Last updated: November 11, 2024
1. CLIENTBOOK TERMS OF SERVICES/SOFTWARE-AS-A-SERVICE AGREEMENT
This Agreement sets out the general terms and conditions under which Clientbook agrees to provide, and Client agrees to receive and use, the Services. By signing or clicking accept to these terms, or using the Services, Client acknowledges that it has read, understands, and agrees to be bound by the following Terms of this Agreement, and any addendums mentioned in the Terms.
This Agreement includes and hereby incorporates by reference any Sales Agreement executed between you the Client and Clientbook, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with Clientbook concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms.
1.1 Authority. The individual agreeing to this Agreement represents to Client that they have the legal power and authority to bind Client and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized or other authorized representative with all necessary authority to bind that entity to this Agreement.
2. Definitions
2.1 “Account” means a Client Account or Customer Account.
2.2 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such Party, whether through the ownership of voting securities, by contract or otherwise.
2.3 “Agreement” means this Software-as-a-Service (SaaS) Agreement, consisting of the terms and conditions stated herein as well as all Sales Agreements, policies, addenda, exhibits, attachments and amendments (if any).
2.4 “Confidential Information” means all information provided or made available by the Disclosing Party to the Receiving Party in connection with this Agreement that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential, including, but it not limited to, non-public information regarding features, functionality and performance of the Services, the terms of this Agreement, Client's Data, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Services (including but not limited to security audits), financial information and fee structures, business processes, methods and models, and technical Documentation, but does not include any information that the Receiving Party can demonstrate (i) was generally available to the public at the time of disclosure; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without the use of any Confidential Information of the Disclosing Party.
2.5 “Client” means the individual or entity represented by the individual(s) entering into this Agreement with Clientbook and includes Customer’s Affiliates.
2.6 “Client Account” means the account or instance within the Services created on behalf of Client by a representative of Client that has administrative rights on the Client Account to take certain actions and make certain changes on behalf of the Customer.
2.7 “Client Data” means information submitted to or created in the Services by Client or Customer in connection with Client or Customer’s use of the Services. Client Data does not include Usage Data, information about Clientbook’s business contacts within Clients’s organization, information about Account holders Processed for the Purpose of administering or operating such accounts or Clientbook’s marketing activities.
2.8 “Client Parties” means Client and its Affiliates, subsidiaries, officers.
2.9 “Client Settings” means the portion of the Services which Client can access by creating a Client Account and where Client can perform administrative functions, such as adding and deleting Customers.
2.10 “Clientbook” means Clientbook, Inc. a Delaware Corporation.
2.11 “Clientbook Parties” means Clientbook and its Affiliates, subsidiaries, officers, employees and agents.
2.12 “Customer” means an individual accessing the Services through permissions granted in a Client Account.
2.13 “Customer Account” means the account or instance within the Services created by a Customer of Client who completes the registration process by providing their full legal name, a valid email address, and any other information requested.
2.14 “Data Processing Addendum” means Clientbook’s data processing addendum available at: https://www.clientbook.com/data-processing-addendum, which is incorporated by reference into, and forms part of, this Agreement.
2.15 “Disclosing Party” means a Party to this Agreement which may make Confidential Information available to the other Party.
2.16 “Documentation” means the then-current, generally available documentation detailing the functionalities of the Services or describing the Subscription Plans made available by Clientbook; provided, however, that Documentation shall specifically exclude any information provided through a knowledge base created by Clientbook on a Client’s behalf.
2.17 “Equipment” means any equipment and ancillary services needed in order to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
2.18 “Fees” means dollar amounts due and payable to Clientbook by Customer as compensation for Customer’s use of the Services, including Subscription Charges and any other fees.
2.19 “Force Majeure Event” means a condition that is beyond a Party’s reasonable control, including but not limited to natural disasters, civil disturbances, epidemics, pandemics, quarantines, acts of terrorism or war, labor conditions, governmental actions, interruptions or failure of the internet or any utility service, failures in third party hosting services, and denial of service attacks.
2.20 “including” means including, without limitation.
2.21 “Laws” means all applicable local, state, federal, and international laws, rules, and regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act, Canada’s Anti-Spam Legislation (“CASL”), the Australian Consumer Law, the AU Privacy Act 1988 (Cth), and the AU Spam Act 2023 (Cth).
2.22 “Sales Agreement” means the written instrument signed by both Parties to this Agreement which specifies the Fees associated with Customer’s use of the Services as well the Subscription Term.
2.23 “Parties” or “Party” means Client and Clientbook.
2.24 “Privacy Notice” means Clientbook’s policy found at https://www.clientbook.com/privacy-policy.
2.26 “Process” and inflections thereof refer to any operation or set of operations which is performed on Client’s Data or on sets of Client’s Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, and destruction.
2.27 “Pseudonymise” means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable natural person.
2.28 “Receiving Party” means a Party to this Agreement which may receive Confidential Information from the other Party.
2.29 “Representatives” means the employees, Affiliates, consultants, contractors, subcontractors, agents, or advisors of a Party.
2.30 “Services” means the software-as-a-service application and technical support services owned or operated by Clientbook, including mobile applications, Software, websites or other properties. “Services” excludes Third-Party Services.
2.31 “Subscription Charges” means dollar amounts due and payable to Clientbook by Client under this Agreement as compensation for Client’s use of the Services.
