This Enterprise SaaS Agreement (the “Agreement”) establishes the terms for the provision and purchase of an Enterprise SaaS Service (the “Service”). Entering into this Agreement does not, in itself, obligate the parties to provide or purchase the Service, but its terms will be applied to the ordering documents that establish such an obligation (each, an “Order”).
The Parties. This Agreement is by and between the corporate entities stated on an Order. By executing an Order, each signatory represents that they have the authority to execute the Order on behalf of the stated entity.
Provider Affiliate Defined. A “Provider Affiliate” is defined as an entity that controls, that is controlled by, or that is under common control with the Provider.
Provider Affiliates Obligations and Rights. Provider Affiliates may perform the obligations and exercise the rights of the Provider under this Agreement. The Provider will be liable for the actions of its Affiliates in connection with this Agreement, and the Customer will bring any claims related to this Agreement against Provider alone.
Customer Affiliate Defined. A “Customer Affiliate” is defined as an entity that controls, that is controlled by, or that is under common control with the Customer.
Customer Affiliates Obligations and Rights. Customer Affiliates may utilize the Service under Orders executed by the Customer.
Subcontractor defined. A “Subcontractor” is defined as a third party that (i) provides personnel to the Provider, when such personnel have access to the Customer’s data or (ii) provides the professional services delivered to the Customer as a complement to the Service.
Performance Requirements. The Provider will only use Subcontractors who (i) the Customer has approved in writing; (ii) have passed industry standard quality and security reviews; and (iii) are bound to contracts that are reasonably calculated to ensure performance according to the Provider’s obligations under this Agreement. Notwithstanding the use of Subcontractors, the Provider will remain liable for any failure by a Subcontractor to perform according to the Provider’s obligations under this Agreement.
Assignment by the Provider Prohibited Absent Consent. The Provider may not assign this Agreement or any Order without the Customer’s written consent, and any attempted assignment made without such consent will be void. The Customer will not unreasonably withhold consent to an assignment that is (i) made to an Affiliate or (ii) made to a successor entity in the course of a merger or acquisition. Examples of reasonable grounds for withholding consent are (i) when the successor entity is a direct competitor of the Customer; (ii) when the successor entity and the Customer have litigated a dispute against each other; or (iii) when the Customer has a reasonable belief that the Affiliate or successor entity will be unable to perform its obligations under the Agreement.
Assignment by the Customer Prohibited Absent Consent. The Customer may not assign this Agreement or any ordering document without the Provider’s written consent, and any attempted assignment made without such consent will be void. The Provider hereby provides written consent to an assignment that is (i) made to an Affiliate or (ii) made to a successor entity in the course of a merger or acquisition.
Enterprise SaaS. The Service is offered under a software-as-a-service model. Under this model, the core features and functionality provided by the Service are provided – not as software that is licensed to the customer and then either installed within the Customer’s IT environment (on-premise software model) or installed on the Customer’s behalf on the Provider’s managed servers (an application service provider model) – but rather as a cloud-based site at which the Customer accesses the features and functionality provided by the Service (the “SaaS”).
Documentation. Service documentation is provided as an online resource, available at www.ClimateClub.com (the “Documentation”).
General Performance Standard. For the full term of the Customer’s Order, the Service will perform as described in the Documentation (the “General Performance Standard”).
Process and Remedy for Failure of the General Performance Standard. If the Service fails to meet the General Performance Standard, the Customer may seek a remedy by providing a reasonably detailed notice of the failure, after which the Provider will have 30 days to correct the failure. If the Provider cannot do so, then the Customer may terminate any or all Orders for the Service immediately upon notice and receive a prorated refund for its prepaid but unused fees, measured from the date of the failure notice.
Disclaimer of the UCC and Implied Warranties. The Parties agree that this Agreement is not a contract for the sale of goods, as those terms are defined under the Uniform Commercial Code, and that their intent is for the Uniform Commercial Code to not apply to this Agreement and the course of action it contemplates. THE PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Uptime & Issue Management. The Provider’s obligations regarding uptime and issue management are established in the Service Level Agreement, provided as an exhibit to this Agreement.
Professional Services. The Service is complemented by professional services, such as implementation, customer support, customer success, and consulting services. All professional services will be provided according to industry standards.
Security and Privacy Controls. The Service will be designed and maintained according to the Service Security Standards, provided as an exhibit to this Agreement.
Continuity and Recovery Investments. The Provider will maintain business continuity and disaster recovery plans, infrastructure, and processes that conform to the industry standards for enterprise SaaS providers. The Provider will test its business continuity and disaster recovery plans no less than annually and will provide the Customer with notice indicating (i) the date on which the plans were tested, (ii) a summary of the test results, and (iii) a summary of any actions that the Provider will be taking in response to the test results.
