Last Updated July 15, 2018
This premium Service agreement (the “Subscriber Agreement”) is between Clozer Technologies Inc., a Delaware corporation (“Clozer”) and the organization agreeing to these terms (“Customer”). This Subscriber Agreement governs Customer’s access to Clozer’s sales acceleration and intelligence service (the “Service”) and its associated applications and website. By clicking “I Agree,” attaching this Subscriber Agreement to a purchase order or similar order form, or using the Service as a paid subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is entering into this Subscriber Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that he has the power and authority required to bind such organization to this Subscriber Agreement.
The Service and Associated Software.
We provide certain downloadable client software applications (the “Software”) for use in connection with the Service. This Software is updated automatically and, if such Software is designed for use on a mobile device, then a compatible mobile device is required for use.
The license being granted to Customer hereunder does not constitute a sale of the Software or any copy thereof, and as between Clozer and Customer, Clozer retains all right, title, and interest in the Software. Clozer will use technical and organizational security measures to protect the integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or processing of such Customer Data. For purposes of this Subscriber Agreement, “Customer Data” shall mean the structured data and any files or attachments submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer and its End Users. Clozer will take steps to protect the Service and Software from any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service or Software. If Customer has engaged a third-party purchasing agent to purchase seats on its behalf, such purchasing agent is not the Customer, and Customer agrees that Customer is still solely responsible for compliance with this Subscriber Agreement.
2.1 Administration of Customer’s Account
Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users in accordance with applicable local laws. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscriber Agreement. Clozer shall not be held liable for any actions on the part of Customer’s Administrator(s).
2.2 End User Conduct; Compliance
Customer is responsible for use of the Service by its End Users and for their compliance with Clozer’s Terms of Service. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use, and disclose the content posted by the End Users on the Service; and (ii) to allow Clozer to provide the Administrator with access to such End User content. The Service is not authorized for use by persons under the age of eighteen (18) and Customer will ensure that it does not allow any person under 18 to use the Service. Customer will promptly notify Clozer if it becomes aware of any unauthorized access to Customer’s account or the Service.
Customer will not: (i) rent, sell, resell or lease the Service to any third party; (ii) use the Service for any purpose where either the use or the failure of the Service might lead to personal injury, death or physical damage; or (ii) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.
Clozer may request that Customer suspend the account of any End User who: (i) violates the Terms of Service; or (ii) is using the Service in a manner that Clozer reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for Clozer. If Customer fails to promptly suspend or terminate such End User’s account, Clozer reserves the right to do so.
Customer’s Use of Third Party Services
Clozer does not warrant or support any third party service (e.g., a service that utilizes the Clozer API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
Intellectual Property Rights
4.1 Limited License to Use Customer Content
Customer hereby grants to Clozer a limited, nonexclusive and nontransferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display the Customer Data for the limited purpose of (i) providing the Service and associated customer support to Customer; (ii) displaying the Customer Data to the End Users; and (iii) analyzing and improving the Service.
4.2 Reservation of Rights
Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Clozer any rights or interest in or to the Customer Data or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Clozer Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
4.3 Use of Customer Suggestions
Clozer may incorporate into the Service any suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of Clozer. Clozer may also share and publish aggregate, anonymized data about the use of our Service by our customers.
4.4 Clozer Customer List
Clozer may include Customer’s name in a list of Clozer’s Customers online and in print and electronic marketing materials.
Fees and Payment
By subscribing to the Service and providing payment account information, Customer agrees to these payment terms and conditions. If Customer subscribes to the Service under any promotional subscription fee, some additional restrictions may apply. These restrictions, if any, will be provided to Customer before Customer signs up for the Service that is subject to the promotion. Free or discounted introductory offers are only available to new users of the Service, except where expressly stated. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Clozer to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and require recurring payments. Fees will be charged on an annual or monthly basis based on Customer’s subscription. Clozer may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has terminated the Service or Clozer terminates the Service. Customer must cancel the Service prior to its renewal date in order to avoid billing of the next period’s fee. If Customer chooses to cancel the Service, Customer may use the Service until the end of the current period but will not be issued a refund for the most recently (or any previously) charged fees. Customer can cancel Service anytime online by going into the Customer’s account settings prior to its renewal date if Customer has a monthly plan.
