Clari Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) is entered into between Clari, Inc. (“Clari”) and the customer (“Customer”) identified in the corresponding Order Forms referencing this Agreement as of the Effective Date.  This Agreement sets forth the terms and conditions under which Customer may use the Services.  By accepting this Agreement, including by executing an Order Form that references this Agreement, Customer agrees to the terms of this Agreement and represents that the person signing the Order Form has the authority to bind Customer to this Agreement.

1. Services

1.1 Provision of Services.  Customer and End Users may access and use the Services in accordance with this Agreement and the Documentation.

1.2 Data Exchange The Services allow Customer to import data from and export data to Third-Party Services. By using the Services, Customer authorizes Clari to transfer, store, and process Customer Data from End Users and Customer’s Third-Party Services accounts on its behalf. By using the Services,Customer also authorizes Clari to export Customer Data to Customer’s Third-Party Services accounts on its behalf. If Customer uses a Third-Party Service, Clari will not be responsible for any act or omission of the Third-Party Service, including the Third-Party Service’s access to, use, provision, modification, or deletion of Customer Data. Clari does not warrant or support any Third-Party Service.

1.3. Security & Privacy.  Clari will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data. Clari has certified its compliance with the EU-U.S. Privacy Shield and the Swiss-U.S. Privacy Shield Framework and will transfer, store, and process Customer Data in accordance with Clari’s privacy policy.  Customer agrees that Clari and its sub-processors may transfer, store, and process Customer Data in locations other than Customer’s country.

1.4. Software.  Some Services allow Customer and End Users to download Clari software, which may be updated automatically.  Clari grants Customer a limited, non-exclusive right during the Term to use such software only to access the Services.

1.5. Changes.  Clari may, at its discretion, change or update the Services from time to time.  Clari will notify Customer in advance of changes to the Services that materially reduce their functionality. 

1.6. Implementation Services.  The parties may enter into a SOW describing configuration, training, or other implementation services to be provided by Clari or its contractors to Customer.  Clari will be responsible for the provision of services specified in the SOW.

1.7. Support.  Clari will provide standard support for the Services to Customer at no additional charge.

2. Customer Use of Services

2.1. Subscriptions.  Except as set forth in the Order Form, Services are made available as subscriptions and additional End User subscriptions may be added during the Subscription Term at the same price applicable to that subscription type, prorated for the remainder of the then-current Subscription Term.

2.2. Customer Responsibilities. Customer and End Users may only use the Services in accordance with this Agreement. Customer will be responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users. Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. Customer is responsible for maintaining secure access by End Users to the Services. Customer may not permit sharing of End User accounts and passwords.

2.3. Compliance.  Customer will obtain any consents and comply with any laws necessary to allow the operation of the Services and to permit Clari to process, store, and transfer Customer Data from End Users and Customer’s Third-Party Services accounts.

2.4. Usage Limits.  Use of the Services may be subject to usage limits set forth in Customer’s Order Form or the Documentation.

2.5. Restrictions.  Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Service, (e) use the Service to create any other product or service, (f) breach or circumvent any security or authentication measures of the Service, (g) interfere with or disrupt any part of the Services, (h) submit viruses, worms, Trojan horses, corrupted files, or other destructive content to the Services, or (i) use a robot or other automated means to access the Services.

2.6. Suspension.  Clari may suspend Customer’s or End User’s right to use the Services if (a) Customer or End User’s use of the Services poses a security risk to or may adversely affect the Services, Clari’s systems and infrastructure, or a third party, (b) Customer or End User’s use of the Services could subject Clari to liability, or (c) Customer is in breach of this Agreement.  Clari will use commercially reasonable efforts to provide prompt notice of a suspension and narrowly tailor the suspension.

3. Intellectual Property Rights

3.1. Reservation of Rights. Except for the rights granted in Section 1.1, Clari and its licensors own and reserve all right, title, and interest in and to the Clari Technology. 

3.2. Customer License.  Customer grants Clari and its contractors a limited, non-exclusive right to use, copy, create derivative works based on, and display your Customer Data as reasonably necessary for Clari to provide, maintain, and improve the Services.  Clari may display Customer’s logo within designated areas of the Customer’s Services account. 

3.3. Suggestions.  Customer agrees that with respect to any Suggestions, Clari may, in its discretion and for any purpose, (a) use, modify, and incorporate into Clari’s products and services and (b) license or sublicense the Suggestions without obligation to Customer.