Force Majeure. A party’s failure to perform will be excused for up to 30 days when directly caused by an intervening event of a magnitude or unpredictability that renders performance impractical despite that party’s continuity and recovery investments.
Protection Against Unwanted Code and Licenses. The Service will not expose the Customer to (i) malicious software code, such as code that is designed to secretly penetrate Customer’s IT infrastructure or to create vulnerabilities within that infrastructure that can be exploited for such purpose or (ii) licensing terms that would require the Customer’s technology to be disclosed or distributed to the public (such as “copyleft” open source licensing terms).
Use of the Service by the Customer. The Customer will only access the Service through its Documented access points and will only use the Service for its Documented purpose and subject to the limits established in the Orders (such as limits on Service scope, user counts, duration, or volume).
Future Functionality. The Provider may make future improvements to the Service, which may include creating new features that are outside of the scope of Customer’s Orders or sunsetting features that are within the scope of Customer’s Orders. The Customer will receive, at no additional charge, all future features and functionality that are sold to new customers as an element of the SKU purchased by the Customer. If the Provider sunsets material features within the scope of Customer’s Orders, it will provide any successor features at no additional charge or, if no such successor features are available, then the Customer may terminate the Orders using the termination for breach procedure. Customer Orders are not contingent on the delivery of future features.
Term. This Agreement is effective as of the date on which it is fully executed (the “Effective Date”). This Agreement will terminate naturally 30 days after the last day of the term set on the Customer’s Orders.
Termination for Breach of the Agreement. If a party breaches this Agreement, and if the breach is capable of being cured and is not a breach of the Intellectual Property, Confidentiality, or Use of the Service by the Customer provisions, then the non-breaching party, prior to terminating for breach, will provide notice of breach and intended termination of (i) any one or more ordering documents or (ii) this Agreement and all ordering documents. If the breach is not cured within 30 days of the date of such notice, then the intended termination will become automatically and immediately effective.
Termination for Breach of an Order. If a party breaches an Order (but not this Agreement), then the non-breaching party, prior to terminating for breach, will provide notice of breach and intended termination of the Order. If the breach is not cured within 30 days of the date of such notice, then the intended termination will become automatically and immediately effective.
Refunds Upon Termination. Upon termination, the Provider will issue a prorated refund to the Customer for prepaid but unused fees for a period measured from (i) in the case of termination for breach, the date of the breach notice or (ii) (when explicitly provided for herein) in the case of termination for convenience, the date of termination.
Payments Upon Termination. Upon termination, the Customer will issue a prorated payment for all amounts owed for a period measured up to (i) in the case of termination for breach, the date of the breach notice or (ii) (when explicitly provided for herein) in the case of termination for convenience, the date of termination.
Survival of Terms. If the term of an Order extends beyond the term of the Agreement, then the Agreement will remain in effect for the limited purpose of providing continuity of terms for that Order until the end of that Order’s current term. Rights and obligations established under this Agreement that must survive termination in order to have their customarily intended effect (such as rights and obligations related to confidentiality, indemnification, limitation of liability and damages, and data and intellectual property) will so survive.
Fees and Invoices. The Provider will invoice the Customer for fees as stated on the Order, and the Customer will pay the fees according to those terms. If the Customer reasonably disputes some portion of the fees owed, it will pay all undisputed amounts and provide notice of the grounds for the dispute.
Taxes Collected by the Provider. The Provider’s Orders do not list applicable taxes. Taxes owed by the Customer on the Order will be stated on invoices delivered to the Customer. The Customer will convey such amounts to the Provider, and the Provider will remit taxes paid by the Customer to the taxing authority.
Taxes Collected by the Customer. The Customer’s purchase orders do not list applicable withholding taxes. Withholding taxes owed by the Provider on the order will be stated on payment notices delivered to the Provider, and the Customer will withhold and remit such amounts to the taxing authority.
Customer Data. All data that is either (i) transmitted to the Service by or on behalf of the Customer or (ii) is added to a Customer-facing dataset within the Service through the use of the Service by or on behalf of the Customer (collectively, “Customer Data”) is and will remain the property of the Customer.
Personal Information. All data that meets the definition of Personal Information provided in the Data Processing Agreement will be owned, provided, and processed according to the terms established in that Data Processing Agreement.
Anonymized Data. Customer Data that has been modified so as to be attributable neither to the Customer nor to any personally identified individual (“Anonymized Data”) is and will remain the property of the Customer, but the Provider may retain and continue to use Anonymized Data after the termination of this Agreement.
Usage Data. Data generated by the Service as a record of its use, such as system logs, is and will remain the property of the Provider, and the Provider may retain and continue to use Usage Data after the termination of this Agreement.
The SaaS. The SaaS (including, for example, its algorithms, calculations, organization, look and feel, and the underlying software code) is and will remain the sole property of the Provider, and the Provider is and will remain the sole owner of all intellectual property embodied or practiced by the SaaS. The Customer is hereby granted a non-exclusive, limited license to access the SaaS through its documented access points and to use its documented functionality, for the duration of the term and to the limits of the scope described in an Order.
Reports. Documents generated by the Service and made available for download by the Customer through the Service (each, a “Report”) may be retained and used by the Customer for any purpose, subject to the Customer’s confidentiality commitments. The Provider grants the Customer a non-exclusive, limited, perpetual license to (with regard to copyrights embodied by the Report) copy, prepare derivative works of, display, transmit, perform, and distribute the Report and (with regard to patents practiced through use of the Report) to use the Report, in all instances only as may be necessary for the Customer to utilize the Report.
Feedback. Suggestions for improvements to any element of the Service that are provided by the Customer will be provided without restriction and will not operate to grant the Customer an ownership interest in any intellectual property embodied or practiced by the Service. If a conveyance of intellectual property rights (such as an assignment or license) is required to achieve this result, the Customer will grant such a conveyance.
Reservation of Rights. Each party reserves all intellectual property rights not expressly granted in this Agreement.
Relationship to NDA. If the Parties have previously executed a nondisclosure agreement, then the terms related to confidential information established in this Agreement will supersede that nondisclosure agreement as of the Effective Date.
General Definition of Confidential Information. “Confidential Information” is defined to include all information, regardless of the medium through which it is conveyed, that is provided by one party to the other in relation to this Agreement and that a reasonable industry participant would deem likely to be confidential.
Exclusions from Confidential Information. Confidential Information is defined to exclude information that the receiving party acquired through means other than a disclosure by the disclosing party, unless the receiving party knew or should have known that the availability of such information was due to misappropriation or misuse.
Use and Protection of Confidential Information. A receiving party will use the Confidential Information of the disclosing party only as necessary to perform its obligations and exercise its rights under this Agreement and will use reasonable care to protect such Confidential Information. At the termination of this Agreement, or upon the disclosing party’s request, the receiving party will destroy the disclosing party’s Confidential Information that is then in its possession.
Legally Compelled Disclosure. If the receiving party reasonably anticipates that it will be legally required to disclose Confidential Information, it will use its best efforts: (i) to timely notify the disclosing party; (ii) to limit the disclosure, such as by seeking a protective order in relation to the Confidential Information disclosed.
Trade Secrets. The receiving party’s obligation to maintain the confidentiality of the disclosing party’s trade secrets will survive the termination of this Agreement, enduring until such time as the information no longer satisfies the requirements of a trade secret.
Stipulation Regarding Preliminary Injunctions and Temporary Restraining Orders. The parties stipulate that the unauthorized use or disclosure of Confidential Information would result in immediate and irreparable injury, loss, or damage to the disclosing party.
Insurance. Upon the Customer’s reasonable request, the Provider will deliver to the Customer a copy of its current Certificates of Insurance. And the Provider will maintain insurance that is at least commensurate with the coverage described in such certificates.
Definition of Indemnification. To “Indemnify” is defined to mean (i) to defend against all third-party claims (construed broadly, so as to include, for example, complaints and causes of action both when filed and when threatened) and regulatory actions (construed broadly, so as to include investigations and disciplinary actions by any government entity with the power to investigate or impose a penalty of any kind) and (ii) to pay all amounts (construed broadly, so as to include, for example settlements, judgments, fines, and attorneys fees awarded under all available theories of liability and damages) owed to such third-party claimants or regulators.
Procedure. A party seeking to be Indemnified will provide timely notice to the Indemnifying party, although untimely notice will relieve the Indemnifying party of its obligations only to the extent that the delay has prejudiced its ability to defend the claim. The Indemnifying party will have the right to control the defense, including the right to reach a settlement with the claimant; however, the Indemnified party will have a right to participate through its own counsel at its own expense and the Indemnifying party will not enter into a settlement that requires the Indemnified party to pay any amount or admit to any liability without the written consent of that Indemnified party.
The Customer’s Indemnifiable Claims. The Provider will Indemnify the Customer for:
infringement of a patent or copyright, provided that the infringement arises through the Customer’s licensed use of the Service, either alone or (when the Provider would be liable for indirect or contributory infringement) in combination with other technology or processes
the Provider’s breach of the Data Processing Agreement
The Provider’s Indemnifiable Claims. The Customer will Indemnify the Provider for:
the Customer’s breach of the Data Processing Agreement
Standard Limitations on Types of Liability. Other than for the Exceptions to the Standard Limitation on Types of Liability (immediately below), each party will be liable to the other for direct damages only. As such, the following types of damages will be excluded, regardless of the underlying theory of recovery: indirect damages, consequential damages, special damages, punitive damages, lost profits, lost reputation, and the cost of replacement services.
