Terms and Conditions

IF YOU SIGN UP FOR KLEARLY’S SOFTWARE-AS-A-SERVICE APPLICATION SERVICE, EITHER BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS AND CONDITIONS AND/OR BY ORDERING OR SIGNING UP THROUGH OUR WEBSITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.

These Terms and Conditions (the “Terms and Conditions”) together with any Order Form (defined below) and any other documents incorporated by reference within these Terms and Conditions or an Order Form (these collectively, the “Agreement”) is entered into by and between Klearly Analytics, Inc. (“Klearly”) and the legal entity, including its Affiliates (collectively “Customer”) identified in the applicable Order Form (either online or signable). Both Klearly and Customer are referred to hereinafter as a “Party”, and together, the “Parties.”

1. DEFINITIONS.

Capitalized terms, not otherwise defined, have the meanings set forth or cross-referenced in this Section 1.

“Application Client” will mean the installable software client through which Customer may integrate its offering with the Application Service in accordance with the terms of this Agreement.

“Application Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, (“functionality”) whether such functionality is provided in a scheduled release which materials are designed to facilitate use of the Application Service and which are provided by Klearly to Customer in accordance with the terms of this Agreement.  

“Application IP” will mean the Application Service, the API, the Application Documentation, the Web Interface, and any and all intellectual property provided to Customer (and/or any applicable Authorized Users) in connection with the foregoing. 

“Application Programming Interface” or “API” means any application programming interface that Klearly may provide for Customer’s use in conjunction with the Application Service.

“Application Service” will mean the technology and application software set forth and described on the Order Form. 

“Authorized User” shall mean, collectively, any individual employees, agents, or contractors of Customer accessing or using the Application Service through the Application Client, under the rights granted to Customer pursuant to this Agreement; and through the Web Interface, under the rights granted to Customer pursuant to this Agreement.  

“Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.  Without limiting the foregoing, for purposes of this Agreement, the Application Documentation and APIs will be deemed Confidential Information of Klearly.

“Customer Content” will mean the data, information and content provided by, or utilized by, Customer in connection with the Application Service.

“Order Form” means an ordering document for Customer’s subscription to the Application Service that incorporates this Agreement by reference and is executed by the Parties.

“Support Policy” has the meaning set forth in Section 3.2.

“Web Interface” will mean the website or websites through which Customer’s Authorized Users may access the Application Service in accordance with the terms of this Agreement.

2. ACCESS AND USE.  

2.1.  Provision of Access.  Subject to the terms and conditions contained in this Agreement, Klearly hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Application Service during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein.  Such use shall be limited to use of the Application Service for the benefit of, or in relation to, the operation of Customer’s business.  As soon as reasonably practicable after configuration of the application Klearly shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Service (the “Access Protocols”).  Klearly shall also provide Customer the Application Documentation to be used by Customer in accessing and using the Application Service.  Customer acknowledges and agrees that, as between Customer and Klearly, Customer shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.  Customer shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Application Service, and shall cause Authorized Users to comply with such provisions. 

2.2.  Application Client.  Except as otherwise set forth in this Section 2.2, the Application Client shall be deemed part of the Application Service for purposes of this Agreement, subject to the disclaimers set forth herein.  Subject to the terms and conditions of this Agreement, Klearly grants to Customer a non-exclusive, non-transferable, right and license, during the Term, to utilize the Application Client solely within applications distributed or otherwise published by Customer, solely for purposes of accessing and utilizing the features and functions of the Application Service.  The Application Client may be distributed with solely as embedded with Klearly’s own applications solely on terms at least as protective of Klearly and the Application Client as the terms of this Agreement.  

2.3.  Application Documentation License.  Subject to the terms and conditions contained in this Agreement, Klearly hereby grants to Customer a non-exclusive, non-transferable right and license to use the Application Documentation during the Term for Customer’s internal purposes in connection with its use of the Application Service as contemplated herein.

2.4.  API License.  Subject to the terms and conditions contained in this Agreement, Klearly hereby grants to Customer a non-exclusive, non-transferable right and license to utilize the API during the Term for Customer’s internal purposes in connection with its use of the Application Service as contemplated herein.

