Clear End User License Agreement
This End User License Agreement (“Agreement”) is between Clear Software Company (“Clear”) and you.
By downloading or installing Clear’s software (including the coding and programming needed to operate the software, collectively referred to as “Software”), you agree to be bound by the terms of this Agreement.
If you do not or cannot agree to the terms of this Agreement, do not download or use the software.
- Free Trial. A free trial period (“Free Trial”) shall begin on the date you first download or use the Software (the “Effective Date”), and last for three (3) months. During the Free Trial, you will not incur a royalty fee and shall use the Software in accordance with the provisions of the License Grant Section of this Agreement.
- During the Free Trial, you and Clear will determine the duration of the Contract Period and the royalty rate that you will pay during the Contract Period. The royalty rate will vary, depending on the duration of the Contract Period, and shall be detailed in Appendix A.
- Contract Period. Upon the completion of the Free Trial, you and Clear shall agree to commercial terms as detailed in Appendix A.
- Intellectual Property.
- Ownership. Clear remains the sole owner of all right, title, and interest in the Software, including all intellectual property rights associated with the Software. Clear reserves all rights not granted under these terms.
- License Grant.
- License granted during Free Trial: Subject to the terms of this Agreement, Clear grants to you a non-exclusive, non-transferable, revocable (per the Termination section of this Agreement), royalty free, non-sublicenseable, and world-wide license under copyright rights to download and install the Software for the purpose of running and using the Software on your computer or other electronic device during the Free Trial period.
- License granted during Contract Period: Subject to the terms of this Agreement, Clear grants to you a non-exclusive, non-transferable, revocable (per the Termination section of this Agreement), royalty bearing, non-sublicenseable, and world-wide license under copyright rights to continue to run and use the Software on your computer or other electronic device upon completion of the Free Trial period and throughout the duration of this Agreement, where the royalty fee and Agreement duration shall be specified in Appendix A of this Agreement.
- Limitations on License.
- This Agreement does not grant permission to you use Clear’s trade names, trademarks, service marks, or product names.
- This Agreement does not grant a license to you for any patents related to the Software.
- This Agreement does not grant you permission to participate in misuse of the Software. Examples of misuse include, without limitation, the following:
- Copy, modify, host, stream, sublicense, or resell the Software or its content for any reason;
- Enable or allow other parties to use or access the Software under your account information;
- Access the Software by any means other than through the interface provided or authorized by Clear; or
- Attempt to disable, impair, reverse engineer, or destroy the Software.
- Modifications to License. Clear may modify the royalty fee structure in Appendix A, or other rights granted under this Agreement. In the event that any changes to the royalty fee or rights granted under this Agreement are made, Clear shall provide you with a thirty (30) day notice of all modifications.
- No Reverse Engineering. You shall not, and shall not enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code, decrypt, modify, or create derivative works of the Software or programs related to the Software.
- Representation & Warranties.
- Clear warrants that it has the authority to grant to you the rights granted under this Agreement.
- Except as expressly stated in this Agreement, nothing shall be construed as:
- Conferring any license or other right, by estoppel or otherwise, under any intellectual property right of either you or Clear, except as herein expressly granted; or
- Making any warranty or representation obligating either you or Clear to defend, indemnify, or hold harmless any other third party from any suits, actions, claims or causes of action alleging infringement of, misappropriation of, or violation of any third party’s intellectual property rights; or
- Imposing on either you or Clear an obligation to bring or prosecute actions or suits against third parties for infringement.
- Disclaimers of Warranties.
- You hereby expressly acknowledge that the Software is provided “as is” and that other than as expressly stated in this Agreement, Clear does not:
- Extend any warranties or conditions of any kind, either express or implied, oral or written, including any warranty of merchantability or fitness for a particular purpose, safety, use for an intended or particular purpose, or freedom from defects;
- Make any representations; or
- Warrant or represent that the Software or any product utilizing any aspect of the Software will be free from any claims of infringement of any third party.
- You further expressly acknowledge that you use the Software at your own risk.
- Indemnification. You will indemnify Clear from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your use of the Software, or violation of this Agreement.
- Limitation of Liabilities
- In no event shall Clear be liable for any indirect, punitive, special, incidental, or consequential damages in connection with or arising out of this Agreement, or your use or inability to use the Software (including, without limitation, the loss of profits, loss of data, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any other economic loss), however it arises and on any theory of liability, whether in an action for contract, strict liability, or tort (including negligence) or other theory, whether or not Clear has been advised of the possibility of such damage and notwithstanding the failure of essential purpose of any remedy.
- Some jurisdictions do not allow the limitation of liability of incidental or consequential damages, so this limitation may not apply.
- Clear’s liability to you for all claims arising out of, or related to, any provision of this Agreement shall be limited to fifty U.S. dollars ($50.00). This limitation will apply even if Clear has been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.
- Term. This Agreement shall begin on the Effective Date and be binding until the completion of the Contract Period (“Term”).
