Clari Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) permits Customer (as identified above) to purchase services provided by Clari Inc. (“Clari”) – all as set forth in a purchase order, statement of work, online purchase process, and/or other ordering document agreed to by the parties (each an “Order Form”). This Agreement sets forth the terms and conditions under which those services will be procured and used. This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer which reference this Agreement.  This Agreement includes any and all Order Forms executed by the parties. 

1. Services

1.1 Provision of Services.  Customer and its 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 Customer’s own Third-Party Services.  Customer authorizes Clari to transfer, store, and process Customer Data from Customer’s Third-Party Services accounts on its behalf.  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. 

1.3 Security and 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 agrees to implement procedures per Exhibit B (Data Processing Addendum).

1.4 Software.  If Clari provides any software code hereunder, Clari grants Customer a limited, non-exclusive right during the term of this Agreement to use such software (in object code form only) only to help access and use the Services. 

1.5 Changes.  Clari may, at its discretion, change or update the Services from time to time. If any changes substantially reduces the overall functionality of the Services, Customer may terminate this Agreement on ten (10) days’ written notice; provided that, during such period the parties will discuss the issue diligently and in good faith and Customer shall not have the right to terminate this Agreement if the parties agree on a workaround or alternative. If this Agreement does so terminate, Clari will provide Customer with a pro rata refund of all fees paid in advance for the remainder of the term.  

1.6 Implementation Services.  The parties may enter into a statement of work (“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 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. 

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 will 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 (except use by Clari or anyone gaining access through Clari personnel).  Customer is responsible for designating one or more administrators for its Services account (“Administrators”), 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, if any (such as seat limitations, data usage limitations, or transaction quantity limitations), set forth in the Order Form (“Usage Limits”). 

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) knowingly 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.  Without limiting Clari’s other rights hereunder, 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 is delinquent on its payment obligations hereunder, 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.

3. Intellectual Property Rights

3.1 Reservation of Rights. Except for the rights granted in Section 1, Clari and its licensors own and reserve all right, title, and interest in and to the Services.  

3.2 Customer License.  With respect to any data loaded into the Services, Clari will have an irrevocable, perpetual, non-exclusive right to internally use such data in an aggregated and deidentified form to help provide, maintain, and improve the Services.

3.3 Feedback.  If Customer provides Clari with any suggestions for improvement or enhancement, recommendations, or other feedback with respect to the Services (collectively, “Feedback”), Customer grants Clari a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. Clari agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. Feedback will not include any of Customer’s pre-existing Confidential Information. 

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.  Except as expressly set forth herein, all fees paid are non-refundable and not subject to set-off.

4.2 Invoicing & Payment. Unless otherwise set forth in an Order Form or SOW, all fees will be invoiced in advance and are due within thirty (30) days from the date of Clari’s invoice. 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 Form 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, if less, the highest rate permitted by law) from the payment due date until paid in full.  Customer will also reimburse Clari for all reasonable costs of collection (including attorneys’ fees).  

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. 

5. Term & Termination

5.1 Agreement Term. The Agreement begins on the Effective Date and will remain in effect until terminated as set out below.

5.2 Termination.  Either party may terminate this Agreement on thirty (30) days written notice if there are no Order Forms in effect. There is no other right to terminate for convenience. Order Forms cannot be terminated for convenience.  Unless otherwise expressly stated in an Order Form, all multi-year subscriptions are committed for the entire duration of the subscription (even if payable in annual installments).  Either party may also terminate this Agreement if: (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice (provided that, the notice must provide sufficient detail regarding the breach and expressly state the intent to terminate if not cured), or (b) the other party ceases its business operations or becomes subject to insolvency proceedings.

5.3 Effect of Termination.  If this Agreement is terminated as authorized hereunder, all Order Forms will terminate. If an Order Form is terminated by Customer pursuant to Sections 1.5 or 5.2(a) or (b), or this Agreement is terminated as set forth in Section 8.1, Clari will refund to Customer a pro rata portion of all fees paid in advance for the remainder of the term. In the event of any other termination, all fees that but for termination would otherwise have been due for the full term (i.e., as if termination had not occurred) are non-cancellable and non-refundable (and, if not paid, will become promptly due). If this Agreement 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 (Warranties; Disclaimers), 8 (Indemnity), 9 (Limitation on Liability), 10 (Disputes), 11 (General), 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 should be considered confidential to a reasonable person under the circumstances.  The Services, Documentation, and any software will be Confidential Information of Clari. Customer Data will be Confidential Information of Customer. This Agreement and all Order Forms will be Confidential Information of both parties. 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. Either party may disclose this Agreement and any Order Forms to its advisors and potential investors and acquirers (subject to reasonable confidentiality obligations). 