Exceptions to the Standard Limitation on Types of Liability. The following liabilities will not be subject to the Standard Limitation on Types of Liability:
amounts owed under an obligation to Indemnify
amounts awarded for a breach of confidentiality obligations (other than as applied to a breach of of the Data Processing Agreement) under this Agreement
amounts awarded for a party’s intentional misconduct or reckless conduct
Standard Limitation on Total Amount of Liability. Other than for the Exceptions to the Standard Limitation on Amount of Liability (immediately below), neither party’s total liability to the other (aggregated across all claims and causes of action) will exceed the fees paid or payable by the Customer in the subscription year (or, if fees are assessed on a basis other than a subscription, the calendar year) in which transpired the events on which the claim is based.
Exceptions to the Standard Limitation on Total Amount of Liability. The following liabilities will not be subject to the Standard Limitation on Amount of Liability:
amounts owed under an obligation to Indemnify
amounts awarded for a party’s willful or reckless conduct
Substantive Law. The Agreement will be interpreted according to the substantive law of the jurisdiction in which the Customer is domiciled.
Forum: Disputes will be decided in binding arbitration by a panel of three arbitrators, with the Customer and the Provider each selecting one member of the panel and those two members selecting the third member of the panel. Any state or federal court with jurisdiction may be used to (i) seek preliminary injunctive relief or (ii) enforce a judgment by the arbitrators.
Attorneys Fees and Costs. An authority that decides a dispute between the Customer and the Provider will have discretion to award the prevailing party attorneys fees and costs.
No Waiver. A party’s delay in exercising its rights under this Agreement will not be deemed a waiver of its rights, and a party’s waiver of any right under this Agreement will not be deemed a waiver of any other right.
Complete Agreement. This Agreement, attachments to this Agreement (such as exhibits and addenda), and Orders contain the complete agreement between the Parties in relation to its subject matter, superseding all prior or contemporaneous written or oral contracts. Neither party enters into this agreement based on any representation not stated herein. This agreement may only be amended in a writing that references it and states the Parties’ intent that it be amended through such writing. No terms automatically presented to the Customer or the Provider as part of a vendor onboarding or order processing workflow (such as terms attached to a purchase order or presented by a vendor management platform) will bind the Parties, notwithstanding any action undertaken to proceed through such workflow (such as accepting a purchase order or clicking a checkbox to accept terms).
Severability. If any part of this Agreement (including entire provisions or any part thereof) is determined to be unenforceable (for any reason) but the remainder of the Agreement contains lawful distinct objects, then the unlawful part of the Agreement will be severed and the lawful objects will remain enforceable.
Conflicts Between Documents. The Agreement, attachments to this Agreement (such as exhibits and addenda), and Orders will be interpreted as a single agreement, such that, for example, silence on a topic in any one document will not be interpreted as a conflict with an explicit statement on that same topic in another document. For example, the absence of a limitation of liability provision in a Data Processing Agreement will not be interpreted as an intention to prevent the application of a limitation of liability provision stated in the Agreement to claims arising from a breach of that Data Processing Agreement. If explicit statements in different documents are in conflict with one another, then the order of precedence will favor (i) a document that explicitly notes the conflict and states an intention to control or (ii) if no such note and statement exists, then, an attachment to this Agreement, followed by the main body of this Agreement, followed by an Order.
The Clarasight Service is designed and managed to a 99.9% uptime expectation, measured monthly.
Although the Clarasight Service is designed to deploy many types of updates without downtime, downtime may be required for major updates and emergency maintenance. Clarasight will provide no fewer than 30 days advance notice of major updates and will use best efforts to provide prior notice of emergency maintenance. Clarasight will also take all commercially reasonable efforts to schedule such efforts to minimize their impact on Customer. The uptime calculation will allow for up to 6 hours of such downtime annually.
Despite Clarasight’s adherence to industry standards for infrastructure resiliency, events beyond Clarasight’s reasonable control – such as widespread failures of core internet infrastructure – may disrupt the Clarasight Service. The uptime calculation will allow for a reasonable amount of downtime for such events.
If the Clarasight Service fails to achieve the monthly uptime expectation for 3 consecutive months or for any 4 months within a subscription year, the Customer may terminate the Agreement upon written notice delivered at any point within 3 months after the last day of the last month of uptime failure. Upon such termination, Customer will receive a refund of prepaid subscription fees, prorated to the date of termination.
Clarasight’s technical support function is designed and managed to the following issue response and resolution times:
This Security Standards document describes the technical, administrative, and physical safeguards taken by Clarasight to safeguard Customer Data.
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