3.4. Customer List.  Clari may use Customer’s name, logo, and marks to identify Customer as a Clari customer on Clari’s website and in other marketing materials.  Customer also agrees that Clari may verbally reference Customer as a customer of the Services.

4. Fees & Payment

4.1. Fees.  Customer will pay Clari the fees for the Services set forth in the Order Form.  All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice.  Customer is responsible for providing complete and accurate billing and contact information to Clari and updating Clari of any changes.  All fees paid are non-refundable and not subject to set-off.

4.2. Invoicing & Payment. Unless otherwise set forth in the Order Form or any SOW, all fees will be invoiced in advance. All invoices issued under this Agreement are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.

4.3. Late Payments.  Past due amounts are subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full.  Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Clari in collecting past due amounts.  Clari may suspend or terminate the Services for material breach for fees that are past due.

4.4. Taxes.   Customer is responsible for all taxes, except those directly relating to Clari’s net income, gross receipts, or capital stock.  Clari will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides Clari with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.5. Future Functionality.  Customer agrees that it has not relied on the availability of any future functionality of the Service or any other future product or service in executing this Agreement or any Order Form.  Customer acknowledges that information provided by Clari regarding future functionality should not be relied upon to make a purchase decision.

5. Term & Termination

5.1. Agreement Term. The Agreement will remain in effect for the Term.

5.2. Subscription Terms. Unless otherwise set forth in an Order Form, subscriptions will automatically renew for additional periods equal to the shorter of the expiring Subscription Term or 1 year, unless either party gives the other notice of non-renewal at least 30 days before the end of the Subscription Term.  Clari will provide notice of any Services price increases at least 60 days in advance of any renewal. 

5.3. Termination.  Either party may terminate this Agreement if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings.  Clari may also terminate the Agreement if it has the right to suspend the Services under Section 2.6 or in order to comply with law or regulation.

5.4. Effect of Termination.  If this Agreement expires or is terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, (b) upon request made by Customer within 45 days after the effective date of termination or expiration of the Agreement, Clari will make forecast data and reports not available to Customer through Third-Party Services available to Customer for export or download, (c) after 45 days Clari will have no obligation to maintain any Customer Data, and (d) the following Sections will survive: 3 (Intellectual Property Rights), 4 (Fees & Payment), 5.4 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnity), 9 (Limitation of Liability), 10 (Disputes), 11 (General Provisions), 12 (Definitions).

6. Confidentiality

6.1. Definition of Confidential Information.  “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances.  This Agreement, Order Forms, and the Clari Technology will be Confidential Information of Clari.  Customer Data will be Confidential Information of Customer.  Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.

6.2. Obligations.  The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of this Agreement and (b) except as authorized or directed by the Customer to provide Confidential Information to a Third-Party Service, limit access to the Disclosing Party’s Confidential Information to its and its Affiliate’s employees and contractors who need access to the Confidential Information for any purpose not outside of the scope of this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in this Agreement.

6.3. Compelled Disclosure.  Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure.  If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.

7. Disclaimers

7.1. General.  TO THE FULLEST EXTENT PERMITTED BY LAW, CLARI AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATORY OR OTHERWISE REGARDING THE SERVICES OR ANY OUTPUT FROM THE SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE OUTPUT OF THE SERVICES IS ACCURATE OR RELIABLE.  THE SERVICES AND ANY OUTPUT FROM THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  

7.2. Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, (d) Beta Services may not be subject to the same security or audits as the Services, and (e) Clari provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services. 

8. Indemnification

8.1. Customer will defend Clari and its Affiliates from and against all third-party claims, lawsuits, and demands arising out of an allegation regarding (a) Customer Data, or (b) use of the Services by Customer or End Users in violation of this Agreement, and will indemnify Clari and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.

8.2. By Clari.  Clari will defend Customer from and against all third-party claims, lawsuits, and demands arising out of an allegation that Clari’s technology used to provide the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.  In no event will Clari have obligations or liability under this Section arising from: (a) use of the Services in a modified form or in combination with materials or technology not furnished by Clari, and (b) any content, information, or data provided by Customer, End Users, or other third parties.  For any claim covered by this Section, Clari will, at its election, either (i) procure the rights to use the portion of the Services alleged to be infringing, (ii) replace the alleged infringing portion of the Services with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services or this Agreement.