2.5.  Usage Restrictions.  Customer will not, and will not permit any Authorized Users to, (i) copy or duplicate any of the Application IP; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application IP, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Klearly; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2, except for the sublicense right expressly granted in Section 2.2.  Customer will not use any of the Application IP except in compliance with Klearly’s obligations to any third party with respect thereto incurred prior to the Effective Date, provided that Klearly has notified Customer of such obligations.  Customer will ensure that its use of any of the Application IP complies with all applicable laws, statutes, regulations or rules, including any export and import requirements and will not use or compile any of the Application IP for the purpose of any illegal activities.  Customer will further comply with any documentation or written requirements provided by Klearly to Customer, and any best practices and industry specifications when using the Application Service.  Customer shall use any data warehouse functionality provided as part of the Application Service to store only that Customer Content which is necessary to take full advantage of the Application Service.  Customer acknowledges that Klearly may restrict data transmission if data transmitted does not reflect the most efficient manner in which to store or use the Application Service, or if data transmitted is stored for a purpose other than utilization of the Application Service. 

2.6.  Retained Rights; Ownership.  As between the Parties, subject to the rights granted in this Agreement, Klearly and its licensors retain all right, title and interest in and to the Application IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Klearly retains the right to use the foregoing for any purpose in Klearly’s sole discretion.

2.7.  Suspension.  Notwithstanding anything to the contrary in this Agreement, Klearly may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Application IP if (i) Klearly reasonably determines that (a) there is a threat or attack on any of the Application IP; (b) Customer’s or any Authorized User’s use of the Application IP disrupts or poses a security risk to the Application IP or any other customer or vendor of Klearly; (c) Customer or any Authorized User is/are using the Application IP 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 (e) Klearly’s provision of the Application Service to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Klearly has suspended or terminated Klearly’s access to or use of any third party services or products required to enable Customer to access the Application IP  (each such suspension, in accordance with this Section 2.7, a “Service Suspension”). Klearly will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices sent to Klearly’s registered email address) and to provide updates regarding resumption of access to the Application IP following any Service Suspension. Klearly will use commercially reasonable efforts to resume providing access to the Application Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  Klearly 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 Service Suspension.  Klearly does not include any limits for Customer’s usage of disk storage and bandwidth in connection with the Application Service but such commitment is subject to (i) Customer complying with the terms of this Agreement; and (ii) Customer ensuring that it does not infringe the intellectual property rights of any third party.

3. CUSTOMER OBLIGATIONS.

3.1.  Authorized User Access to Services.  Subject to the terms and conditions herein, Customer may permit any Authorized User to access and use the features and functions of the Application Service.  Customer will ensure that any such Authorized User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Klearly’s Confidential Information and the Application IP as are provided by the terms hereof.

3.2.  Provision of Support to Authorized Users.  Klearly shall provide technical support in accordance with its Support Policy available at https://see.klearly.com/service-levels-support.  

3.3. Assistance to Klearly.  Customer will, at its own expense, provide assistance to Klearly, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Klearly to perform its obligations hereunder, including, without limitation, any obligations with respect to support services performed pursuant to Section 3. 

3.4.  Data.  To the extent that Customer and any Authorized User, through or in connection with use of the Application IP, collect, use, store and disclose data from any other party, Customer and/or each Authorized User shall accurately and adequately disclose, either through a privacy policy or otherwise, how Customer and/or each such Authorized User collects, uses, stores and discloses data, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers.

3.5.  Customer Content.  Klearly acknowledges that Customer owns or otherwise has rights to all Customer Content that it provides or otherwise permits access to Klearly through the Application Service and Customer grants to Klearly a non-exclusive license during the Term of the Agreement to use such Customer Content solely in connection with the provision of the Application Service to Customer.  Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such Customer Content to Klearly, including any data or information contained therein and that, to the extent Customer shares or otherwise permits Klearly or the Application Service to make use of any credentials to obtain such data or information, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.  Customer acknowledges that Klearly may, in its discretion, archive Customer Content that is two (2) or more years old such that this archived Customer Content is not readily accessible through the Application Service.

4. FEES AND EXPENSES; PAYMENTS.

4.1.  Fees. In consideration for the rights granted to Customer and the performance of Klearly’s obligations under this Agreement, Customer shall pay to Klearly, without offset or deduction, certain fees, in such amounts as may be determined by reference to an Order Form (“Fees”). If applicable, you agree and consent to Klearly’s use of third-party payment providers for billing and processing online payments, and you agree to pay the applicable Fees when due as indicated by Klearly. Unless otherwise provided in an Order Form, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Klearly with respect thereto. Klearly may adjust the Fees at its election after the initial term of this Agreement and upon each anniversary thereafter by providing at least thirty (30) days notice (which may be delivered electronically).  