2.32 “Subscription Plan” means the packaged Service plan(s) and the functionality and Services associated therewith.
2.33 “Subscription Term” means the time period during which Clientbook shall agree to provide and Customer shall agree to purchase the Services as specified in the Sales Agreement or as agreed to by the Customer.
2.34 “Taxes” means all taxes, levies, duties or similar assessments of any nature, including but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction.
2.35 - “Territory” - Means United States, Canada, and Australia unless otherwise expressly set forth in the Client’s Subscription Documentation.
2.36 “Third-Party Services” including but not limited to cellular data services, internet access, and any other services necessary for the proper functioning of the Services.
2.37 “Usage Data” data and other information relating to Client and Customer’s use of the Services, including, without limitation, information concerning Client's Data and data derived therefrom.
3. USE AND ACCESS TO THE SERVICES
3.1 Accessing the Services. Access to the Services shall be procured via the Sales Agreement entered into by and between Client and Clientbook or by purchasing it on Clientbook’s website. Client must purchase a Subscription Plan prior to using or gaining access or use the Services.
3.2 Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to communicate electronically only with Client’s own current Customers who have consented to the receipt of such communications and are provided with all necessary notices in accordance with applicable Laws. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable Laws, prior to utilizing the Services; (b) obtain all necessary rights, releases, and consents to allow Client Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Clientbook the rights herein; and (c) use the Services to make or send communication only in compliance with all applicable Laws where the Client resides, the terms of this Agreement (including the Acceptable Use Policy) and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client also understands and agrees that the Services are intended primarily to be used for transactional and/or informational communications. If Client uses the Services to make or send any written electronic communication (including but not limited text messages) that includes advertisements, marketing, telemarketing, or promotional messaging, as such are defined in applicable Laws (hereinafter, collectively “Marketing”), Client must, in each instance, clearly designate such message(s) as “Marketing” within the Service prior to sending. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable Laws and the Acceptable Use Policy and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with Laws or the Acceptable Use Policy, and Clientbook expressly disclaims any liability for Client’s non-compliance. Clientbook reserves the right to suspend or terminate Client’s access to the Services or specific feature(s) of the Services if Clientbook believes, in its sole discretion, that Client has violated this Section.
3.3 Clients’ Responsibilities Regarding Customers’ Conduct. Client is responsible for the conduct of it Customers and for ensuring that its Customer’s abide by the terms of this Agreement at all times in connection with their use of the Services. It is Client’s responsibility to (i) give all notices to, and obtain any rights, permissions or consents from Customer’s that are necessary for Client’s lawful use of the Services and the Processing of Client's Data and Usage Data by or on behalf of Clientbook in connection with Client’s use of the Services; and (ii) respond to and resolve any dispute between Client and a Customer related to or based on Client's Data and/or Clientbook’s Processing of that Client's Data in connection with Client’s use of the Services.
3.4 Login Credentials. Client is responsible for all login credentials, including usernames and passwords, and Clientbook shall not be liable for any damages or losses that may occur as a result of Client's failure to maintain the confidentiality of their login credentials. Clientbook reserves the right to refuse registration of or cancel passwords it deems inappropriate. Client is responsible for notifying Clientbook at support@Clientbook.com if it becomes aware of any unauthorized use of or access to its Client’s Account.
3.4 Acceptable Use. In addition to complying with the other terms set forth in this Agreement, Client agrees to use our Services in accordance with all applicable laws, rules, regulations and these Terms at all times. The following is a non-exhaustive list of prohibited uses of the Services. You agree that you will not perform any of the following prohibited uses:Impersonating or attempting to impersonate Clientbook or its employees, representatives, subsidiaries or divisions;Misrepresenting your identity or affiliation with any person or entity;Sending or attempting to send any advertising or promotional material, including but not limited to spam, junk mail, chain mail or any similar material;Engaging in any conduct that restricts or inhibits any person’s use or enjoyment of the Services, or which, as determined in Clientbook’s sole discretion, may harm Clientbook or other Clientbook Clients of our Services or expose Clientbook or other Clients to liability;Using the Services in any manner that could disable, overburden, damage or impair the Services or interfere with another party’s use of the Services;Using any robot, spider or other similar automatic technology, process or means to access or use the Services for any purpose, including monitoring or copying any of the material on this Services;Using any manual process or means to monitor or copy any of the material of the Services or for any other unauthorized purpose;Using any device, software, means or routine that interferes with the proper working of the Services, including but not limited to viruses, trojan horses, worms, logic bombs or other such materials;Attempting to gain unauthorized access to, interfering with, damaging or disrupting any parts of the Services, the server(s) on which the Services is stored, or any server, computer or database connected to the Services;Attempting to attack or attacking the Services via a denial-of-service attack or a distributed denial-of-service attack;Otherwise attempting to interfere with the proper working of the Services;Using the Website in any way that violates any applicable federal, state or local laws, rules or regulations.
3.6. Equipment. Client shall be responsible for obtaining, maintaining and securing any Equipment used to access the Services.
3.7 Support and Maintenance. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Clientbook or by third party providers, or because of other causes beyond Clientbook’s reasonable control, but Clientbook shall use reasonable efforts to provide advance written notice of any scheduled service disruption. Clientbook may access Client Accounts in order to respond to and resolve support requests.
4. