Terms and Conditions
These beta agreement terms and conditions apply to any document or agreement (“Agreement”) made by and between ClearCare, Inc. (“ClearCare”), a Delaware corporation, located at 150 Spear Street, Suite 1550, San Francisco, CA 94105, and its customer (“Customer”) that incorporates these beta agreement terms and conditions by reference. References to the “Agreement” include these terms and conditions. The Agreement describes the terms and conditions under which Customer may access and use certain features, technologies and services that are not yet generally commercially available (“Beta Service”). ClearCare and Customer are sometimes referred to collectively as the “Parties” and each individually as a “Party.”
- “Beta Materials” means any hardware, software, specifications or other technical documentation related to a specific Beta Service that may be provided to Customer by ClearCare.
- “Beta Use” means the testing and evaluation of a specific Beta Service by Customer and certain other ClearCare customers.
- “Beta Use Information” means all information relating to Customer’s use, testing or evaluation of a Beta Service or any related Beta Materials, including all observations or information regarding the performance, features and functionality of a Beta Service or any related Beta Materials.
- “Feedback” means all feedback, suggestions, and ideas that Customer provides to ClearCare or its affiliates concerning improvements or enhancements to a Beta Service or any related Beta Materials.
- “Confidential Information” means all nonpublic information disclosed by ClearCare, its affiliates, or the agents of any of the foregoing to Customer, its affiliates, or the agents of any of the foregoing, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (a) nonpublic information relating to ClearCares’ or its affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (b) third-party information that ClearCare or its affiliates is obligated to keep confidential, (c) Beta Materials, Beta Use Information, Feedback, or any other information about or involving (including the existence of) any of the Beta Uses or Beta Services, and (d) the nature, content and existence of this Agreement and any discussions or negotiations between the Parties. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) can be shown by documentation to have been independently developed by the receiving party without reference to any Confidential Information.
- PARTICIPATION IN BETA USES.
- Generally. ClearCare grants Customer a limited, nonexclusive, non-transferable, royalty-free, revocable license to do the following during the term of the applicable Beta Use: (a) access and use the Beta Service solely for internal evaluation purposes; and (b) install, copy, and use any related Beta Materials solely as necessary to access and use the Beta Service in the manner permitted by this Agreement. After the conclusion of a Beta Use, Customer will not have any further right to use the applicable Beta Service, and if ClearCare releases a generally available version of the Beta Service, Customer’s use of the generally commercially available version will be subject to separate terms and conditions. However, ClearCare does not guarantee that any Beta Service will ever be made generally commercially available, or that any generally commercially available version will contain the same or similar functionality as the version made available by ClearCare during the Beta Use. ClearCare may modify the permitted use of or suspend Customer’s access to any Beta Service at any time and for any reason. Beta Services also may be unavailable or their performance may be negatively affected by scheduled maintenance. No service levels or other uptime guarantees apply to the Beta Services. ClearCare will use reasonable efforts to notify Customer in advance of scheduled maintenance, but ClearCare is unable to provide advance notice of unscheduled or emergency maintenance.
- Restrictions and Limitations. Customer will not:
- allow access to any Beta Service or Beta Materials by any third party other than Customer’s employees and contractors who (i) have a need to use or access the Beta Service or Beta Materials in connection with Customer’s internal evaluation activities and (ii) have executed written nondisclosure agreements obligating them to protect the confidentiality of the Beta Service and Beta Materials;
- use any Beta Service or Beta Materials in violation of any Policies;
- violate any usage limits for a Beta Service that ClearCare may communicate to Customer; or
- otherwise access or use any Beta Service, or install, copy or use any Beta Materials, in any manner or for any purpose not expressly permitted by this Agreement.
CUSTOMER MAY NOT SHARE, POST, DISTRIBUTE OR RESELL ANY OF THE BETA MATERIALS, INCLUDING BUT NOT LIMITED TO, THE IDENTIFY OR ANY INFORMATION PERTAINING TO ANY CAREGIVERS.
- Beta Use Information and Feedback. In consideration of the rights granted in this Agreement, Customer will provide Beta Use Information, when and in the form reasonably requested by ClearCare. ClearCare will have a perpetual and irrevocable right to use, evaluate and otherwise exploit all Beta Use Information for its own purposes. Customer will not use any Beta Use Information except for its internal evaluation purposes. Customer hereby grants ClearCare a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into its product offering, or otherwise exploit, any Feedback provided by Customer. ClearCare may use the Feedback without accounting or compensation to Customer. Customer will not provide any Beta Use Information or Feedback unless it has all rights necessary to do so.
- TERM AND TERMINATION.
- Term. The term of each individual Beta Use will be specified by ClearCare, but will automatically terminate upon the release of a generally commercially available version of the applicable Beta Service. The term of this Agreement will commence on the date the last Party signs the Agreement and will continue until terminated pursuant to Section 3.2.
- Termination. Either Party may terminate Customer’s participation in an individual Beta Use, or this Agreement entirely, at any time for any reason upon notice to the other Party. Upon termination of this Agreement: (a) all rights and licenses granted to Customer in this Agreement will immediately terminate; (b) Customer will immediately return or, if instructed by ClearCare, destroy all Beta Materials or any other confidential or proprietary information of ClearCare or its affiliates related to any Beta Service or this Agreement; and (c) the termination of this Agreement shall not affect a Party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the provisions concerning confidentiality, limitation on liability and the warranty disclaimers).
- Use and Disclosure. The Customer shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information for any purpose outside the scope of this Agreement, (ii) use any Confidential Information solely to perform this Agreement or exercise rights hereunder, and (iii) limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Customer containing protections no less stringent than those herein. If the Parties have executed a separate non-disclosure agreement (the “NDA”) and there is a conflict between the terms of the NDA and the terms of this Section 4.1, the terms of the NDA will control.
- Publicity. Customer shall not issue any press release or public statement regarding this Agreement or any Beta Use, Beta Service or Beta Materials unless ClearCare has approved in writing the time, form and content of the information to be disseminated to third parties or the public.
- DISCLAIMER OF WARRANTIES.
THE BETA SERVICES AND BETA MATERIALS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, CLEARCARE IS PROVIDING THE BETA SERVICES AND BETA MATERIALS TO COMPANY “AS IS.” CLEARCARE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES OR BETA MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED MATERIALS THAT STATE OTHERWISE, CLEARCARE DOES NOT WARRANT THAT THE BETA SERVICES OR BETA MATERIALS WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
CLEARCARE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO PROVIDING BETA SERVICES IN ANY GEOGRAPHIC AREA AND MAY DISCONTINUE SERVICE IN ANY LOCATION AT ANYTIME WITHOUT ADVANCE NOTICE.
- LIMITATION OF LIABILITY.
- Limitation of Liability. IN NO EVENT SHALL CLEARCARE’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100), NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
- Consequential Damages Waiver. IN NO EVENT WILL CLEARCARE HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, EVEN IF CLEARCARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
Except for those limited rights expressly granted in Section 2.1, ClearCare and its licensors retain all right, title and interest in and to the Beta Services and the Beta Materials, including all related intellectual property rights. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. This Agreement further controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing who take their rights hereunder. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except that ClearCare may assign and delegate this Agreement pursuant to a transfer of all or substantially all of ClearCare’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to and waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of California, without regard to California conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in San Francisco, California. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement and all expressly referenced documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications.