THIS SOFTWARE SERVICES AGREEMENT (the “Agreement”) is entered into and effective as of the day you “AGREE” (the “Effective Date”) by and between ClickFlare and you or the company or entity you represent (“Client” or “You”).
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING AN “AGREE” OR SIMILAR BUTTON OR INSTALLING OR USING THE SOFTWARE SERVICES (DEFINED BELOW). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND CLICKFLARE AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING AN “AGREE” OR SIMILAR BUTTON OR BY USING THE SOFTWARE SERVICES, YOU ACCEPT AND AGREE TO ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU—ANY CHANGES, ADDITIONS, OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY CLICKFLARE AND WILL NOT BE A PART OF THIS AGREEMENT. CLICKFLARE HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE SOFTWARE SERVICES AGREEMENT AND THE SCOPE OR FEATURES OF THE SOFTWARE SERVICES FROM TIME TO TIME. CLICKFLARE MAY MAKE SUCH CHANGES WITH OR WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SOFTWARE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED TO THEM.
Customer acknowledges and agrees to the following terms of service, which together with the terms of the ClickFlare Privacy Policy entered into between Customer and ClickFlare, shall govern Customer’s access and use of the Service (the “Agreement”). Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 10 (Definitions) below. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently procured by the Customer will be subject to this Agreement.
A high-speed Internet connection, such as DSL or cable, is required for proper transmission of the Service. The customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, “browser” software that supports protocols used by ClickFlare, including Secure Socket Layer (SSL) protocol or other protocols accepted by ClickFlare, and to follow logon procedures for services that support such protocols. ClickFlare is not responsible for notifying the Customer of any upgrades, fixes, or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by ClickFlare. ClickFlare assumes no responsibility for the reliability or performance of any connections as described in this Section.
Client will:
Customer shall authorize access to and assign unique passwords and usernames. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of Users’ passwords and usernames. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. ClickFlare will act as though any Electronic Communications it receives under Customer’s passwords, username, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify ClickFlare of any unauthorized access or use of the Service and any loss, theft, or unauthorized use of any User’s password or name and/or Service account numbers.
The Service allows Customer to send Electronic Communications directly to ClickFlare and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including, without limitation, those related to privacy, electronic communications, and anti-spam legislation. The customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall store credit card data only in the designated fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses, and authorizations required for such compliance. Without limiting the foregoing:
You represent and warrant that you or any of your affiliate companies are not a competitor of ClickFlare and you are not using the Service and/or Licensed Program to engage in, or permit others to engage in competition with ClickFlare. You represent and warrant that:
Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to the use of the Service. Customer expressly consents to ClickFlare’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by ClickFlare. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that it is responsible for maintaining and protecting backups of all Customer Data and is responsible for the failure to store, the loss, or the corruption of Customer Data. Customer agrees that ClickFlare and its affiliated entities will collect and track technical and related information about Customer and Customer’s use of the Software Services, including Customer’s Internet protocol address, the hardware and software that Customer utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including, without limitation, to facilitate the provision of updates, support, invoicing, marketing by ClickFlare, its affiliated entities, or its agents, and research and development. In the event that ClickFlare is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, ClickFlare shall take all commercially reasonable steps to provide the Customer with prompt notice of any relevant order or basis for disclosure so as to allow ClickFlare is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted, or stored during the transmission of any data whatsoever across networks not owned and/or operated by ClickFlare, including, but not limited to, the Internet and Customer’s local network.
During the Term, the ClickFlare Service will meet the service level specified in the “Service Level Commitment” listed on Schedule I hereto, which is hereby incorporated by reference. If the applicable Service fails to achieve the service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Service in accordance with the terms set forth in the Service Level Commitment. The respective Service’s system logs and other records shall be used for calculating any service level events.
As part of the Service, ClickFlare will provide the Customer with Help Documentation and other online resources to assist Customer in its use of the Service. Customer acknowledges that ClickFlare has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of ClickFlare may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
ClickFlare shall maintain reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Customer Data. ClickFlare also complies with the latest cybersecurity standards as required by applicable law, including those related to data protection and privacy, ensuring regular updates and audits to maintain compliance.
For purposes of this Agreement, “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects
As between ClickFlare and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. It is also noted that ClickFlare has the authority to use Customer’s Data in the aggregate and for internal purposes only. Customer acknowledges and agrees that in connection with Service, ClickFlare as part of its standard Service offering makes daily backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with ClickFlare standard business processes, which period shall not be less than one year.
The Software Services are licensed, not sold. Use herein of the word “purchase” in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Customer agrees that all rights, title, and interest in and to all intellectual property rights in the Service are owned exclusively by ClickFlare or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, ClickFlare shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by ClickFlare. ClickFlare service marks, logos and product and service names are marks of ClickFlare, respectively (the “ClickFlare Marks”). Customer agrees not to display or use the ClickFlare Marks in any manner without ClickFlare’s express prior written permission. The trademarks, logos, and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
ClickFlare warrants that
ClickFlare warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer.
EXCEPT AS STATED IN SECTION 3 ABOVE, CLICKFLARE DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CLICKFLARE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.7, 3.1, AND 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
CUSTOMER AGREES THAT THE CONSIDERATION WHICH CLICKFLARE IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY CLICKFLARE OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 5. Except with regard to amounts due under this Agreement, and a party’s breach of Section 2.10 (Confidential Information), the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 2.10 (Confidential Information) of this Terms of Service, such maximum liability of either party shall be an amount equal to one (1) times the equivalent of 12 months of subscription fees applicable at the time of the event. Notwithstanding the previous sentence, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and that, were ClickFlare to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
Excluded from the above indemnification obligations are Claims to the extent arising from:
ClickFlare shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any Claims that arise out of or result directly from ClickFlare’s gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims. When ClickFlare is at fault but such fault does not rise to the level of gross negligence or willful misconduct, ClickFlare shall, at its own expense and subject to the limitations set forth in this Section 6 and the amount of liability set forth in Section 5 applicable in the event of a breach of Section 2.10, defend Customer from and against any Claims, and shall hold Customer harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to ClickFlare’s breach of Section 2.10 (Confidential Information) of this Terms of Service. Provided that ClickFlare complies with this Section 6.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.
Customer shall, at its own expense and subject to the limitations set forth in this Section 6, defend ClickFlare from and against any and all Claims
In the event of a potential indemnity obligation under this Section 6, the indemnified party shall:
ClickFlare reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service for any accounts
Customer agrees that ClickFlare may, with reasonably electronic mail or contemporaneous telephonic notice to Customer, suspend access to the Service if ClickFlare reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material, and ongoing harm to ClickFlare or others. In the extraordinary event that ClickFlare suspends Customer’s access to the Service, ClickFlare will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. Customer further agrees that ClickFlare shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section 7.2.
Either party may immediately terminate this Agreement and all Orders issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then ClickFlare shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of ClickFlare’s breach of this Agreement, then Customer shall not be entitled to a monetary refund but shall have access to the software until the end of the term.
Customer agrees that following termination of Customer’s account and/or use of the Service, ClickFlare may immediately deactivate Customer’s account and that following a reasonable period of not less than 30 days shall be entitled to delete Customer’s account from ClickFlare’s “live” site, provided that Customer has paid in full all good faith undisputed amounts owed to ClickFlare. Customer further agrees that ClickFlare shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that ClickFlare is in compliance with the terms of this Section 7.4.
ClickFlare may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. ClickFlare reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. ClickFlare shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 8.1.
