is effective until the end of the Subscription Term and any applicable renewal term, or until Customer cancels all of its subscriptions.  If Customer exceeds their subscription plan’s usage limits, Customer will be automatically upgraded into the next highest Subscription Plan and Customer expressly acknowledges and agrees that it will pay for the upgraded Subscription Plan. All upgrade fees and charges are non-refundable, even if Customer did not use the full usage allotment of the applicable Subscription Plan.

7.3   Taxes. ClearOPS’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of ClearOPS. Customer will not deduct any applicable taxes from the payments to ClearOPS, except as required by law. If such deduction is required by law, Customer will increase the amount payable as necessary so that after making all required deductions and withholdings, ClearOPS receives and retains (free from any such liabilities) an amount equal to the amount it would have received had no such deductions or withholdings been made.

7.4   Auto-renewals and Trials. IF YOUR ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD AND YOU HAVE PROVIDED A METHOD OF PAYMENT TO CLEAROPS FOR THE SERVICES, CLEAROPS MAY CHARGE YOU AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS YOU NOTIFY CLEAROPS THAT YOU WANT TO CANCEL YOUR SUBSCRIPTION.

7.5   Purchase Orders. Customer agrees that it will pay all amounts owed, including recurring charges, without requiring any purchase orders or reference(s) to purchase order numbers.

7.6   No Refunds. Subscription and usage or overage fees (and any other fees associated with the services, including higher subscription fees for upgrades) are non-refundable and non-creditable, except where required by law. ClearOPS subscriptions may be cancelled, and such cancellations take effect at the end of your then-current subscription term (for example, if you are on a paid monthly subscription the cancellation will take effect the following month, but if you are on a paid yearly subscription the cancellation will take effect the following year). Once your cancellation is effective, you may be downgraded to a free plan and will lose subscription features and functionality. If you don’t pay for your subscription(s) on time, we reserve the right to suspend you or remove subscription features. A monthly subscription or an annual subscription, together, are referred to herein as “Subscription Term.”

7.7   Late Fees & Collection Costs. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law. You agree to reimburse ClearOPS for any costs or expenses incurred by ClearOPS to collect amounts that remain unpaid after the due date. Amounts due to ClearOPS may not be withheld or offset by you against amounts due for any reason.

Terms and Termination

8.1  Term.   These Terms are effective until all Subscription Terms for the ClearOPS Services have expired or are terminated as expressly permitted herein.  

8.2   Subscription Term and Renewals. Customer agrees to pay applicable fees for the entire Subscription Term. Customer can cancel or terminate a Subscription Term at any month-end provided Customer is current on all payments. If no subscription start date is specified on the applicable order form, the subscription starts when Customer first obtains access to the applicable ClearOPS Service. Each Subscription Term will automatically renew monthly (e.g. if Customer initially has an annual plan then the subscription will renew on a monthly basis after expiration of the initial 12-month term). Pricing for any Subscription Term renewal, new order form, or order form changes will be at ClearOPS’s then-applicable rates.

8.3   Suspension of Service. ClearOPS may suspend Customer’s access to the ClearOPS Services if: (i) Customer’s account is overdue; (ii) Customer has exceeded its service allocations / service limits; or (iii) Customer has attempted to insert malicious prompts or solicit malicious outputs. ClearOPS may also suspend Customer’s access to the ClearOPS Services or remove Customer Data if it determines that: (a) Customer has breached any portion of these Terms, or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the ClearOPS Service. ClearOPS will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period. However, unless these Terms have been terminated, ClearOPS will cooperate with Customer to promptly restore access to the ClearOPS Service once we verify that Customer has resolved the condition requiring suspension.

