Software as a Service Agreement
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This Software as a Service Agreement (this “Agreement”) is a binding contract between you (or the entity to which you are binding to this Agreement) (the “Customer”) and Clean Claims, LLC, a Utah limited liability company (the “Company”). This Agreement governs your access to and use of the Services (defined below).
THIS AGREEMENT TAKES EFFECT ON THE DATE THAT YOU CLICK THE CHECKBOX NEXT TO “BY CLICKING THIS BOX, YOU AGREE TO CLEAN CLAIMS’ SOFTWARE AS A SERVICE AGREEMENT, AVAILABLE HERE, AND THE ADDITIONAL SUBSCRIPTION TERMS DESCRIBED BELOW.” AND COMPLETE A PURCHASE FOR THE SERVICES THROUGH THE WEBSITE LINK PROVIDED TO YOU OR AVAILABLE THROUGH THE WEBSITE LOCATED AT WWW.CLEANCLAIMS.COM OR www.cleanclaims.com/serviceagreEments (COLLECTIVELY, THE “WEBSITE”) (SUCH DATE, THE “EFFECTIVE DATE”). BY CLICKING ON THE CHECKBOX NEXT TO “I ACCEPT THE SOFTWARE AS A SERVICE AGREEMENT” YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT (AND ARE AT LEAST 18 YEARS OF AGE), AND, IF ENTERING INTO THIS AGREEMENT FOR AN ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION TO THIS AGREEMENT, AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU (OR THE ENTITY TO WHICH YOU ARE BINDING TO THIS AGREEMENT) ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
TO PURCHASE SERVICES (AS DEFINED BELOW), YOU MUST ACCEPT THE SUBSCRIPTION TERMS BY CLICKING THE CHECKBOX NEXT TO “BY CLICKING THIS BOX, YOU AGREE TO THE SOFTWARE AS A SERVICE AGREEMENT AND THE ADDITIONAL SUBSCRIPTION TERMS (AS DESCRIBED BELOW).” BY CLICKING THE BOX, CUSTOMER (A) EXPRESSLY AGREES TO THE TERMS IN SECTION 2(b) OF THIS AGREEMENT, AND (B) ACKNOWLEDGES AND AGREES THAT A SUBSCRIPTION IS SUBJECT TO THE FOLLOWING TERMS, AS FURTHER DESCRIBED IN SECTION 2(b) BELOW: (I) EACH SUBSCRIPTION TERM WILL CONTINUE FOR A MINIMUM OF 12 MONTHS, WHICH WILL RESULT IN MONTHLY SUBSCRIPTION FEES BEING CHARGED TO CUSTOMER FOR THE DURATION OF SUCH 12-MONTH TERM (E.G., CUSTOMER WILL BE CHARGED A MINIMUM OF 12 MONTHLY RECURRING CHARGES FOR A SUBSCRIPTION), (II) IF CUSTOMER DOES NOT CANCEL THE SUBSCRIPTION AT LEAST 30 DAYS PRIOR TO THE END OF ANY 12-MONTH SUBSCRIPTION TERM, WHICH CUSTOMER MAY CANCEL THROUGH THE WEBSITE OR BY EMAILING SALES@CLEANCLAIMS.COM, THEN CUSTOMER’S SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL 12-MONTH TERM, (III) IF CUSTOMER CANCELS THE SUBSCRIPTION AS SET FORTH IN CLAUSE (II) ABOVE, THEN CUSTOMER WILL NOT BE CHARGED FOLLOWING THE EXISTING 12-MONTH SUBSCRIPTION TERM AND CUSTOMER’S ACCESS TO AND USE OF THE SERVICES WILL TERMINATE AT THE END OF THE EXISTING 12-MONTH SUBSCRIPTION TERM. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT PURCHASE A SUBSCRIPTION.
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1. Services and Support.
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(a) Services. Subject to the terms and conditions of this Agreement (including payment of all amounts due hereunder), Company will provide Customer access to either (i) the Company’s full suite of field documentation software (an “Unlimited Software Subscription”) or (ii) the remote monitoring features of the Company’s field documentation software (a “Remote Monitoring Software Subscription” and collectively with an Unlimited Software Subscription, a “Subscription”), in each case, including the related mobile application, according to Customer’s selection when placing an order on the Website (the “Services”). Services are provided solely for Customer’s internal business operations and solely for use by Authorized Users (defined below) during the Term (defined below). “Authorized Users” means Customer and its employees, consultants, and contractors who are (A) authorized by Customer to access and use the Services pursuant to the terms of this Agreement and (B) who have a valid username and password to access the Services.