If ClickFlare makes a material change to any applicable URL “Terms Of Use”, then ClickFlare will notify Customer by either sending an email to the account email address or posting a notice in the Administrator’s instance of Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify ClickFlare via [email protected] within thirty days after receiving notice of the change. If Customer notifies ClickFlare as required, then Customer will remain governed by the URL “Terms Of Use” in effect immediately prior to the change until the end of the then-current term for the affected Service. If the affected Service is renewed, it will be renewed under ClickFlare’s then current URL Terms “Of Use”. Current URL “Terms of Use” are available at http://ClickFlare/terms-of-use.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents ClickFlare from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers. The client understands and acknowledges that ClickFlare is free to use some or all of the data, information, techniques, methodologies, forms, layouts, or results of any of the products or services provided by ClickFlare hereunder in providing products or services to other customers and nothing in this Agreement shall be construed to limit ClickFlare’s right to do so.
If the Client uses any third-party service with the Software Services (including services that may use any application programming interface (API) provided by ClickFlare), the Client acknowledges that the third-party service may access or use the customer’s information. ClickFlare will not be responsible for any act or omission of the third party, including such third party’s use of the customer’s information. The Client agrees to contact the third-party service provider for any issues arising from the Client’s use of the third-party service.
The Software Services are protected by intellectual property laws and other laws of the United States and international laws and treaties, including intellectual property and export laws. The client agrees that it shall use the Software Services and shall perform all obligations under this Agreement in a manner that complies with all applicable laws applicable to Client and its use of the Software Services and published documentation, including, but not limited to, any and all contractual, statutory, or common law rights and obligations and applicable restrictions concerning intellectual property rights. The client agrees that it shall abide by all applicable export control laws, rules, and regulations applicable to its use of the Software Services.
This Agreement constitutes the final, complete and exclusive agreement among the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether in written, oral, electronic, or other form, relating to the subject matter hereof. Notwithstanding the foregoing, Client acknowledges and agrees that ClickFlare’s published Website “Terms of Use”, as the same may be modified by ClickFlare from time to time in accordance therewith provided that Client has been given notice of any such modifications, specifically apply to the Software Services provided hereunder and are binding upon Client and its Authorized Users. In the case of a conflict between a provision in this Agreement and a provision in such Website “Terms of Use”, such conflicting provision in this Agreement controls. Any terms and conditions appearing on a purchase order or similar document issued by the Client do not apply to the Software Services, do not override or form part of this Agreement, and are void.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver of any breach or provision of this Agreement will not be deemed a waiver of any different or subsequent breach.
The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected, and the parties consent to such court’s substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion.
ClickFlare is committed to ensuring that your privacy is protected and complies with the General Data Protection Regulation (GDPR) where applicable. This section outlines how we handle personal data in accordance with these regulations:
In addition to GDPR, if ClickFlare collects personal data from California residents, compliance with the California Consumer Privacy Act (CCPA) is also required. Under CCPA, users have additional rights, including the right to know what personal data is being collected and the ability to opt-out of the sale of personal data.
For more information about how your data is handled, please view our Privacy Policy via https://clickflare.com/privacy-policy/. If you have questions or concerns you can contact us via [email protected].
ClickFlare commits to providing 99% uptime with respect to the Customer’s Service during each month of the Term, excluding regularly scheduled maintenance times. If in any month this uptime commitment is not met by ClickFlare and Customer was negatively impacted (i.e., attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), ClickFlare shall provide, as the sole and exclusive remedy, a service credit equal to one month’s fee for the use of the Service.
Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. ClickFlare hereby provides notice that every Monday morning 7:00 am – 10:00 am UTC is reserved for routine scheduled maintenance for use as needed. ClickFlare in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify the customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.
In order to receive a credit under this service level commitment, Customer must request it simply by emailing ClickFlare at [email protected], within three days of the end of the applicable month. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to ClickFlare are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to one year from the month for which the credit was issued. ClickFlare shall calculate any service level downtime using ClickFlare’s system logs and other records.
This Service Level Commitment may be amended by ClickFlare in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your ClickFlare account either:
ClickFlare Sandbox, Beta and debugger accounts and other test environments are expressly excluded from this or any other service level commitment.