Clozer may revise fee rates and/or the billable amount structure for the Service from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in fees at least thirty (30) days prior. Customer is responsible for providing complete and accurate billing information to Clozer. Customer will be billed for the appropriate plan based on the total number of unique users, including those with limited access. Clozer may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on Clozer’s net income) and Clozer will charge tax when required to do so by law.
If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Subscriber Agreement that are clearly marked as such on the face of the Purchase Order, any terms and conditions on a Customer purchase order that conflict with this Subscriber Agreement will not apply and are null and void.
Term and Termination
This Subscriber Agreement will remain in effect until Customer terminates its subscription to the Service or until this Subscriber Agreement is otherwise terminated as provided for herein. Customer may terminate this Subscriber Agreement at any time. In addition, either party may terminate this Subscriber Agreement if: (a) the other party is in material breach and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Subscriber Agreement: Sections 4.2 and 4.3, 6-9, 12, and 13.
During the course of their performance under this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to the Customer, Confidential Information also includes the Customer Data.
Except as otherwise expressly permitted under this Service Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. Clozer may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing Clozer’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Customer may disclose Clozer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
The obligations set forth in Section 7(b) above shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.
8.1 By Customer
Customer hereby agrees to indemnify, defend and hold harmless Clozer, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “Clozer Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of any claim by a third party against Clozer or the Clozer Affiliates regarding: (i) use of or access to the Service by Customer or its End Users in violation of this Subscriber Agreement or our Terms of Service; or (ii) any data or Customer Data transmitted or received through, or posted or stored in, Customer’s account.
8.2 By Clozer
Clozer hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates to the extent based on an allegation that the Service or Clozer’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Clozer have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by Clozer; (ii) use of any third party app developed using Clozer’s API; or (iii) any content, information, or data provided by Customer, End Users, or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY VIOLATION BY CLOZER OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8.3 Infringement Claims
If the Service becomes, or in Clozer’s reasonable judgment is likely to become, the subject of a claim of infringement, then Clozer may: (i) obtain the right, at Clozer’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that it is no longer infringing. If Clozer, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Clozer may suspend or terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.
The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL CLOZER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CLOZER BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO CLOZER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Hosting of the Service; Export Restrictions
The Service is controlled and operated from facilities in the United States of America (“U.S.”). Clozer makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable U.S. and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the U.S., Customer agrees that Clozer may transfer, store and process Customer Data in locations other than Customer’s country.
The Service may not be used in any country that is subject to an embargo by the U.S. and Customer may not use the Service in violation of any export restriction or embargo by the U.S. or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the U.S. government.
Clozer may revise this Subscriber Agreement from time to time by posting the modified version on its website at least twenty (20) days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Clozer’s obligations unless affirmatively agreed to by Customer in advance. If, in Clozer’s sole and reasonable discretion, the modifications being proposed are material, Clozer will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Clozer’s obligations hereunder, Customer agrees to be bound by such modifications.
Governing Law; Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
This Subscriber Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. The parties agree that the Subscriber Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Customer Agrees to contact Clozer to attempt to resolve the dispute in good faith.
Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in San Francisco, California. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Subscriber Agreement, including, but not limited to any claim that all or any part of the Subscriber Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in San Francisco, California. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in San Francisco, California.
Exception for Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Service (collectively, “IP Claims”) shall not be subject to arbitration.
13.1 Relationship of the Parties
The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
13.2 Force Majeure
Except for payment obligations, neither Clozer nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.
13.4 Entire Agreement
This Subscriber Agreement, together with any Customer purchase order or order form associated herewith (as limited by Section 6), constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect
13.5 No Waiver
No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
13.6 Communications from Clozer
You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in connection with the Service (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the Clozer website or through the Service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
13.7 U.S. Government Agencies
If you are a U.S. Government agency utilizing Clozer’s premium Service in an official capacity, your use of the Service shall be subject to this Subscriber Agreement and an amendment applicable for U.S. Government Customers.
For questions about these or any Clozer terms or policies, email us at email@example.com.