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(b) Add-on Services. Customer may elect to add one or more additional products to the Services as set forth on the Website (each such product, an “Add-on Service”) by contacting the Company’s sales team at sales@cleanclaims.com. Customer will be charged for each Add-on Service from the date such Add-on Service is elected through the end of the Subscription Term (defined below). Each Add-on Service will become a part of and deemed a Service hereunder once Customer elects to add such Add-on Service. For each Add-on Service, the monthly fees for Add-on Services will be charged in accordance with Section 2(b) and will remain for the duration of Customer’s then-existing Subscription Term.
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(c) Administrative Accounts. Customer will be assigned one account that has the ability to (i) make purchases of Subscriptions, (ii) cancel or terminate a Subscription (subject to the terms of Section 2(b)), and (iii) perform other actions with respect to the Services made available to such account by the Company from time to time (such account, the “Administrative Account”). Customer may have only one Administrative Account, and Company will not authorize more than one Authorized User to access or use the Administrative Account.
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(d) Availability. Company will use commercially reasonable efforts to make the Services available to Customer 24 hours, 7 days per week, except for (i) planned downtime for maintenance, upgrades, or similar purposes and (ii) unavailability caused by emergency maintenance needs or circumstances outside of Company’s reasonable control. If Customer has ceased making payments for a Subscription, then Authorized Users will not be able to log in to the Services, and such unavailability will not be a breach of this Section 1(d).
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(e) Support. The Company will use commercially reasonable efforts to provide Customer with its standard support for the Services. Customer may contact the Company at support@cleanclaims.com for support requests.
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2. Fees.
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(a) Pricing. The fees for purchasing an Unlimited Software Subscription or any Add-on Services are available at www.cleanclaims.com/pricing. Fees for purchasing a Remote Monitoring Software Subscription are available at www.cleanclaims.com/remotemonitoring. Fees may be updated by the Company from time to time during the Term (defined below).
(b) Subscriptions. Subscription fees (including any amounts for Add-on Services) will be billed monthly in advance starting on the Effective Date (or, if an Add-on Services is elected after the Effective Date, on the date of such election) and on each monthly anniversary of the Effective Date thereafter, until Customer terminates its Subscription as set forth in this Section 2(b). Subscriptions provide Customer with (i) access to use the applicable Services for an unlimited number of Jobs (defined below) per month and (ii) access by an unlimited number of Authorized Users for each Job (in each case of (i) and (ii), subject to the terms and conditions of this Agreement) for a 12-month period (each such 12-month period, a “Subscription Term”). For clarity, the foregoing access is based upon choosing an Unlimited Software Subscription or Remote Monitoring Software Subscription, and access to such Service will be provided accordingly. Customer may elect to cancel an existing Subscription Term for any Services (including any Add-on Services) by notifying Company of such cancellation at least 30 days prior to the end of the then-existing Subscription Term, either through the Website through its Administrative Account or by emailing sales@cleanclaims.com. If Customer does not elect to cancel an existing Subscription Term, then Customer’s Subscription will renew automatically for a subsequent Subscription Term (and Customer’s payment method will be charged the monthly price for such Subscription for the duration of such subsequent Subscription Term). If Customer elects to cancel a Subscription Term as set forth in this Section 2(b), then no further monthly Subscription fees will be billed to Customer after the end of the then-existing Subscription Term and Customer will no longer be able to access or use the Services after the end of the then-existing Subscription Term. “Job” means a restoration project located a single address.
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(c) Taxes. All amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on the Company’s income.
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3. Systems. The Company has and will retain sole control, as between the Company and Customer, over the operation, provision, maintenance, and management of the Services. Customer has and will retain sole control, as between the Company and Customer, over the operation, provision, maintenance, and management of the Customer Systems (defined below), and sole responsibility for all access to and use of the Services by any person or entity by or through any Customer Systems or any other means controlled by Customer or any Authorized User, including any (a) information, instructions, or materials provided by any Customer or Authorized User to the Company, (b) results obtained from any use of the Services, and (c) any conclusions, decisions, or actions based on such use. Customer is solely responsible for maintaining its own internet access as required for use of the Services. “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems, and networks.