- This Agreement and the rights granted under this Agreement can be terminated by either you or Clear.
- Termination by you. You may terminate this Agreement by notifying Clear in writing. You may also terminate this Agreement in the event you refuse to accept modifications made by Clear to the license granted under this Agreement. However, in the event you terminate this Agreement, you shall be responsible for the Buyout Payment detailed in the Buyout Provision of this Agreement.
- Termination by Clear. Clear may automatically terminate this Agreement for the following:
- You fail to comply with any term(s) of this Agreement, and fail to cure such breach within thirty (30) days of becoming aware of such breach;
- You institute patent litigation against Clear, alleging that the Software infringes your patent(s); or
- Clear elects to discontinue the Software and computer programs related to the Software, after providing you with thirty (30) days’ notice of discontinuing the Software.
- Buyout Provision. In the event you terminate this Agreement before the completion of the Term, you shall make a bulk payment (“Buyout Payment”) to Clear.
- Calculation of Buyout Payment. The Buyout Payment shall be calculated by multiplying the monthly average of what you paid during the Term by the number of months detailed in Appendix A.. In other words, if the average amount paid is $1,000 and 3 months is the buyout period detailed in Appendix A,
Buyout payment = $1,000 x 3 (months) = $3,000.
- Payment Terms. You shall pay monthly payments to Clear, either by credit card or bank draft. Your preferred payment method shall be associated with your account, and monthly payments will be automatically charged to the credit card or bank account, in arrears. Payment for each month shall be due by the seventh (7th) day of the following month.
- Survival. Upon termination of this Agreement, your indemnification obligations, Clear’s warranty disclaimers, limitations of liabilities, and the dispute resolution provisions of this Agreement will survive.
- Export Control Laws. The Software and your use of the Software are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Software. You agree to comply with all these laws, restrictions, and regulations.
- Dispute Resolution.
- Both you and Clear express the intention that all disputes in connection with this Agreement shall be settled through friendly negotiations.
- In the event that you and Clear cannot reach a settlement through friendly negotiations, the dispute shall be submitted to mediation in accordance with the World Intellectual Property Organization (WIPO) mediation rules. The place of mediation shall be located in Houston, Texas. The language to be used in the mediation shall be English.
- Any dispute, controversy, or claim arising under, out of, or relating to this Agreement, that cannot be resolved with mediation, shall be referred to and finally determined by arbitration in accordance with the WIPO arbitration rules. The arbitral tribunal shall consist of three arbitrators, one selected by you and one selected by Clear, and the two selected arbitrators shall then select a third arbitrator. The language that shall be used in the arbitral proceedings shall be English. The dispute, controversy or claim shall be decided in accordance with the law of the United States. The arbitration shall take place in Houston, Texas.
- Any award of the arbitral tribunal shall be final and binding. Both you and Clear undertake to comply fully and promptly with any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.
- All notices required under this Agreement shall be deemed effective when made in writing. Notice to Clear shall be made via email to firstname.lastname@example.org. Notice to you shall be made to the email or postal address associated with your account.
- Force Majeure. Neither you nor Clear shall be liable for any delay in the performance of this Agreement for the period that such failure or delay is due to an event of force majeure, such as: war (whether declared or not); revolution or insurrection; strikes in facilities not under the control of either you or Clear; hurricanes, earthquakes and other natural catastrophes; terrorist attacks; acts of a government in its sovereign capacity; or any other event provided such event is without the fault of, and is beyond the reasonable control of, the party invoking force majeure. Both you and Clear agree to notify each other promptly of the occurrence of any such force majeure event. Both you and Clear also agree to carry out this Agreement as promptly as practicable after such cause is terminated.
- Governing Law. This Agreement is governed by the laws of the State of Texas and the intellectual property laws of the United States of America.
- No other rights. This Agreement shall not be construed to grant any rights by implication, estoppel, or otherwise, that are not granted through its express provisions.
- The failure of either you or Clear to enforce any provision of this Agreement shall not be construed as a waiver or limitation of your or Clear’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
- Severability. If any provision of this Agreement is held by a court to be contrary to the law, the remaining provisions of this Agreement shall remain in full force and effect, and shall be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal, or unenforceable provision.
- Entire Agreement provision. The provisions of this Agreement constitute the entire agreement between you and Clear concerning the subject matter hereof.
This Appendix A is incorporated by reference and is made part of the End User License Agreement between you and Clear, as of the date you first download or use the Software.
During the Free Trial, you and Clear shall determine the royalty fee you shall pay Clear each month (“Royalty Fee”).
The Royalty Fee shall be calculated by multiplying a fixed royalty rate (determined by you and Clear) by the volume of trades or invoices submitted.
- No Royalty Fee charged
- 3-month duration
- No charge for installation if terminated at the end of the trial
- Determined Royalty Fee charged
- Duration decided
- Buyout Period Determined
- Installation/Onboarding Fee charged