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; Disclaimers

7.1 Clari Warranties.  Clari warrants to Customer that (a) the Services will be provided in a professional and competent manner in accordance with industry standards, (b) the Services provided hereunder is and will be in compliance with all applicable federal, state and local laws and government rules and regulations and (c) the Services 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.

7.2 Customer Data.  Customer warrants to Clari 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.

7.3 General.  EXCEPT AS EXPREESSLY SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS”. CLARI MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED BY LAW, REGARDING THE SERVICES, ANY OUTPUT FROM THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CLARI DOES NOT WARRANT THAT THE OUTPUT OF THE SERVICES IS ACCURATE OR RELIABLE. NOTWITHSTANDING THE FOREGOING, ANY SERVICES PROVIDED ON A BETA, EVALUATION, OR OTHERWISE FREE BASIS, ARE PROVIDED “AS IS” WITH NO WARRANTIES OF ANY KIND (AND SUCH SERVICES MAY BE MODIFIED OR RESTRICTED BY CLARI IN ITS DISCRETION).

8. Indemnification

8.1 By Clari.  Clari will defend Customer from and against all third-party claims, actions, 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 refund as set forth in Section 5.3.

8.2 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. 

8.3 General.  The indemnifying party’s indemnity obligations are contingent on the indemnitee providing the indemnifying party with (i) prompt written notice of all claims and threats thereof (but failure to do so will not reduce the indemnifying party’s indemnity obligations except to the extent it is materially prejudiced by such failure), (ii) sole control of all defense and settlement activities, and (ii) all reasonably requested assistance with respect thereto. Any settlement requiring the indemnitee 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. The indemnitee may participate in the defense with its own counsel at its own expense.  THE INDEMNITIES ABOVE 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.  NEITHER PARTY, NOR THEIR AFFILIATES, PROVIDERS, OR CHANNEL PARTNERS, WILL BE LIABLE TO THE OTHER PARTY (OR ANY THIRD PARTY) IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OR PROFITS), EVEN IF FORESEEABLE.  

9.2 Liability Cap.  NEITHER PARTY’S, NOR ITS AFFILIATES’, PROVIDERS’, OR CHANNEL PARTNERS’, LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL EXCEED, IN THE AGGREGATE, THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES FOR THE THEN-CURRENT ANNUAL TERM (PROVIDED THAT, IF NO FEES HAVE BEEN PAID OR ARE PAYABLE, THE CAP WILL BE $1,000).

9.3 Excluded Claims.  This Section 9 will not apply to a party’s grossly negligent or willful breach of Section 6 (Confidentiality).

10. Governing Law; Disputes

10.1 Governing Law.  This Agreement will be governed by California law, without regard for any conflict of law provisions.  

10.2 Arbitration Agreement. All disputes in connection with this Agreement will be subject to final and binding arbitration in accordance with the rules and procedures of the American Arbitration Association.  To the extent the expedited rules and procedures are available, they will be used. The arbitration will take place in Santa Clara County in the English language.  Notwithstanding the foregoing, claims for injunctive or other equitable relief may be brought by either party, immediately at any time, in court. If a claim cannot legally be arbitrated (as determined by the arbitrator), or is brought pursuant to the preceding sentence, Clari and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of Santa Clara County, California. 

11. General 

11.1 Entire Agreement. All attachments to this Agreement, SOWs, and Order Forms executed by the parties are hereby incorporated into this 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. 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.

11.2 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.

11.3 Assignment.  Neither party may assign or transfer this Agreement without the other party’s written consent; provided that, either party may, without consent, assign this Agreement to its 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 is void. 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.  

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

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

11.6 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.”

11.7 Force Majeure.  Except for payment obligations, 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) beyond its reasonable control.

11.8 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.

11.9 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. Additional Definitions

12.1 “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.

12.2 “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.

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

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

12.5 “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. 

12.6 “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.

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

12.8 “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.

Exhibit A

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).

Service Commitment

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.  

Definitions

“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.

Credit Request Procedures

To receive a Service Credit, Customer must submit a claim by contacting Clari support via email at support@clari.com 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.

Exclusions

The Service Commitment does not apply to: (a) any Services provided on an evaluation or no-fee basis, (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.

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.