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4. Customer Responsibilities.
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(a) Acceptable Use Policy. Customer may not use the Services for unlawful, fraudulent, offensive, unlawful, or obscene activity. Customer will comply with all terms and conditions of this Agreement, all guidelines, standards, and requirements that may be provided to Customer by Company from time to time, and all applicable laws, rules, and regulations.
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(b) Account Use. Customer is responsible and liable for all uses of the Services and Documentation (defined below) resulting from access to or use of the Services by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, or whether by an Authorized User or any other person or entity (including any access to or use of the Services through any Customer Systems). Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User (or any other person or entity through the Administrative Account or any username or password issued to Customer or its Authorized Users) that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and will cause Authorized Users to comply with such provisions. “Documentation” means the Company’s user manuals, handbooks, and guides relating to the Services provided by the Company to Customer either electronically or in hard copy form documentation relating to the Services available at the Website.
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(c) Passwords and Account Credentials. Customer is responsible for keeping all passwords and access credentials associated with the Services confidential. Customer may not sell or transfer any passwords or account credentials associated with the Services to any other person or entity. Customer will promptly notify the Company of any unauthorized access to any passwords or account credentials relating to the Services.
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(d) Third-Party Products. The Services may permit access to Third-Party Products (defined below). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions, which will be made available to Customer through the Website or other reasonable means. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. In no event will the Company be responsible or liable to Customer with respect to any access to or use of Third-Party Products. “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned or controlled by third parties and are incorporated into, linked to, or accessible through the Services.
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5. Restrictions. Customer will not, and will not permit any Authorized Users to, access or use the Services, any component of the Services, or Documentation for any purposes beyond the scope of the access or use rights granted under this Agreement. Customer will not at any time, directly or indirectly, and will not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Services, any component of the Services, or Documentation, in whole or in part, (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available (including by service bureau) the Services or Documentation except as expressly permitted under this Agreement, (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the Services or any component of the Services (except to the extent permitted by applicable law), (d) remove any proprietary notices from the Services or Documentation, or (e) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
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6. Suspension. Notwithstanding anything to the contrary in this Agreement, the Company may suspend, terminate, or deny Customer’s or any Authorized User’s access to all or any portion or all of the Services, if: (a) the Company receives a judicial or governmental demand, order, subpoena, or law enforcement request that expressly or by reasonable implication requires the Company to do so, (b) the Company believes, in its sole discretion, that (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope authorized or for purposes not authorized under this Agreement or (ii) Customer or any Authorized User is, has been, or is likely to be involved in unlawful activities in connection with any of the Services, (c) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (d) the Company’s provision of the Services to Customer or any Authorized User is prohibited by applicable law (collectively, a “Service Suspension”). The Company will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer. In no event will the Company be obligated to resume access to the Services. The Company will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
7. Term and Termination.
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(a) Term. This Agreement is effective as of the Effective Date and will remain in effect for the duration of one or more Subscription Terms, as set forth in Section 2(b) (the “Term”).
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(b) Termination.
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(i) Customer may terminate this Agreement at the end of any Subscription Term as set forth in Section 2(b).
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(ii) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement and fails to cure such breach within 30 days after receiving such notice.
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(iii) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (C) makes or seeks to make a general assignment for the benefit of its creditors, or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
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(c) Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately discontinue all use of the Services and Documentation and cause its Authorized Users to do the same. No expiration or termination of this Agreement will affect Customer’s obligation to pay any amounts due under this Agreement that may have become due before such expiration or termination or entitle Customer to any refund unless expressly stated otherwise under this Agreement.
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(d) Customer Data. Following expiration or termination of this Agreement, the Company will have no obligation to maintain Customer Data (defined below) for more than 30 days. If, within such 30-day period, Customer requests a copy of the Customer Data, the Company will use commercially reasonable efforts to provide Customer with a copy of the Customer Data (in the form maintained by the Company).