8.4   Effect of Termination. Upon any expiration or termination of these Terms or an order form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable ClearOPS Service; (b) delete (or, at ClearOPS’s request, return) any and all copies of any ClearOPS code, documentation, passwords or access codes, and any other ClearOPS Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable ClearOPS Service will cease and ClearOPS may delete the Customer Data at any time after 30 days from the date of termination. Any unpaid amounts due from Customer must be paid immediately by Customer. Except where these Terms specify an exclusive remedy, all remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

8.5   Survival. The following Sections survive any expiration or termination of these Terms: (Account Registration and Use); (General Restrictions); (Beta Releases and Free Access Subscriptions); (Use of Public Data); (Ownership and Feedback); (Payment Terms); (Term and Termination); (Warranties and Disclaimers); (Indemnification Obligations); (Limitations of Liability); (Third-Party Products and Integrations); and (General).

Confidential Information

9.1  Confidential Information. “Confidential Information” means (a) for ClearOPS, the ClearOPS Services, instructional videos, tutorials and documentation; (b) for Customer, Customer Data; (c) any other information of a party that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the recipient), or that due to the nature of the information the recipient would clearly understand it to be confidential information of the disclosing party; and (d) the specific terms and conditions of these Terms, and any amendment and attachment thereof, between the parties.

9.2 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by these Terms; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under these Terms. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for ClearOPS, includes providing the Services and sharing with the subcontractors referenced herein) provided that the party remains responsible for any recipient’s compliance with the terms of this confidentiality section and that these recipients are bound to confidentiality obligations no less protective than these Terms.

9.3 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

9.4 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. For any breach of this confidentiality section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

Warranties and Disclaimers

ALL CLEAROPS SERVICES, VIDEOS, DOCUMENTATION, AND SITES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER CLEAROPS NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CLEAROPS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT CLEAROPS SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA OR CLEAROPS RESULTS (INCLUDING, WITHOUT LIMITATION, ANY MODEL OUTPUT) WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT CLEAROPS SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. CLEAROPS DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. CLEAROPS WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-CLEAROPS SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, OR THE USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THESE TERMS. THE DISCLAIMERS IN THIS SECTION 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

Indemnification Obligations

11.1   Indemnification by ClearOPS.

A      ClearOPS will defend Customer from any third party claim alleging that Customer’s use of the ClearOPS Serfices as contemplated in this Agreement infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer from and against any damages and costs awarded against them, or agreed in settlement by ClearOPS, resulting from such IP Claim.

B    ClearOPS will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the ClearOPS Services by Customer or its Authorized Users; (ii) modification of the ClearOPS Services by anyone other than ClearOPS or its representatives; (iii) or the combination, operation or use of the ClearOPS Services with other data, hardware, or software not provided by ClearOPS.

C     If Customer’s use of the ClearOPS Services results (or in ClearOPS’ opinion is likely to result) in an IP Claim, ClearOPS may at its own option and expense: (i) procure for Customer the right to continue using the ClearOPS Services; (ii) replace or modify the infringing components of the ClearOPS Services to make them non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable as determined by ClearOPS, then either Customer or ClearOPS may terminate Customer’s Order Form and/or subscription to the ClearOPS Services, and in that case ClearOPS will refund Customer, on a pro-rated basis, any pre-paid Fees that the Customer has previously paid ClearOPS for the corresponding unused portion.

D     This section 11.1 states ClearOPS’s entire liability, and Customer’s exclusive remedy, with respect to an IP Claim.

11.2     Indemnification by Customer. Customer will defend, indemnify, and hold harmless ClearOPS against any third-party claim, suit, or proceeding against ClearOPS arising out of the Customer’s intentional misuse of the ClearOPS Services, including without limitation:

A     claims by Authorized Users, as well as by Customer’s own customers;

B      claims which, if true, would constitute a breach of Customer’s obligations in this Agreement; and

C      claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the ClearOPS Services through Customer’s account.

11.3.     Mutual Indemnity – Data Incidents.

(a)      Each Party (the “Offending Party”) will defend and indemnify the other Party against any third-party claim, suit, or proceeding arising out of or relating to a Data Incident (defined below) caused by the act or omission of the Offending Party or any of its agents, subcontractors, or employees (a “Data Claim”). For clarity, Data Claims include government enforcement actions.

