Software-as-a-Service Agreement
Last revised: September 2024
This Software-as-a-Service (SaaS) Agreement (“Agreement”) is entered into by and between Cloverly Inc. incorporated in Delaware with registered address at 925B Peachtree St, NE #367, Atlanta, Georgia 30309 (“Cloverly”) and the organization on whose behalf you are agreeing to this Agreement (“Customer”), and which is also identified in the Order Form or other transactional document referring to this Agreement (collectively, “Order Form”), allowing the Customer to access and use Cloverly’s hosted software as a service and other tools enabling organizations to manage, sell, supply, and keep track of its carbon credits inventory and as identified in the Order From (“Services”).
By executing an Order Form or registering for, accessing, using, or subscribing to use the Services, or by clicking “I Agree” or otherwise affirmatively manifesting your intent to be bound by this Agreement, you represent and warrant that you have: (a) all necessary rights and authority necessary to enter into this Agreement on behalf of Customer; and (b) read, understood, and agree to be bound by this Agreement on Customer’s behalf, as well as all other agreements referenced herein and any future modifications thereto.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION
1. DEFINITIONS
“Affiliate” means with respect to a Party, any person or entity that controls, is controlled by, or is under common control with such Party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
“Buyer” means Customer’s clients that purchase Customer’s Carbon Credits via Cloverly Marketplace or other Distribution Channels.
“Carbon Credit” means Customer’s assets, offsets, and any other green commodity sold across voluntary or compliance credit markets.
“Cloverly ” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Cloverly IP includes Aggregated Statistics, and any information, data, or other content derived from Cloverly’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
“Cloverly Marketplace” means a marketplace, developed by Cloverly, that enables Customer to market its Carbon Credits and
facilitates the sale of the Carbon Credits to Buyers.
“Customer Data” means any data that Customer submits to the Services, which may include information about its Carbon Credits.
“Customer Storefront” means Customer-branded portal, where Buyers may purchase Carbon Credits directly from the Customer.
“Distribution Channels” means Carbon Credit marketplaces, Cloverly Marketplace, listing platforms, exchanges, brokers or any third parties that facilitate the transaction between Customer and Buyer of Carbon Credits and/or which are not considered Direct Sales.
“Documentation” means the user manuals, handbooks, guides relating to the Services, end user technical documentation provided with the Services, as may be modified from time to time.
“Improvement” means new features, functionality, enhancements, upgrades, error corrections, and bug fixes that the Services makes generally available by Cloverly for no additional charge to Cloverly’s customers.
“Order Form” means document entered by and between Cloverly and Customer (including Affiliates of either party that enter into an Order Form) that references this Agreement, which details the services to be provided by Cloverly, the fees associated therewith, and any other transaction-specific terms and conditions.
“Third-Party Products” means any third-party hosted software as a service or other services that are developed, marketed, performed, or provided by a third party and which the Customer may elect to integrate with the Services.
2. ACCESS TO SERVICES
(a) Provision of the Services. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Conditioned upon Customer’s payment of all fees due hereunder, Cloverly grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Services during the applicable Subscription Term, and in scope of use restrictions as set forth in the applicable Order Form, solely for Customer’s internal business purposes. Customer may permit its Affiliates to use and access the Services and Documentation in accordance with this Agreement, but Customer shall be responsible for the compliance of all Affiliates with this Agreement, Documentation, and the Order Form(s). Cloverly will host the Services and may update the content, functionality, and user interface of the Services from time to time at its discretion. Cloverly will not materially decrease the functionality of the Services during Subscription Term.
(b) Use Restrictions. Customer shall not (and shall not permit any third party to): (i) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the Services in a manner that allows anyone to access or use the Services without an Authorized User subscription, or to commercially exploit the Services; (ii) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (iii) use the Services to develop a similar or competing product or service; (iv) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code except to the extent expressly permitted by applicable law (and then only upon advance notice to Cloverly); (v) copy, modify or create any derivative work of the Services or any Documentation; (vi) remove or obscure any proprietary information or other notices contained in the Services; (vii) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Services for any purpose, whether by termination of employment or other change in job status or function); (viii) publicly disseminate performance information regarding the Services; or (ix) access or use the Services: (A) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (B) in violation of applicable laws; (C) to send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, or agents; (D) in a manner that interferes with or disrupts the integrity of the Services; (E) disable or bypass the measures that Cloverly may use to prevent or restrict access to the Services, or in applicable, use the Services in excess of certain license restrictions and limits set forth in the Order Form(s).
(c ) Availability and Support Services. During the Subscription Term, Cloverly to its best commercial effort shall make the Services available, and provide Support Services, as described in the Exhibit A. Support Services are included in the Services subscription.