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(e) Survival. This Section 7(e), and Sections 5, 7(c), 7(d), 8, 9, 10, 11, 12, 13, and 15 will survive any termination or expiration of this Agreement (if applicable, in accordance with their terms).
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8. Intellectual Property and Data Rights.
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(a) Reservation of Rights. As between the Company and Customer, the Company owns all right, title, and interest in, to, and under (i) the Services and Documentation, all improvements, modifications, and enhancements thereto, and all intellectual property rights in any of the foregoing and (ii) all other intellectual property rights owned or controlled by the Company prior to the Effective Date or invented, developed, or acquired outside the scope of this Agreement ((i) and (ii) collectively, the “Company IP”). Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Customer, by implication, estoppel, or otherwise, any intellectual property rights or licenses, or other interest in, to, or under the Company IP.
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(b) Documentation. Subject to the terms and conditions of this Agreement, the Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation regarding the Services provided to Customer by the Company, solely for Customer’s use of the Services during the Term.
(c) Feedback. If Customer, any Authorized User, or any other Representative (defined below) of Customer provides feedback to the Company or its Representatives or makes any suggestions or recommendations to the Company or its Representatives, in each case related to the Services or the Company’s business, including new features or functionality (“Feedback”), then the Company is free to use such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby grants to the Company, on behalf of itself and its Representatives, a non-exclusive, irrevocable, perpetual, sublicensable, transferable, worldwide, royalty-free, fully paid-up right and license to use or exploit Feedback in any manner.
(d) Customer Data. Customer owns all right, title, and interest in and to the data that it transmits to or processes using the Services (the “Customer Data”). Customer hereby grants to Company: (i) during the Term, a non-exclusive, royalty-free, fully paid-up, worldwide, sublicensable, transferable license to use, copy, display, modify, perform, and otherwise exploit the Customer Data and perform all acts with respect to the Customer Data as may be reasonably necessary for the Company to provide the Services to Customer, and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, sublicensable, transferable license to use, copy, display, modify, perform, and otherwise exploit the Customer Data incorporated within the Aggregated Statistics (defined below) for any and all purposes, including in connection with the provision, improvement, security, and operation of the Services or any other product or service of the Company. Customer represents and warrants that it has all rights in the Customer Data to grant the foregoing license and to use the Customer Data in connection with the Services as contemplated under this Agreement. Customer will not upload or transmit any data to or through the Services that violates any law, infringes, misappropriates, or violates the rights of any third party, or otherwise violates the terms of this Agreement.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, The Company may monitor Customer’s uses of the Services and may collect and compile data and information related to Customer’s use of the Services, which may include Customer Data in aggregated or de-identified form (“Aggregated Statistics”). The Company owns all right, title, and interest in and to the Aggregated Statistics, and Customer acknowledges and agrees that the Company may use the Aggregated Statistics for any purpose. Customer hereby authorizes the Company to use the Customer Data in connection with the improvement, security, and operation of the Services or any other product or service of the Company.
9. Confidential Information.
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(a) Definition. During the Term, the Company and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”).
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(b) Exclusions. Confidential Information does not include information that: (i) is or becomes generally known, without breach of this Agreement by the receiving party, (ii) known to the receiving party prior to such disclosure, as demonstrated by reasonable documentation, (iii) obtained by the receiving party from a third party without a known obligation of confidentiality to the disclosing party, or (iv) independently developed by the receiving party without use of or access to the Confidential Information of the disclosing party. The receiving party will not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s officers, directors, members, managers, employees, agents, or contractors (“Representatives”) who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations under this Agreement and who are bound in writing to protect the Confidential Information in a manner no less stringent than required under this Agreement. The receiving party will use at least the efforts to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of a similar type and nature, but in any event, no less than reasonable efforts. Customer Data will be deemed Confidential Information of the Customer; however, Customer acknowledges and agrees that a security incident or breach compromising any Customer Data will not be deemed a breach of this Section 9(b).
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(c) Permitted Disclosures. Notwithstanding anything to the contrary in the foregoing, the receiving party may disclose Confidential Information to the limited extent required to comply with (i) the order of a court or other governmental body, or (ii) applicable law, provided that the receiving party will provide reasonable advance notice to the disclosing party (to the extent permitted or reasonably possible) so that the disclosing party may seek a protective order. The receiving party will cooperate with the disclosing party, at the disclosing party’s expense, to obtain a protective order or other confidential treatment for such Confidential Information required to be disclosed. If required to disclose the Confidential Information, the disclosing party will disclose the minimum amount of Confidential Information necessary to comply with such order or law (based on the advice of its counsel).
