This Master Subscription Agreement (“Agreement”) is entered into between Clari, Inc. (“Clari”) and the customer identified above (“Customer”). This Agreement sets forth the terms and conditions under which Customer may use the Services and permits Customer to purchase Services pursuant to Order Agreements referencing this Agreement. Each party represents that the person signing this Agreement has the authority to bind such party to this Agreement.
1.1 Provision of Services. Customer and End Users may access and use the Services in accordance with this Agreement and the Documentation. Clari will provide the Service in accordance with the Service Level Agreement set forth in Exhibit A.
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.
1.4. 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
2. Customer Use of Services
2.1. Subscriptions. Except as set forth in the Order Agreement, 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 Agreement 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 material breach of this Agreement. Clari will use commercially reasonable efforts to provide prompt notice of any impending suspension and provide Customer a commercially reasonable opportunity to cure any issue prior to suspending Customer or End User’s right to use the Services, and in any case, any suspension will be narrowly tailored to mitigate the issue.
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 for Customer
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 Agreement. All payments are due in U.S. dollars unless otherwise indicated on the Order Agreement 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 Agreement 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 Agreement, if applicable, or within 30 days from invoice send date. If Customer provides Clari with credit card information for payment, Customer acknowledges that an invoice may not be sent and Customer authorizes Clari to charge the credit card for the Services listed in the Order Agreement for the Subscription Term or for additional subscriptions added for the Subscription Term. 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 Agreement. 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. The parties may execute a new Order Agreement to renew this Agreement for additional Subscription Terms
5.2. Termination. Either party may terminate this Agreement if (a) the other party is in material breach (including for a material breach of the SLA or material non-performance of work pursuant to any SOW) 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
5.3. 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), 5.3 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnity), 9 (Limitation of Liability), 10 (Disputes), 11 (General Provisions), 12(Definitions).
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 Agreements, 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, or (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. Warranties and Disclaimers
7.1. Customer Data. Customer warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement.
7.2. Clari Warranties. Clari warrants that (a) the Service will be provided in a professional and competent manner in accordance with industry standards, (b) the Service provided hereunder is and will be in compliance with all applicable federal, state and local laws and government rules and regulations and (c) the Service will not cause any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code to be installed or introduced on Customer’s computer, telecommunication or other information systems. In the event Clari is not able to cure any breach of the warranty within thirty (30) days of written notice thereof from Customer, Customer will at its option have the right to (i) terminate this Agreement and receive a refund of any fees Customer has prepaid for the Service that it has not received as of the date of the warranty claim or (ii) elect as Customer’s sole remedy to continue the time Clari has to cure the defect and receive a reduction in fees or a credit to be agreed upon by both parties for each month thereafter that the defect remains uncured
7.3. 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.
7.4. 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.
8.1. By Customer. 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) or 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 and provide Customer with a pro-rata refund of any pre-paid, unused Fees.
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 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).
10.1. 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. Entire Agreement. All attachments to the Agreement, SOWs, and Order Agreements 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 Agreement, the SOW, the Agreement, and the Documentation.
11.2. Governing Law. This Agreement will be governed by California law except for its conflicts of laws principles.
11.3. 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
11.4. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld; except, however, either party may assign this Agreement in its entirety, without the other party’s consent, 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. If a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then the other party may terminate this Agreement upon written notice. In the event of a termination by Clari, Clari will offer a pro rata refund of prepaid fees for the Services
11.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties
11.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement
11.7. 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.
11.8. Force Majeure. Neither party will 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
11.9. 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
11.10. 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
11.11. 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
12.1. “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 Agreement.
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 Agreement and continuing for the period set forth in the Order Agreement.
12.10. “Order Agreement” means the ordering document or page for the Services.
12.11. “Services” means the products and services ordered by Customer under an Order Agreement 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.
Clari Service Level Agreement
This Clari Service Level Agreement (“SLA”) is a policy governing the use of the Services under the terms of the Clari Master Subscription Agreement (the “MSA”) between Clari and Customer. Unless otherwise provided herein, this SLA is subject to the terms of the MSA and capitalized terms not otherwise defined will have the meaning set forth in the MSA. This SLA states Customer’s sole and exclusive remedy for any failure by Clari to meet the Service Commitment (as defined below).
Clari will use commercially reasonable efforts to make Services available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any calendar month (the “Service Commitment”). In the event the Services do not meet the Service Commitment, Customer will be eligible to receive Service Credits by following the process in this SLA.
“Downtime” means loss of external connectivity by all End Users.
“Downtime Period” means a period of at least five consecutive minutes of Downtime.
“Monthly Uptime Percentage” means the total number of minutes in a month, minus the number of Downtime minutes suffered during Downtime Periods in a month, divided by the total number of minutes in a month.
“Planned Maintenance” means period of scheduled maintenance that may result in loss of external connectivity by all End Users.
“Emergency Maintenance” means period of un-scheduled maintenance that may result in loss of external connectivity by all End Users.
“Service Credit” is a dollar credit based on pro-rated fees, calculated as set forth below, that Clari may credit to Customer’s next invoice for failure to meet the Service Commitment.
Monthly Uptime Percentage
Less than 99.9% but equal to or greater than 99.0%
Less than 99.0% but equal to or greater than 95.0%
Less than 95.0%
Credit Request Procedures
To receive a Service Credit, Customer must submit a claim by contacting Clari support via email at firstname.lastname@example.org within 30 days from the time Customer becomes eligible to receive the Service Credit. The claim must include the dates and times of each Downtime Period. Failure to comply with these requirements will forfeit Customer’s right to receive a Service Credit. The maximum amount of Service Credits for a month will not exceed 50% of the fees applicable to that month. Clari’s proprietary system tracking Service Downtime will be the sole basis for resolution of any dispute regarding Service Credits.
The Service Commitment does not apply to: (a) any Beta Services, (b) use of the Services not in compliance with the Documentation, (c) any suspension or termination of rights to use the Services permitted under the MSA, (d) any usage limits, (e) loss of connectivity caused by factors outside of Clari’s reasonable control, including resulting from (i) any force majeure event including systemic Internet failures, (ii) Customer’s software or hardware, or third party software or hardware, or both, (iii) failure of Customer’s network connection, (iv) Third-Party Services, or (v) activity in violation of the MSA, or (f) planned or emergency maintenance.
Clari may, at its sole discretion [but no more than three instances per month], perform Planned Maintenance that may result in loss of external connectivity for a period not to exceed four (4) hours in a single instance. Clari will communicate the date and time of Planned Maintenance to the Administrator and on the Clari status page at https://clari.statuspage.io at least three (3) business days in advance.
On rare occasions, Clari may need to perform Emergency Maintenance in order to protect the integrity of the Services due to security issues, virus attacks, spam issues, or other unforeseen circumstances. Emergency Maintenance may occur immediately with no advance notification. However, Clari will notify the Administrator and communicate on the Clari status page at https://clari.statuspage.io regarding the Emergency Maintenance as soon as possible.