4.2.  Customer Operating Expenses. Customer will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, through use by Customer and/or any Authorized User of the Application Service, and/or through provision of support to Authorized Users with respect to such use of the Application Service.

4.3.  Taxes.  Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Klearly’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services.  Customer will make all required payments to Klearly free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments to Klearly will be Customer’s sole responsibility, and Customer will, upon Klearly’s request, provide Klearly with official receipts issued by the appropriate taxing authorities, or such other evidence as Klearly may reasonably request, to establish that such taxes have been paid.

4.4.  Late Payments; Interest.  Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

5. TREATMENT OF CONFIDENTIAL INFORMATION.

5.1.  Ownership of Confidential Information.  The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.  Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

5.2.  Mutual Confidentiality Obligations.  Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 9.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.  Notwithstanding the foregoing, Customer agrees that Klearly may collect aggregated statistical data regarding Customer’s use of the Application Service and provide such aggregated statistical data to third parties.  In no event shall Klearly provide to third parties specific data regarding Customer or Customer’s Authorized Users.

5.3.  Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) 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 (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. 

5.4.  Aggregated Statistics.  Notwithstanding anything else in this Agreement or otherwise, Klearly may monitor Customer’s use of the Application Service and use data and information related to such use, and Customer Content in an aggregate and anonymous manner, including without limitation to compile statistical and performance information related to the provision and operation of the Application Service and to improve the performance of the Application Service, including modification of the Application Service’s underlying code and/or algorithm through the use of artificial intelligence or otherwise (“Aggregated Statistics”).  Customer hereby grants Klearly a perpetual, irrevocable, fully transferable, fully sublicensable (through multiple tiers), royalty-free, fully-paid-up license to use, modify and otherwise exploit the Customer Content and other information and data input into the Application Service to create the Aggregated Statistics and in the use of such Aggregated Statistics as set forth herein. As between Klearly and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Klearly.  Customer acknowledges that Klearly will be compiling Aggregated Statistics based on Customer Content input into the Application Service and Customer agrees that Klearly may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner permitted by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information. 

6. REPRESENTATIONS AND WARRANTIES.  

6.1.  Mutual Representations.  Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

6.2.  Service Levels.  Klearly warrants that the Application Service will conform in all material respects to the Service Standard set forth in the Support Policy available at https://see.klearly.com/service-levels-support when accessed and used in accordance with the Application Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement (including, without limitation, Section 6.1 of this Agreement), Customer acknowledges and agrees that its sole and exclusive remedy, and Klearly’s sole and exclusive obligation, with respect to any breach of the foregoing warranty shall be remedies specified in such Support Policy.   Klearly does not make any representations or guarantees regarding uptime or availability of the Application IP unless specifically identified in the Support Policy.

7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.

7.1.  Disclaimer.  EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IP, INCLUDING THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, THE APIS, THE WEB INTERFACE, AND ALL SERVICES PERFORMED BY KLEARLY ARE PROVIDED “AS IS,” AND KLEARLY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.  

7.2.  Exclusions of Remedies; Limitation of Liability.  EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL KLEARLY OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF KLEARLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  THE CUMULATIVE LIABILITY OF KLEARLY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO KLEARLY BY CUSTOMER UNDER SECTION 4.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7.3.  Essential Basis of the Agreement.  Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. INDEMNIFICATION.

8.1.  Indemnification of Customer.  Klearly agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Application Service and/or the Application Documentation infringes such third party’s U.S. patents issued as of the Effective Date or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of the United States of America, provided that Customer promptly notifies Klearly in writing of the claim, cooperates with Klearly, and allows Klearly sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Customer agrees to permit Klearly, at Klearly’s sole discretion, to enable it to continue to use the Application Service or the Application Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing.  If Klearly determines that none of these alternatives is reasonably available, Customer shall, upon written request from Klearly, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.  This Section 8.1 shall not apply to the extent that the alleged infringement arises from (i) modification of any of the Application IP by Customer, (ii) combination, operation or use of any of the Application IP with other software, hardware or technology not provided by Klearly, (iii) use of a superseded or altered release of any of the Application IP, if such infringement would have been avoided by the use of a then-current release of the Application IP, as applicable, and if such then-current release has been made available to Customer, (iv) any Customer Content, or (v) any applications owned or otherwise distributed by Customer (any of the foregoing circumstances under clauses (i), (ii), (iii), or (iv) a “Customer Indemnity Responsibility”).  IN NO EVENT SHALL KLEARLY’S LIABILITY UNDER THIS SECTION 8 EXCEED THE CAP ON LIABILITY SET FORTH IN SECTION 7.2 ABOVE.  THIS SECTION STATES KLEARLY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