(b)     For the purposes of this section 11.3, a “Data Incident” is any (i) unauthorized disclosure of, access to, or use of Customer Data, or (ii) unauthorized disclosure of, access to, or use of ClearOPS Confidential Information. Data Incidents include, without limitation, such events caused by Customer, by ClearOPS, by Authorized Users or other Customer’s customers, by attackers, or by any other third party.

9.4.     General Indemnification Procedures.

A      In the event of a potential indemnity obligation under any section of this Article 11, the indemnified Party in each case will:

(i)         promptly notify the indemnifying Party in writing of the claim;

(ii)       allow the indemnifying Party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying Party’s sole cost and expense; and

(iii)      upon request of the indemnifying Party, provide all necessary cooperation at the indemnifying Party’s expense.

(b)     Failure by the indemnified Party to notify the indemnifying Party of a claim will not relieve the indemnifying Party of its obligations, however, the indemnifying Party will not be liable for any litigation expenses that the indemnified Party incurred prior to the time when notice is given (or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying Party in accordance with this section).

(c)      The indemnifying Party’s obligations set forth in this Article 11 include, without limitation:

(i)         settlement at the indemnifying Party’s expense and/or payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and

(ii)       reimbursement of reasonable legal fees incurred by the indemnified Party before indemnifying Party’s assumption of the defense (but not legal fees incurred thereafter).

(d)     Notwithstanding section 9.4(c), the indemnifying Party may not settle any claim that would bind the indemnified Party to any positive obligation (other than payment covered by the indemnifying Party) or require any admission of fault by the indemnified Party, without the indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed.

(e)      Any indemnification obligation under this Article 9 will not apply if the indemnified Party settles or makes any admission with respect to a claim without the indemnifying Party’s prior written consent

Limitations of Liability

12.1   Disclaimer of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CLEAROPS OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.

12.2   Cap on Damages. CLEAROPS’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CLEAROPS FOR THE APPLICABLE CLEAROPS SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, CLEAROPS’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).

12.3   Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD, INTENTIONAL MISREPRESENTATION OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THESE TERMS, THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

12.4   Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, ANY CLEAROPS SERVICE OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Third Party Products and Content

ClearOPS may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. ClearOPS is not responsible for these third-party products or content and just by linking does not mean we endorse them. ClearOPS makes no representations or warranties as to the quality, suitability, functionality, or legality of any third-party products or third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such. Always check the security of any service provider. Customer agrees that ClearOPS is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third-party products or third-party content.

General

14.1   Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign these Terms without the advance written consent of the other party, except that ClearOPS may assign these Terms without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign these Terms except as expressly authorized under this Section will be void.  

14.2   Notices. Any notice or communication under these Terms must be in writing. Customer must send any notices under these Terms (including breach notices) to ClearOPS, in English, at the following address, leal@clearops.io, and include “Attention: Legal Department” in the subject line. ClearOPS may send notices to the email addresses on Customer’s account or, at ClearOPS’s option, to Customer’s last-known postal address. ClearOPS may also provide operational notices regarding the ClearOPS Service or other business-related notices through conspicuous posting of the notice on ClearOPS’s website or the ClearOPS Service. Each party consents to receiving electronic notices. ClearOPS is not responsible for any automatic filtering Customer or its network provider may apply to emails.  

14.3   Subcontractors. ClearOPS may use subcontractors and permit them to exercise the rights granted to ClearOPS in order to provide the ClearOPS Services and related services. These subcontractors may include, for example, ClearOPS’s hosted service providers. However, subject to all terms and conditions of these Terms, ClearOPS will remain responsible for: (i) compliance of its subcontractors with these Terms; and (ii) the overall performance of the ClearOPS Services if and as required under these Terms.  

