TERMS AND CONDITIONS
The following Terms and Conditions shall apply to all users (hereafter “Customer” or “Customers”) of the website, http://tryclearcut.com/, along with any and all software made available thereupon that has been developed and provided, in whole or in part, by ClearCut Corporation (“Company”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEB SITE OR COMPANY’S SERVICES. USE OF THIS WEB SITE OR COMPANY’S SERVICE(S) SHALL BE CONSIDERED ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Subscription Provided.
(a) Subject to, and in accordance with, these Terms and Conditions, Company grants to Customer and Customer accepts from Company a nonexclusive, terminable, nontransferable license to use the Company’s Software-as-a-Service and such other related services (collectively, the “Software”) solely for lawful purposes for which the Software is intended and consistent with these Terms and Conditions (the “License”).
(b) This License is intended and shall be solely limited to permit Customer to create and maintain up to a specific number of projects (hereinafter referred to as “Projects”) for use by end-users that are Customer’s owners, employees, and agents (“Project Users”). The maximum number of Projects available for such use shall be dependent upon the pricing structure selected and paid for by Customer consistent with Section 3.
(c) Company may develop updates to and/or new releases to the Software in the future, and Company reserves the right to install such updates and/or new releases in the Software at Company’s sole discretion. Unless otherwise specified, any such upgrade or new release will continue to be governed by these Terms and Conditions.
(d) Company shall have the right to enforce any and all rights under these Terms and Conditions against any Project User. Any and all breaches of these Terms and Conditions by a Project User accessing the Software through Customer’s License may, in the sole discussion of Company, also be considered a breach by that Customer.
(e) Company may in its sole discretion modify these Terms and Conditions, and such modification shall be effective immediately upon posting or upon other provision to Customer, including, without limitation, notice by electronic mail.
2. Term. Customer’s License as set forth above in Section 1 shall be on a month-to-month basis dependent upon Customer’s payment for the agreed upon pricing structure. Failure to make any and all required payments when due shall provide Company to terminate Customer’s access, in whole or in part, to the Software as set forth in Section 4 below.
3. Fees.
(a) The monthly fees (the “Fees”) for Customer’s License shall be based upon the number of projects associated with Customer, as set forth on the pricing schedule (the “Pricing Schedule”) posted on Company’s website. Company reserves the right to modify the Pricing Schedule at any time, by posting on Company’s website said revised Pricing Schedule and its effective date not less than thirty (30) days prior to its effective date.
(b) Except as set forth in writing by Company, Customer shall pay all Fees to Company in U.S. Dollars. Recurring monthly fees shall be paid in monthly installments due on or before the first day of each month.
(c) All payments not made when due from Customer hereunder shall bear interest at a rate of one percent (1%) per month. Customer shall pay any tax, tariff and/or duty (and any related interest and penalties), however designed, imposed as a result of Customer’s purchase and/or use of the Software.
4. Termination.
(a) In the event of a breach or default by Customer in the performance of these Terms and Conditions, Company shall give notice to Customer specifying the nature and extent of the breach/default (the “Notice of Breach”). Customer shall then have thirty (30) days thereafter to cure any such curable breach or default. If such breach or default is not cured within said thirty (30) day period or is incurable then Company may terminate Customer’s License, in whole or in part, at any time thereafter. Notwithstanding the foregoing, if Customer’s default relates to or arises from a second or more consecutive failure to pay Company’s Fees when due, Company may terminate Customer’s License, in whole or in part, effective immediately upon notification of such failure.
(b) In the event that a Project User violates any requirement of these Terms and Conditions or otherwise uses the Software for any unintended and/or unlawful purpose, Company shall have the right to immediately terminate said user’s access to the Software without breaching its obligations under these Terms and Conditions. In the event of a termination under this Section 4(b), Company shall make reasonable efforts to notify Customer of such a termination.