8.3. General.  The party seeking indemnification will promptly notify the other party of the claim and cooperate with the party in defending the claim.  The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense.  THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

9. Limitation of Liability

9.1. Limitation on Indirect Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  

9.2. Liability Cap.  NEITHER PARTY’S NOR ITS AFFILIATES’, SUPPLIERS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT AND ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES AND OUTPUT OF THE SERVICES WILL EXCEED THE LESSER OF $100,000 OR THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

9.3. Excluded Claims.  Section 9.1 and 9.2 do not apply with respect to claims arising under Section 2 (Customer Use of Services) and Section 4 (Fees & Payment). 

10. Disputes

10.1. Informal Resolution.  Clari wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately.  Before filing a claim, Clari and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion.  After 15 days, either party may bring a formal proceeding.

10.2. Arbitration Agreement. Clari and Customer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below.  Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by one arbitrator.  The arbitration will take place in Santa Clara County in the English language.  Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of intellectual property infringement without first engaging in the informal resolution process described above.  Clari and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of Santa Clara County, California.

11. General Provisions

11.1. Agreement Modification. Clari may modify this Agreement periodically.  If an update will affect Customer’s use of the Services, Clari will notify Customer prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately).  Otherwise, updates will be effective as of the date posted on this website.  By continuing to use the Services after the changes become effective, Customer agrees to be bound by the modified Agreement.  If Customer does not agree to the modified Agreement for the Services, Customer may terminate the Services within 30 days of receiving notice of the change.

11.2. Entire Agreement. All attachments to the Agreement, SOWs, and Order Forms executed by the parties are hereby incorporated into the Agreement by reference.  This Agreement constitutes the entire agreement between Customer and Clari with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements.  Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties.  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Form, the SOW, the Agreement, and the Documentation.

11.3. Governing Law.  This Agreement will be governed by California law except for its conflicts of laws principles. 

11.4. Notices.  Notices must be sent by first class mail or overnight courier and are deemed given when received.  Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent.  Notices to Clari must be sent to Clari, Inc., Attn: Legal Department, 1154 Sonora Court, Sunnyvale, CA 94086.

11.5. Assignment.  Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement, whether by operation of law or otherwise, without Clari’s consent.  Clari may assign this Agreement in its entirety, without notice, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the restrictions in this Section, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.  Any other attempt to transfer or assign is void.

11.6. Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, joint venture, or agency relationship between the parties.

11.7. Third-Party Beneficiaries.  There are no third-party beneficiaries under this Agreement.

11.8. Construction.  Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement.  “Including” and “include” will be construed to mean “including without limitation.”

11.9. Force Majeure.  Clari will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, and Internet disturbance) that was beyond its reasonable control.

11.10. Waiver.  No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right.  A waiver of a default is not a waiver of any subsequent default.

11.11. Severability.  If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable.  The remaining provisions of the Agreement will remain in effect.

11.12. Export Compliance.  The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its End Users’ use of the Services.  Customer will not permit End Users to use the Services from a U.S. embargoed country.

12. Definitions

12.1. “Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.

12.2. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means the ability to direct the management and policies of an entity.

12.3. “Beta Services” means products or features available to Customer on a trial, beta, early access, or similar basis.

12.4. “Clari Technology” means the Services, Documentation, and Clari’s trademarks, logos, and other brand features.

12.5. “Customer Data” means data and information submitted to the Services by Customer or its End Users, including data and information submitted to the Services from Third-Party Services authorized by Customer.

12.6. “Documentation” means any Clari-provided written documentation and policies.

12.7. “Effective Date” means the earlier of the effective date or subscription start date set forth on Customer’s first Order Form.

12.8. “End Users” means users of Customer’s Services account.  End Users may include Customer’s and its Affiliate’s employees, agents, and consultants.

12.9. “Initial Subscription Term” means the term for the applicable Services starting on the subscription start date set forth on the Customer’s first Order Form and continuing for the period set forth in the Order Form.

12.10. “Order Form” means the ordering document or page for the Services.

12.11. “Services” means the products and services ordered by Customer under an Order Form or otherwise provided by Clari and used by Customer under this Agreement.

12.12. “SOW” means statement of work.

12.13. “Subscription Term” means the Initial Subscription Term or any renewal terms for the Services.

12.14. “Suggestions” means feedback, comments, or suggestions that Customer or End Users provide to Clari or its contractors.

12.15. “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (a) the last Subscription Term has expired or (b) until the Agreement is terminated.

12.16. “Third-Party Services” means products or services offered by a third party that interoperate with the Services for which Customer has an account and has connected the account with the Services.





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