Terms and Conditions - Insights

ClearCare, Inc.
Insights Agreement
Terms and Conditions

These 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 terms and conditions by reference.  References to the “Agreement” include these terms and conditions.  The effective date of the Agreement is referred to herein as the “Effective Date”.

1.   DEFINITIONS.

1.1   “Accessible Data means the portion of the Company Data that can be accessed and manipulated by the Modes of Access, as more fully identified or described on Schedule A.

1.2   “ClearCare Insights Web Interface means a ClearCare Insights interactive web application available at a URL designated by ClearCare.

1.3   “Company Data means all electronic data or information submitted by Company to the Product Offering.

1.4   “Confidential Information means any non-public information of either of the parties disclosed under this Agreement that the recipient knows or reasonably should know is confidential to the discloser.

1.5   “Insights Technology means (a) the ClearCare Insights Web Interface and its underlying software and (b) ClearCare’s proprietary software that is integrated with or used in connection with a Third Party Hosting Service Web Interface or a Third Party Hosting Service API or JDBC to enable access and analysis of Accessible Data.

1.6   “JDBC means Java Database Connectivity, an application programming interface that enables a software application to access and display the Accessible Data.

1.7   “Modes of Access means the following modes of accessing the Accessible Data, to the extent that ClearCare, in its discretion but subject to Section 2.7, makes such modes of access available to Company under this Agreement: Third Party Hosting Service Web Interface; Third Party Hosting Service API; JDBC and ClearCare Insights Web Interface.

1.8   “Product Offering means ClearCare’s SaaS product offering.

1.9   “Third Party Hosting Service Web Interface means an interactive web application provided by a third party hosting service (such as Amazon AWS) hosting Accessible Data (available at a third party website).

1.10   “Third Party Hosting Service API means an application programming interface provided by a third party hosting service (such as Amazon AWS) hosting Accessible Data that enables a software application to access and display the Accessible Data.

2.   MODES OF ACCESS.

2.1   Modes of Access.  Subject to the terms and conditions of this Agreement, ClearCare shall make one or more Modes of Access available to Company pursuant to this Agreement during the term of this Agreement.  Company may use such Modes of Access solely for the purpose of accessing, analyzing and receiving the Accessible Data for internal business purposes.  Company acknowledges that use of certain Modes of Access may be subject to third party terms and conditions and third party privacy policies, and Company agrees to be bound by such third party terms and conditions and third party privacy policies as a condition of using the Modes of Access.  In addition, Company acknowledges that ClearCare is not responsible for any third party components or systems that are part of the Modes of Access.

2.2   Accessible Data.  Subject to the terms and conditions of this Agreement, Company hereby grants to ClearCare a right and license to access and use the Accessible Data in connection with the performance of this Agreement.

2.3   Authorized Users. Company shall identify to ClearCare the Company employees that will be provided password protected access to the Modes of Access (the “Authorized Users”). For any prospective Authorized User that is not a Company employee, Company shall, prior to allowing the prospective Authorized User access to the Modes of Access, have the person or entity sign an agreement with Company containing an equivalent level of protection for ClearCare and its intellectual property as this Agreement (the “Insights Access Terms”).  Without limitation, the Insights Access Terms must contain provisions that (1) provide the employee may only use the Modes of Access solely for purposes permitted in Section 2.1 and only for the benefit of the Company, (2) disclaim all express and implied warranties on behalf of ClearCare, (3) disclaim and exclude all liability on the part of ClearCare for direct, indirect, consequential, incidental and special damages, (4) prohibit the copying, modification, reverse engineering, decompiling and disassembly of ClearCare’s software, and (5) the prospective Authorized User’s access to the Modes of Access will terminate upon any termination, expiration or cancellation of this Agreement.  Company is responsible for compliance by each Authorized User with the terms of this Agreement and the Insights Access Terms.

2.4   Restrictions.  Use of the Modes of Access is subject to any restrictions indicated in Schedule A, which may include, without limitation, restrictions on the number of queries that may be made using the Modes of Access and restrictions on the number of Authorized Users.

2.5   Prohibitions.  Company shall not, directly or indirectly, do, nor permit anyone to do, any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any of the Modes of Access, Insights Technology or any other ClearCare software; (ii) transfer, sublicense, distribute, re-transmit, disseminate, re-sell, loan, lease, share, give, or otherwise make available in any format any Mode of Access or any Insights Technology on a stand-alone basis or as part of any software application, (iii) make available or provide the Accessible Data to any third party as a reseller, service bureau, service provider or similar basis, (iv) modify or create derivative works (as defined under U.S. Copyright laws) based on any of the Modes of Access, Insights Technology or any related documentation; (v) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Modes of Access or Insights Technology; (vi) use the Modes of Access or Insights Technology for timesharing or service bureau purposes or otherwise for the benefit of any third party; (vii) remove any proprietary notices from any of the Modes of Access, Insights Technology or any other ClearCare materials furnished or made available hereunder; (viii) publish or disclose to third parties any negative evaluation of the Modes of Access, Insights Technology or related services without ClearCare's prior written consent; (ix) use any of the Modes of Access or Insights Technology to develop a similar product or service, or other information resource of any kind (print, electronic or otherwise) or otherwise create or attempt to create a substitute or similar service or product; (x) use the Modes of Access to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (xi) interfere with or disrupt the integrity or performance of the Modes of Access or the Accessible Data, or (xii) attempt to gain unauthorized access to the Modes of Access or the Accessible Data. In addition, Company shall not, nor shall Company permit any third party to, in any non-transitory manner store or cache Company’s Accessible Data or any other information or proprietary content obtained from or through the Modes of Access.

2.6   Authentication. Company must obtain authentication credentials to use the Modes of Access.  Company agrees to neither share Company authentication credentials with any third party nor use authentication credential issued to a third party by ClearCare. Company is responsible for any acts or omissions of any third party that uses the authentication credentials issued to Company.

2.7   Changes.  Subject to the remainder of this Section 2.7, ClearCare may change the Modes of Access in its discretion.  ClearCare will give Company reasonable advance notice of any material change to any Mode of Access.  Notwithstanding the first sentence of this Section 2.7, ClearCare agrees to make available to Company a ClearCare Insights Web Interface throughout the term of this Agreement, and the functionality of the ClearCare Insights Web Interface will not be materially decreased during the term of this Agreement.  In addition, notwithstanding the first sentence of this Section 2.7, as long as ClearCare uses a third party hosting service (such as Amazon AWS) to host the Accessible Data, ClearCare agrees to make available to Company a Third Party Hosting Service Web Interface and a Third Party Hosting Service API, and the functionality of the Third Party Hosting Service Web Interface and the Third Party Hosting Service API will not be materially decreased during the term of this Agreement.

3.   DELIVERY.  ClearCare will deliver, on a nightly basis, the Accessible Data to Company.  The Accessible Data will be delivered electronically to a partition in a hosted database.  A party will promptly notify the other if it becomes aware of any unavailability or other problems associated with the Accessible Data or the Modes of Access.

4.   CONSIDERATION. 

4.1   Fees and Charges.  Company shall pay ClearCare the amounts specified on Schedule A.  The initial payment is due within 10 days of the Effective Date.  All subsequent payments are due and payable within 30 days of the invoice date.  Payment shall be made by ACH withdrawal, as instructed by ClearCare.  All amounts paid are non-refundable.  Invoices not paid when due will bear interest at rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less, from the due date until paid. Company shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.

4.2   Taxes.  Company will pay sales, use or similar state or local taxes with respect to the Modes of Access, Insights Technology or otherwise arising out of or in connection with this Agreement or payments to be made under this Agreement, excluding taxes based on ClearCare’s net income.

5.   OWNERSHIP.  As between the parties and except for the license granted by this Agreement, ClearCare and its licensors own all right, title and interest, including all intellectual property rights, in and to the Insights Technology, and Company owns all right, title and interest in and to the Accessible Data (excluding any Modes of Access and any Insights Technology incorporated therein and any other ClearCare software, data or information). All rights not expressly granted to a party by the other are hereby reserved. There are no implied rights.

6.   WARRANTY AND INDEMNITY.

6.1   Mutual Warranties.  Each party represents and warrants to the other that:  (i) it is organized and validly existing under the laws of the state of its formation and has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (ii) this Agreement is a legal and valid obligation binding upon it and enforceable according to its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); and (iii) its execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or contract, oral or written, to which it is bound.

6.2   Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, CLEARCARE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  CLEARCARE DOES NOT WARRANT THAT THE MODES OF ACCESS, INSIGHTS TECHNOLOGY OR ACCESSIBLE DATA WILL MEET COMPANY’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE ACCESSIBLE DATA WILL BE UNINTERRUPTED OR THAT THE ACCESSIBLE DATA WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE.  FURTHER, CLEARCARE DOES NOT WARRANT THAT ANY ERRORS WITH THE ACCESSIBLE DATA OR MODES OF ACCESS ARE CORRECTABLE OR WILL BE CORRECTED, OR THAT THE MODES OF ACCESS OR ACCESSIBLE DATA IS SUITED OR SUITABLE FOR COMPANY’S COMPUTERS OR COMPUTING ENVIRONMENT OR THAT THE MODES OF ACCESS WILL NOT CHANGE IN THE FUTURE.

6.3   Indemnification.

(a)  By ClearCare. Subject to the limitations of Section 9, ClearCare shall defend Company from any third party claim, suit or proceeding (“Claim”) alleging that the Insights Technology provided to Company by ClearCare under this Agreement infringes or violates any valid U.S. copyright other U.S. intellectual property right of that third party, and shall indemnify and hold harmless Company from all resulting damages, losses, liabilities, settlements, judgments, costs and expenses (including attorneys’ fees, filing fees and expert witness fees). If use of the Insights Technology is enjoined, ClearCare may, at its option, do one or more of the following: (i) procure for Company the right to use the Insights Technology, (ii) replace the Insights Technology with other suitable modes of access, services, software or products, or (iii) refund the unearned prepaid portion of the fees paid by Company hereunder, if any, and terminate this Agreement. ClearCare will have no liability under this Section 6.3 if the Claim is based upon (a) use of the Insights Technology in combination with data, software, hardware, equipment or technology not provided by ClearCare, if infringement would have been avoided in the absence of the combination, (b) modifications to the Insights Technology not made by ClearCare, if infringement would have been avoided by the absence of the modifications, (c) use of any version other than a current release of the Insights Technology, as applicable, if infringement would have been avoided by use of a current release, or (d) any action or omission of Company for which Company is obligated to indemnify ClearCare under Section 6.3(b). THIS SECTION 6.3 STATES CLEARCARE’S ENTIRE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION CLAIMS.

(b)  By Company. Company shall defend ClearCare from any (i) breach of this Agreement by Company, its affiliates, employees, agents, successors and assigns; or (ii) Claim arising out of, relating to or based on the provision, processing, access or use of the Accessible Data or Modes of Access as contemplated by this Agreement (including, without limitation, any Claim that doing so violates any law or obligation applicable to Company), and shall indemnify and hold harmless ClearCare from all resulting damages, losses, liabilities, settlements, judgments, costs and expenses (including attorneys’ fees, filing fees and expert witness fees).

(c)  Conditions to Indemnity. As a condition to indemnification under this Section 6.3, the indemnified party shall (i) promptly notify the indemnifying party in writing of the Claim, (ii) provide the indemnifying party with sole control of the defense and all related settlement negotiations, and (iii) give information and assistance as reasonably requested by the indemnifying party.

7.   TERM AND TERMINATION.

7.1   Term.  This Agreement is effective on the date first set forth above and, unless terminated sooner as provided for herein, will remain in effect for a period of three years (the “Initial Term”). After the Initial Term, this Agreement will continue for successive one year terms unless either party gives written notice to the other party at least 30 days prior to the end of the then-current term of its intent not to renew this Agreement. (The Initial Term and all renewal terms, if any, are collectively referred to as the “Term.”)

7.2   Termination. A party may terminate this Agreement: (i) if the other party materially breaches this Agreement and does not remedy the breach within 30 days after its receipt of written notice of such breach, except that the cure period for non-payment is five days; or (ii) if the other party terminates its business activities or is adjudicated insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. After the Initial Term, a party may terminate this Agreement for convenience at any time upon 60 days’ notice.

7.3   Effect of Termination. Upon any termination of this Agreement, (a) the rights and licenses granted to each party under this Agreement will terminate, (b) all payment obligations will accelerate such that all amounts which would have been due and payable in the future in the then-current term will immediately become due and payable to ClearCare, and (c) each party shall, to the extent practicable, destroy or return to the other party, at the other party’s option, all copies of the other party’s Confidential Information in its custody, possession or control, except that a party may retain a copy of the other party’s Confidential Information for its records to establish its rights or performance of this Agreement, and except further that the Accessible Data may be retained and used by ClearCare for its own business purposes, including for providing it to Customer’s franchisees.  In the event of destruction, the party destroying the records shall provide a certificate of destruction following request.

7.4   Survival.  The definitions and the rights, licenses, duties and obligations of the parties that by their nature continue and survive, including the ownership, warranty, limitation on liability, confidentiality and miscellaneous provisions, will survive any termination of this Agreement.

7.5   Rights of Termination and Non-Renewal. The rights of termination and non-renewal set forth in this Section 7 are absolute, and that the parties have considered the possibility of such termination or non-renewal and the possibility of loss and damage resulting therefrom, in making expenditures pursuant to the performance of this Agreement.  Neither party is liable to the other for damages or otherwise by reason of the termination or expiration of this Agreement as provided herein.  The parties expressly agree that the notice periods in this Agreement are reasonable under the contemplated circumstances.

8.    CONFIDENTIALITY.

8.1   Obligation.  Each party agrees, both during and after the term of this Agreement, to hold the Confidential Information of the other party in the confidence and not to use or disclose such Confidential Information to any third party, except as otherwise expressly provided by this Agreement.  Each party shall, however, be permitted to disclose relevant aspects of such Confidential Information to its officers, employees, or contractors, all on a need-to-know basis, on condition that such individuals or entities are under obligations of confidentiality that require them to protect the Confidential Information to the same extent as required under this Agreement.  Each party shall employ reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, the steps that it takes to protect its own information of like kind.  The recipient shall give the discloser notice immediately upon learning of any unauthorized use or disclosure of the discloser’s Confidential Information.  The obligations set forth in this Section 8.1 do not apply to any portion of the Confidential Information where the recipient establishes that: (a)  the recipient already possessed the information at the time of disclosure (other than the Accessible Data), (b) the recipient received the information in good faith on a non-confidential basis from a third party lawfully in possession thereof; (c) the information was publicly known or available at the time of its receipt by the recipient or becomes publicly known or available other than by a breach of this Agreement or in violation of any confidentiality obligation applicable to such information; (d) the information is independently developed by the recipient without use of, or reference to, the discloser’s Confidential Information; or (e) the rightfully information is provided or made available to a third party free of an obligation of confidentiality.  A disclosure of Confidential Information required by applicable statute or regulation or by judicial or administrative process shall not be considered a breach of this Section 8, provided that the recipient notifies the discloser of such requirements at least 15 days in advance so as to provide the discloser the opportunity to obtain such protective orders or confidential treatment or otherwise limit or prevent the disclosure.

8.2   Confidential Nature of Agreement. The parties agree that the terms and conditions of this Agreement shall be treated as confidential information of both parties and shall not be disclosed to any third party; provided, however, that a party may disclose a copy of this Agreement and provide information concerning this Agreement:  (i) as required by any court or other governmental body; (ii) as otherwise required by law (including filings to Securities Exchange Commission); (iii) to its own accountants, advisors and legal counsel who have a need to know; (iv) as required in connection with a public offering or securities filing; (v) in confidence, to accountants, banks and financing sources and their advisors in connection with the due diligence review of such party with respect to its prospective debt or equity financing; (vi) in connection with the enforcement of this Agreement or rights under this Agreement or any defenses or claims hereunder (including counterclaims); and (viii) in confidence, in connection with the due diligence review of such party with respect to a bona fide prospective merger, acquisition or proposed merger, acquisition or the like.

9.   LIMITATION OF LIABILITY.

9.1  Consequential Damages Waiver.  IN NO EVENT WILL CLEARCARE BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, LOSS OF USE OF SOFTWARE, COSTS OF RECREATING LOST DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF CLEARCARE HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OR ANY LIMITED REMEDY HEREUNDER.

9.1   Cap on Liability.  IN NO EVENT WILL CLEARCARE’S LIABILITY EXCEED THE AMOUNTS PAID HEREUNDER IN THE 12 MONTHS PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM.

10.   GENERAL.

All notices to a party shall be in writing and sent to the addresses specified above or such other address as a party notifies the other party, and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by confirmed facsimile; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Customer and ClearCare are independent contractors and neither party is the legal representative, agent, joint venturer, partner, franchisor, franchisee or employee of the other party for any purpose whatsoever.  Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.  All indices, titles, subject headings, section titles and similar items contained in this Agreement are provided for the purpose of reference and convenience only and are not intended to be inclusive, definitive or to affect the meaning, content or scope of this Agreement.  ClearCare and Customer acknowledge and agree that, unless explicitly stated to the contrary, this Agreement is for the sole benefit of the parties hereto and shall not be construed as a third-party beneficiary contract to confer on any person other than the parties hereto any legal or equitable rights hereunder.  This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument.  Neither party shall assign its rights under this Agreement nor delegate any performance (other than the right to receive payments) without the other party’s prior written consent, except that ClearCare may, without Customer’s consent, assign this Agreement to an affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates or other business combination transaction.  Any attempted assignment in violation of this Section is void.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.  The laws of the State of California (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of San Francisco, California in all controversies arising out of, or relating to, this Agreement.  No remedy is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise legally available to a party.  Except with respect to payment obligations, neither party is liable for any failure of performance or equipment due to causes beyond its reasonable control, including, but not limited to, the following: (i) acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; (ii) any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; (iii) national emergencies, insurrections, riots, wars or acts of terrorism; (iv) unavailability of rights-of-way or materials; or (v) strikes, lock-outs, work stoppages, or other labor difficulties.  The parties may waive this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced.  No failure or delay (a) in exercising any right or remedy, or (b) in requiring the satisfaction of any condition, (c) under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition.  A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated.  A waiver once given is not to be construed as a waiver on any future occasion or against any other person.  Customer shall comply with all applicable United States, foreign and local laws and regulations, including, without limitation, export control laws and regulations of the U.S. Export Administration.  The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.  If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force.  This Agreement reflects the wording negotiated and accepted by the parties and no rule of construction shall apply against either party.  This Agreement is proposed and executed in the English language only and any translation of this Agreement into any other language shall have no effect.  All proceedings related to this Agreement will be conducted in the English language. ClearCare may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Product Offering in its advertising, marketing and promotional materials This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof.  All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.