(d) Usage Limits. Use of the Services are subject to the usage limits identified in an Order Form, which may include limitations on features and functionality. If Customer exceeds a limit, Customer will promptly notify Cloverly and work with Cloverly to promptly change its usage to comply with the limit. If Customer fails to do so or notifies Cloverly of its intent to continue with the excess usage, Customer will execute an Order Form and/or pay invoices issued by Cloverly for such excess usage. Cloverly may periodically verify that Customer’s use of the Services are within the applicable usage limits, and Customer shall promptly and accurately certify and/or provide evidence of Customers compliance with the applicable usage limits as may be requested by Cloverly from time to time.
(e) Professional Services. Cloverly (directly, through an Affiliate and/or subcontractors) may perform implementation, training, consultation or other professional services (“Professional Services”) as agreed to in a separately executed Statement of Work.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Cloverly may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Cloverly reasonably determines that (A) there is a threat or attack on the Services; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services or to any other Cloverly’s client or vendor; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (ii) Cloverly’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Cloverly has suspended or terminated Cloverly’s access to or use of any third-party services or products required to enable Customer to access the Services; (any such suspension described in subclause (i) or (ii), a “Services Suspension”). Cloverly shall use commercially reasonable efforts to provide written notice of any Services Suspension to Customer and to provide updates regarding resumption of access to the Services following any Services Suspension. Cloverly shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Cloverly will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Services Suspension..
(g) Third Party Services. The Customer may elect to integrate the Services with Third Party Product, set forth in an Order Form. In the event of such integration, the Customer acknowledges and agrees that Customer’s access and use of such Third-Party Products is subject to Third Party’s terms and conditions (“Third Party T&C”) and nothing in this Agreement will modify any such Third Party T&C.
3. CUSTOMER DATA
(a) Control of Customer Data. Customer has exclusive control and responsibility for determining what data Customer submits to the Services and for obtaining all necessary consents and permissions for submission of Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data and for the acts and omissions of Authorized Users in connection with this Agreement. Customer represents and warrants that Customer has all necessary rights, licenses, consents, power, authority, and/or permissions to collect, share, process, disclose, and use Customer Data as contemplated in this Agreement and to grant Cloverly the license described herein, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any laws and regulation and agrees to comply with all applicable laws in its use of the Services. The Customer will use reasonable measures to prevent and will promptly notify Cloverly of any known or suspected unauthorized use of Authorized User access credentials.
(b) License to Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and is solely responsible for the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Cloverly a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services during the Subscription Term. Cloverly takes no responsibility and assumes no liability for any Customer Data that Customer or any other user or third party uploads to the Services.
4. CUSTOMER OBLIGATIONS
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Cloverly may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products..
(c ) Distribution Channels. The Services allows Customer to integrate certain Distribution Channels with the Services, allowing the Customer to track and manage Carbon Credits posted on such Distribution Channels via the Services. Customer acknowledges and agrees that Customer’s access and use of any Distribution Channels may be subject to additional terms and fees imposed by such Distribution Channels and Cloverly shall not be responsible to Customer for any liability arising from any acts, omissions, negligence, misrepresentation, misconduct, or interactions with a Buyer on any Distribution Channels..
5. WARRANTY AND DISCLAIMER
(a) Mutual Warranty. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; and (b) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
(b) Security of Services. During the Subscription Term, Cloverly will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures standard in the industry. If Cloverly detects or becomes aware of a breach of its obligations under this Section 5(b) resulting in unauthorized access affecting Customer Data, Cloverly will promptly report such breach to Customer.
(c ) THE SERVICES ARE PROVIDED “AS IS” AND CLOVERLY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CLOVERLY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLOVERLY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
6. INTELLECTUAL PROPERTY
(a) Cloverly Technology. The Services, Improvements, and Documentation, all copies and portions thereof, and all intellectual property rights therein, including, but not limited to derivative works, enhancements and modifications therefrom, shall remain the sole and exclusive property of Cloverly.
(b) Reservation of Rights. Cloverly reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services.
(c ) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Cloverly by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, Support Services, any other Cloverly’s products and services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”). Cloverly is free to use any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback without any attribution or compensation to any party, for any purpose whatsoever.. Customer hereby provides royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate and use, commercialize and distribute with the Services any suggestions, recommendations or other Feedback and to create derivative works of the same.
(d) Intellectual Property in Customer Data. Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Cloverly may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services, including sales, pricing, statistical, and performance information, and other metrics applicable to Customer’s use of the Services and Customer’s sale of the Carbon Credits, which may be used by Cloverly in an anonymized manner (“Aggregated Statistics”). As between Cloverly and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained by Cloverly. Customer acknowledges that Cloverly may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Cloverly may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Customer. Customer provides Cloverly a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics, as long as it does not identify the Customer.
7. FEES AND PAYMENT
(a) Fees & Payment. Customer agrees to pay the fees for the Services as set forth in the Order Form (“Fees”) and Customer shall pay Cloverly the Fees without any off-set or deductions. Cloverly shall invoice Customer annual fees for the Services on the effective date of the applicable Order Form. All Fees are in USD. Unless otherwise set forth in the Order Form, in addition to the annual fees for subscription, Cloverly may charge the Customer a certain transactional fee (as further described in the Order Form) which may be deducted from the payments made to the Customer on Cloverly Marketplace, Customer Storefront, and Distribution Channels or may be invoiced monthly. Customer agrees to pay all invoices within thirty (30) days of date of invoice. Except as expressly set forth in an Order Form: (a) payment obligations are non-cancelable and fees are non-refundable, unless specifically provided herein; and (b) Customer may not decrease the purchased number of subscription rights to the Services during the applicable Subscription Term. Customer must contact Cloverly in writing within thirty (30) days from invoice date to dispute any invoice.
(b) Effect of Nonpayment. All fees stated on Order Form are exclusive of any taxes, levies, or duties (“Taxes”), and the Customer will be responsible for payment of all such Taxes excluding taxes based solely on Cloverly income. Unless Customer provides Cloverly a valid state sales/use/excise tax exemption certificate, Customer will pay and be solely responsible for all Taxes. Cloverly may invoice Taxes in accordance with the applicable law together on one invoice or a separate invoice. Cloverly reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other information provided by Customer on the location of Customer’s use of the Services. Customer will be responsible for any Taxes, penalties or interests that might apply based on Cloverly’s failure to charge appropriate tax due to incomplete or incorrect location information provided by Customer. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the Services under this Agreement, Customer shall increase the sum paid to Cloverly by an amount necessary for the total payment to Cloverly equal to the amount originally invoiced.
(c ) Taxes. All fees stated on Order Form are exclusive of any taxes, levies, or duties (“Taxes”), and the Customer will be responsible for payment of all such Taxes excluding taxes based solely on Cloverly income. Unless Customer provides Cloverly a valid state sales/use/excise tax exemption certificate, Customer will pay and be solely responsible for all Taxes. Cloverly may invoice Taxes in accordance with the applicable law together on one invoice or a separate invoice. Cloverly reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other information provided by Customer on the location of Customer’s use of the Services. Customer will be responsible for any Taxes, penalties or interests that might apply based on Cloverly’s failure to charge appropriate tax due to incomplete or incorrect location information provided by Customer. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the Services under this Agreement, Customer shall increase the sum paid to Cloverly by an amount necessary for the total payment to Cloverly equal to the amount originally invoiced.
(d) Auditing Rights and Required Records. Customer agrees to maintain a complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder and the number of transactions completed with Buyers though Cloverly Marketplace, Customer Storefront, and Distribution Channels. Cloverly may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that the Customer has underpaid any amounts due and payable during the Term, the Customer shall promptly pay the amounts necessary to rectify such overpayment. Each party shall incur its own costs associated with any such audit.
8. SUBSCRIPTION TEAM AND TERMINATION
(a) Term of this Agreement. This Agreement commences on the Effective Date and unless earlier terminated pursuant to the terms of this Agreement, the Agreement will continue for so long as there is an Order Form in effect between the Parties. Termination of this Agreement shall cause all the Order Forms to terminate.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
- (i) Cloverly may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder; or (B) breaches any of its obligations under Section 3 and 4;
- (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 15 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c ) Effect of Expiration or Termination. Upon early termination or expiration of this Agreement by Customer for Cloverly’s uncured material breach, Customer is entitled to a prorated refund of prepaid fees relating to the Services applicable to the remaining period in the applicable Subscription Term. Upon expiration or termination of this Agreement by Cloverly for Customer’s uncured material breach or pursuant to Section 8(b)(iii), fees relating to the Services applicable to the duration of any applicable Subscription Term will be immediately due and payable. In addition, upon expiration or termination of this Agreement for any reason: (i) all rights granted to Customer under this Agreement, and Cloverly’s obligation to provide Support Services and access to the Services will immediately terminate; (ii) Customer shall immediately discontinue use of the Services; an; (iii) Customer shall delete, destroy, or return all copies of Cloverly’s Confidential Information and certify in writing to the Cloverly that the Cloverly IP has been deleted or destroyed; (iv) any payment obligations accrued pursuant to this Agreement will survive such expiration or termination. No expiration or termination will affect any Customer’s accrued payment obligation and Customer shall pay any and all such accrued payment obligations immediately after the termination or provision of an invoice.
(d) Survival. This Section 8(e) and 3, 4, 7, 8, 9, 10, 11,, and 13 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
9. CONFIDENTIAL INFORMATION
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire 3 years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
10. INDEMNIFICATION
(a) Cloverly Indemnification. Cloverly shall defend Customer from and against any claim by a third party alleging that the Services when used as authorized under this Agreement infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the Services, or misappropriation of a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”) and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer by a court of competent jurisdiction or agreed in settlement by Cloverly (including reasonable attorneys’ fees) resulting from such Infringement Claim. Cloverly will have no obligation and assumes no liability under this Section 10 or otherwise with respect to any claim based on: (a) if the Services are modified by any party other than Cloverly, but solely to the extent the alleged infringement is caused by such modification; (b) if the Services are combined, operated or used with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by Cloverly where there would be no infringement Claim but for such combination; (c) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Services; (d) if Customer settles or makes any admissions with respect to a claim without Cloverly’s prior written consent; or (e) any use provided on a no-charge or evaluation basis. THIS SECTION 10 SETS FORTH CLOVERLY’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Cloverly’s option, defend Cloverly from and against any damages, losses, costs, penalties, settlement costs, reasonable attorney fees resulting from or in connection with any third party claims, demand, proceeding, lawsuit, meditation, and arbitration (“Third Party Claim”) that: (i) the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; and (ii) any Third-Party Claims based on or in connection with Customer’s or any Authorized User’s (z) negligence or wilful misconduct; (y) use of the Services in a manner not authorized by this Agreement; (x) use of the Services in combination with data, software, hardware, equipment or technology not provided by Cloverly or authorized by Cloverly in writing; or (q) modifications to the Services not made by Cloverly.
(c ) Remedies. If Customer’s use of the Services are (or in Cloverly’s opinion is likely to be) enjoined, if required by settlement or if Cloverly determines such actions are reasonably necessary to avoid material liability, Cloverly may, at its option: (i) procure for Customer the right to use the Services in accordance with this Agreement; (ii) replace or modify, the Services to make it non-infringing; or (iii) terminate Customer’s right to use the Services and discontinue the related Support Services, and upon Customer’s certification of deletion of the Services, refund prorated pre-paid fees for the remainder of the applicable Subscription Term for the Services.
(d) Customer Indemnification. Each Party’s indemnification obligations are conditioned on the indemnified Party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim; and (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party’s request and expense. The indemnified Party may participate in the defense of the claim, at the indemnified Party’s sole expense (not subject to reimbursement). Neither Party may admit liability for or consent to any judgment or concede or settle or compromise any claim unless such admission or concession or settlement or compromise includes a full and unconditional release of the other Party from all liabilities in respect of such claim..
(e) Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CLOVERLY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. LIMITATIONS OF LIABILITY.
(a) IN NO EVENT WILL CLOVERLY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CLOVERLY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CLOVERLY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CLOVERLY UNDER THE APPLICABLE ORDER FORMS RELATING TO THE CLAIM IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(b) EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
12. DATA PRIVACY
The primary purpose of the Services are not to host, process or store personal information, and Cloverly does not actively access, monitor, process or amend such personal information except to the extent requested by you in connection with our performance of the Services or as an incidental part of the automated processing. Customer is responsible for ensuring that the use of and provision of such personal information is in compliance with all applicable privacy laws and that Customer has provided all necessary notice, obtained all necessary consents, and otherwise has all authority to provide such personal information to Cloverly for the purposes of this Agreement.
13. MISCELLANEOUS
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Order of Precedence. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) Order Form; (ii) Agreement; and (iii) any other documents incorporated herein by reference.
(c ) Notices. The Parties agree that notices may be sent by electronic mail, to the electronic mail address provided by a Party to the other Party and designated as the proper electronic mail address and agree that notices are deemed received forty-eight (48) hours after transmission. Each Party agrees that any electronic communication will satisfy any legal communication requirements, including all such communication required by applicable laws to be in writing.
(d) Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
(e) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Governing Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Georgia applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.
(h) Choice of Forum. Any dispute, claim or controversy arising out of or relating to this Agreement or the other agreements and documents contemplated hereby or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Atlanta, Georgia before one (1) arbitrator who shall be a retired judge admitted to practice law in the State of Georgia. The arbitration shall be administered by JAMS (or any like organization successor thereto) pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator shall follow any applicable federal law and Georgia state law in rendering an award. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The Parties further understand and agree that the arbitrator’s decision shall be final and binding to the fullest extent permitted by law and enforceable by any court having jurisdiction thereof.
(i) Assignment. Neither this Agreement nor any obligation or right hereunder may be assigned or transferred by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
(j) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
EXHIBIT A
SERVICE LEVELS AND SUPPORT
- Target Availability. Cloverly will use commercially reasonable efforts to make the Services available and accessible to all Authorized Users on 99.5% of each calendar month (“Target Availability”).
- Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Services by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Cloverly’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance.
- Scheduled Maintenance. “Scheduled Maintenance” means Cloverly’s scheduled routine maintenance of the Services for which Cloverly notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month.