14.4   Subpoenas. Nothing in these Terms prevents ClearOPS from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but ClearOPS will use good faith efforts to notify Customer where permitted to do so.  

14.5   Independent Contractors. The parties to these Terms are independent contractors, and these Terms do not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. Non-parties do not benefit from and cannot enforce these terms. There are no third-party beneficiaries to these Terms. Customer must not represent to anyone that it is an agent of ClearOPS or is otherwise authorized to bind or commit ClearOPS in any way without ClearOPS’s prior written authorization.  

14.6   Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under these Terms (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.  

14.7   Export Control. Customer acknowledges that the ClearOPS Services, documentation, website, and all related products, information, technology, and software are subject to export control laws and regulations of the United States (including, but not limited to, the US Export Administration Act, sanction regulations from the U.S. Department of Treasury Office of Foreign Assets Control “OFAC”), and of other jurisdictions. Customer is responsible for obtaining any required export or import authorizations for use of the ClearOPS Services. Customer represents and warrants that it, its affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the ClearOPS Service in violation of any U.S. export embargo, prohibition or restriction.  

14.8   MANDATORY ARBITRATION; WAIVER OF CLASS ACTIONS. IF YOU ARE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS: We Both Agree to Arbitrate. You and ClearOPS agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability, or validity.  Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate within 30 days of first registering your account by contacting us at legal@clearops.io. Arbitration Procedures and Fees. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, New York (NY), or any other location we agree to. The AAA rules will govern payment of all arbitration fees.  Exceptions to Agreement to Arbitrate. Either you or ClearOPS may assert claims, if they qualify, in small claims court in New York or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in New York County, New York to resolve your claim. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed. If this specific paragraph is held unenforceable, then the entirety of this “Mandatory Arbitration Provisions” section will be deemed void.  

14.9   Amendments; Waivers. Any modification or amendment to these Terms must be made in writing and executed by an authorized representative of each party. However, if ClearOPS modifies these Terms during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal. In addition: (a) If ClearOPS launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use; (b) changes to any terms will take effect immediately for Free Access Subscriptions; and (c) during a Subscription Term, ClearOPS may update ClearOPS’s Security Statement, Privacy Policy and Acceptable Use Policy from time-to-time to reflect process improvements or changing practices, and these changes will take effect immediately from the date of posting so long as they do not substantially diminish Customer’s rights or create substantial additional Customer obligations during a Subscription Term, in which case Customer may terminate is subscription upon becoming aware of the unhappy changes or requirements. ClearOPS’s documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term ClearOPS may update the documentation to reflect best practice with the relevant ClearOPS Service, provided that these changes do not substantially diminish Customer’s rights or create substantial Customer obligations. In the event of any conflict between these Terms and any order form, these Terms will take precedence unless otherwise expressly provided. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms. Waivers must be made in writing and executed by an authorized representative of the waiving party. The waiver by either you or ClearOPS of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.  

14.10   Severability. If any provision of these Terms is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Terms may otherwise remain in effect.  

14.11   No Third-Party Rights. Nothing in these Terms confers on any third party the right to enforce any provision of these Terms. Customer acknowledges that each order form only permits use by and for the legal entity or entities identified in the order form(s) as the Customer, and not any Customer affiliates.  

14.12   Entire Agreement. These Terms represents the parties’ complete and exclusive understanding relating to the subject matter of these Terms. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the ClearOPS Service or any other subject matter covered by these Terms. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.  

14.13   Governing Law & Venue. These terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, U.S.A., without reference to its choice of law rules to the contrary. The parties agree to submit to the exclusive jurisdiction of, and venue in the federal or state court of competent jurisdiction located in New York, NY, U.S.A.  

14.14   Language and Translations. ClearOPS may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.  

14.15   How to Contact Us. If you have any questions about these Terms, please contact us at legal@clearops.io.

‍

‍