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(d) Survival. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter.
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10. Limited Warranty and Warranty Disclaimer.
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(a) Limited Warranty. The Company warrants that the Services will conform in all material respects to the Documentation. The Company does not make any representations or guarantees regarding uptime or availability of the Services unless specifically agreed in writing by the Company. THE FOREGOING WARRANTY DOES NOT APPLY TO, AND THE COMPANY STRICTLY DISCLAIMS, ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
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(b) Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
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11. Indemnification.
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(a) Customer Indemnification. Customer will indemnify, hold harmless, and, at the Company’s option, defend the Company and its affiliates, and its and their Representatives, from and against any and all losses, costs, expenses, fees, damages, or other liabilities (including reasonable attorneys’ fees) arising from or relating to any claim, suit, action, or proceeding brought by a third party (i) alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any such claim unless the Company consents to such settlement in writing, and further provided that the Company will have the right, at its option, to participate in the defense thereof using counsel of its own choice.
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(b) Company Indemnification. Company will indemnify, defend, and hold harmless Customer and its affiliates and its and their Representatives from and against any and all losses, costs, expenses, fees, damages, or other liabilities (including reasonable attorneys’ fees) arising out of a claim, suit, action, or proceeding brought by a third party alleging that Customer’s use of the Services in accordance with this Agreement infringe the intellectual property rights of such third party. Notwithstanding anything to the contrary in the foregoing, the Company will have no obligation to indemnify the Company to the extent that any infringement or alleged infringement is caused by (i) Customer’s breach of this Agreement, (ii) any modification of the Services not made by the Company or authorized in writing by the Company, (iii) any use of the Services with any other software or services, or (iv) Third-Party Products. THIS SECTION 11(B) SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
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(c) Procedures. The party seeking indemnification under this Agreement will promptly notify the other party upon becoming aware of any claim, suit, action, or proceeding for which it is seeking indemnification. No delay in providing such notice will relieve the indemnifying party of its obligation to indemnify the other party, except to the extent that such delay adversely affects the ability to defend such claim, suit, action, or proceeding.
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12. Limitations of Liability. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (C) LOSS OF GOODWILL OR REPUTATION, (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO THE COMPANY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT THE LIMITATIONS ON DAMAGES UNDER THIS AGREEMENT ARE A SPECIFIC AND MATERIAL INDUCEMENT TO THE COMPANY TO ENTER INTO THIS TRANSACTION.
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13. Governing Law and Jurisdiction. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement (including any claim or cause of action based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), will be governed by, and enforced in accordance with, the internal laws of the State of Utah, including its statutes of limitations, without regard to any borrowing statute or conflict of law rule that would result in the application of the statute of limitations or law of any other jurisdiction. Any dispute based upon, arising out of, or related to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah, in each case located in Salt Lake City, Utah and each party irrevocably submits to the exclusive jurisdiction of such courts for such purposes.
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14. Force Majeure. In no event will either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, flood, fire, earthquake, extreme weather, internet outages, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
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15. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. Any notices to the Company must be sent to sales@cleanclaims.com and will be deemed delivered on the next business day after sent. Customer hereby consents to receiving notices from the Company via email, and notices will be effective upon the Company sending an email to the email address associated with the Administrative Account. The invalidity, illegality, or unenforceability of any provision herein will not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The word “including” will be deemed to be followed by “without limitation” or words of like import, and the word “or” will be non-exclusive. Any failure to act by a party with respect to a breach of this Agreement does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred by Customer for any reason whatsoever without the Company’s prior written consent and any attempted assignment in violation of the foregoing will be void and without effect. The Company expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder, without the consent of Customer. Except as expressly set forth herein, the rights and remedies provided in this Agreement are cumulative and not exclusive, and no termination of this Agreement waives the right of a party with respect to any circumstances occurring prior to such termination. Other than as expressly set forth herein, this Agreement does not confer any rights or remedies on any person or entity other the Customer and the Company. Nothing in this Agreement will be construed as creating any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties.
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