(c) Upon expiration or termination of Customer’s License, for any or no reason, Customer will cease usage of the Software, provided that Customer shall have sixty (60) days to remove all Customer Data (as defined below) to the extent necessary to facilitate Customer’s transition of its software, data and other contents to an alternate software program, provider or server. Company may elect, in its sole discretion and without further notice to Customer, to remove, erase, or destroy Customer Data (as defined below) in Company’s possession more than sixty (60) days after the termination or expiration of Customer’s License for any reason.
(d) Sections 4, 5, 6, 8, 9 and 10 of these Terms and Conditions shall survive the non-renewal or termination, for any or no reason, of Customer’s License.
5. Intellectual Property Rights.
(a) Company shall not gain any ownership interest in the data uploaded, created, modified or otherwise stored by Customer through the use of the Software.
(b) Customer acknowledges and agrees that ownership of the Software and all related intellectual property, copyrights and trademarks thereto are and shall remain owned exclusively by Company. Customer further agrees that Company shall have full and exclusive ownership of any and all modifications, enhancements, updates, supplements and other materials, in whatever form, related or ancillary to the Software, that is prepared by, for or at the direction of any person or entity (“Supplemental Materials”), and all intellectual property, copyrights and trademarks thereto. Customer agrees and recognizes that the Software and Supplemental Materials, and any other related data and materials supplied to Customer pursuant to these Terms and Conditions, in any form, are confidential and proprietary trade secrets of Company protected by law, are of substantial value to Company, and their use and disclosure must be carefully and continuously controlled. Customer shall (i) take all necessary and reasonable steps to ensure that no unauthorized access, copies or use is made of the Software and Supplemental Materials and (ii) notify Company immediately of the existence of circumstances surrounding any unauthorized knowledge, possession, copying or use of the Software and/or Supplemental Materials, or any part thereof, by any person or entity.
(c) Customer shall not: (i) download, make copies, or attempt to download or make copies of the Software without the express, prior written consent of Company; (ii) sublicense, assign, transfer, or distribute all or any part of the Software without Company’s prior written consent; (iii) directly or indirectly, or permit others to use, copy, duplicate or furnish to others any physical or electronic version of the Software and/or Supplemental Materials; (iv) remove any copyright, trademark or other notice; (v) change or modify the Software or Supplemental Materials or create derivative works therefrom without Company's prior written consent; or (vi) reverse assemble, reverse compile, translate, or otherwise attempt to discover the source code of all or any part of the Software.
(d) Without prejudice to the rights and remedies otherwise available to Company, Customer acknowledges and agrees that Customer’s breach of any of the terms and conditions of this Section 5 would cause irreparable harm to Company and that money damages would not be a sufficient remedy for such breach; accordingly, Company shall be entitled to equitable relief by way of preliminary and/or permanent injunction or specific performance to prevent and/or remedy any such breach.
6. Ownership Rights. Customer acknowledges and agrees that all Company property utilized for the provision of the Software, including, without limitation, servers, computer equipment, and software (“Company Technology”), are and shall remain exclusively owned by or licensed to Company. Customer shall make no use of Company Technology other than for the Customer purposes consistent with Section 1 without the prior written consent of the Company.
7. Customer Privacy. Company shall post on its website and make all reasonable efforts to comply with its privacy policy regarding Customer Data, as that term is defined therein. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES SHOULD THESE TERMS AND CONDITIONS BE DEEMED TO OBLIGATE COMPANY TO COMPLY WITH ANY INTERNATIONAL, FEDERAL, STATE, OR LOCAL LAW NOT OTHERWISE APPLICABLE OR BINDING UPON COMPANY.