8.2.  Customer’s Indemnity Obligations.  Customer agrees to hold, harmless, indemnify, and, at Klearly’s option, defend Klearly from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Customer’s or any Authorized User’s negligence or willful misconduct; (ii) Customer’s or any Authorized User’s use of the Application IP in a manner not authorized or contemplated by this Agreement; or (iii) a Customer Indemnity Responsibility, provided that Customer will not settle any third-party claim against Klearly unless such settlement completely and forever releases Klearly from all liability with respect to such claim or unless Klearly consents to such settlement, and further provided that Klearly will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

9. TERM AND TERMINATION.

9.1.  Term.  The term of this Agreement shall be as specified in the applicable Order Form (the “Initial Term”). Unless otherwise specified in the applicable Order Form, each subscription will automatically renew for additional periods equal to the expiring Term. Either Party may provide written notice (Customer can send email to support@klearly.com) of its desire not to renew at least fifteen (15) days prior to the expiration of the then-current term (the Initial Term, together with any renewal terms, collectively, the “Term”). The pricing for any automatic renewal term will be the same as that during the immediately prior Term unless Klearly has given Customer written notice of a price increase at least thirty (30) days before the end of the expiring Term, in which case the price increase will be effective upon renewal.

9.2.  Termination for Breach.  Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching Party will have a right to cure such breach or breaches within twenty-five (25) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such twenty-five (25)-day period.  Notwithstanding the foregoing, nothing in this Section 9.2 shall limit Klearly’s rights to suspend Customer’s access to the Application Service in accordance with Section 2.7 above. 

9.3.  Effect of Termination.  Upon any termination of this Agreement, Customer will  immediately discontinue all use of the Application Service, the Application Documentation, and any Klearly Confidential Information and both Parties will delete any of the other Party’s Confidential Information from  computer storage or any other media including, but not limited to, online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of the Application Documentation and any Confidential Information then in the other Party’s possession; and (iv) promptly pay to Klearly all amounts due and payable to the other Party hereunder. Customer shall have the right for up to sixty (60) days following the Termination of this Agreement to export Customer Content, only to the extent Customer is current on all payments owed to Klearly under this Agreement.

9.4.  Survival.  The provisions of Sections 2.6, 3.5, 5, 7, 8, 9.3, 9.4 and 10 will survive the termination of this Agreement.

10. MISCELLANEOUS.

10.1.  Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.

10.2.  Independent Contractors.  In making and performing this Agreement, Customer and Klearly act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them.  Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.

10.3.  Notices.  All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Customer, to the address set forth on the Order Form, and if to Klearly, as follows: Klearly Analytics, Inc., 92 Cornerstone Drive, Suite 323, Cary, NC 27519, USA. Attention: Legal.  Or addressed to such other address as that Party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient.  Such notices shall be effective on the date indicated in such confirmation.  In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.

10.4.  Amendments; Modifications.  This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

10.5.  Assignment; Delegation.  Neither Party shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.  Notwithstanding the foregoing, Klearly may assign this Agreement, without consent, in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets.

10.6.  No Third Party Beneficiaries.  The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.7.  Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

10.8.  Waiver.  No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

10.9.  Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, pandemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

10.10. Reference.  Klearly may issue a press release announcing Customer as a customer of the Application Service, subject to Customer’s written approval. Klearly may list Customer as such at its corporate Website at https://www.klearly.com. Klearly may create a white paper on Customer’s use case subject to Customer’s written approval.

10.11.  Governing Law.  THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.  FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN DURHAM COUNTY, NORTH CAROLINA.

10.12.  U.S. Government End-Users.  Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.

10.13.  Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.

10.14.  Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.

10.15. Conflict. If there is an inconsistency between any of the provisions in the Terms and Conditions and any Order Form, the special provisions in the Order Form shall control.

[End of Terms and Conditions]