8. Disclaimer of Warranties and Limitation of Remedies. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS AND CONDITIONS, THE SOFTWARE, COMPANY TECHNOLOGY, ANY SUPPLEMENTAL MATERIALS, OR ANY OTHER SERVICES OR GOODS PROVIDED BY COMPANY IN CONNECTION THEREWITH, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. In the event Company is unable to provide access to a working version of the Software during any ten (10) consecutive day period, Customer may terminate Customer’s License and obligations under these Terms and Conditions upon notice in writing to Company of Customer's desire to terminate and a period of ten (10) days to cure after such notice. In the event Customer terminates pursuant to the previous sentence, all of fees pre-paid to Company and attributable to periods after the termination date shall be returned to Customer. THE FOREGOING IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY HEREUNDER. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER FORESEEABLE OR NOT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA OF ANY KIND, OR ANY OTHER PECUNIARY LOSS, OR CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF THE USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9. Risk of Data Loss. Regardless of the location of Company Technology, Customer, and not Company, shall bear the entire risk of loss to the data and other contents of or placed by Customer on Company Technology. Customer shall be responsible for obtaining, maintaining, backing-up, securing and insuring all data and other contents of or placed by Customer on Company Technology and all use thereof.
10. Indemnification. Customer shall indemnify, defend and hold harmless Company, and its officers, directors, employees and representatives, from and against any and all claims, demands, losses, actions and costs (including, without limitation, reasonable attorneys’ fees) arising from or related to Customer’s use of the Software, from any breach or default by Customer under these Terms and Conditions, or from any use of the Projects by Project Users who received access by way of Customer, including, without limitation, intellectual property disputes relating to or arising from works created using the Software or otherwise stored on Company Technology.
11. Conflicts Between Language. To the extent that irreconcilable conflicts arise between these Terms and Conditions and other language on Company’s website or Company’s Privacy Policy, these Terms and Conditions shall control.
12. Miscellaneous
(a) Entire Agreement and Modification. These Terms and Conditions constitute the full and entire understanding and agreement between the parties hereto with regard to the subject matter hereof, and supersedes all prior agreements, understandings, inducements or conditions, express or implied, oral or written, except as contained herein.
(b) Cost of Enforcement. If Company is required to engage in any proceedings, legal or otherwise to enforce its rights under these Terms and Conditions, Company shall be entitled to recover from Customer, in addition to any other sums due, its reasonable attorneys’ fees, costs and disbursements involved in said proceedings in which Company is the prevailing party.
(c) Successors and Assigns. These Terms and Conditions governing Customer’s License shall inure to the benefit of and be binding upon Company and Customer and their respective successors and permitted assigns. Customer’s License may not be assigned by Customer without the prior written consent of Company. Company’s interests in the Software or other related intellectual property may be assigned by Company without the consent of Customer, but in the event of such an assignment Company shall provide notice to Customer.
(d) Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect and in no way be affected, impaired or invalidated.
(e) Governing Law. These Terms and Conditions and its validity, interpretation, performance and enforcement shall be governed by the internal laws of the State of Delaware, U.S.A., notwithstanding any conflict-of-law rules. Any disputes hereunder shall be litigated exclusively in the state or federal courts having jurisdiction in the State of Delaware, by non-jury trial, and Customer hereby agrees and consents to such exclusive jurisdiction and waives all rights to a jury trial. Company and Customer also each hereby agree that all service of process, including any instrument to initiate suit, shall be effective if served in accordance with Delaware law.
(f) Force Majeure. Neither Company nor Customer shall be responsible for failures or interruptions of communications facilities or equipment of third parties, accidental or unintended temporary interruptions of internet or network service, labor strikes or slowdowns, shortages of resources or materials, natural disasters, acts of war or terrorism, world events, delay or disruption of shipments or deliveries, trespass or interference of third parties, or similar events or circumstances outside its reasonable control.
(g) Waivers. No waiver by any party of any condition, or the breach of any term or covenant contained in these Terms and Conditions, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition.
(h) Interpretation. Headings contained herein are for convenience of reference only and are not to be considered in construing these Terms and Conditions. Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context indicates is appropriate. The word “including” when used herein is intended to be exemplary and inclusive of the word or phrase it modifies, and is not intended to be exclusive or limiting. Both Customer and Company have been represented or have had the opportunity to be represented by counsel in connection with these Terms and Conditions, and thus these shall not be construed against either party by reason of such party or its counsel having drafted these Terms and Conditions.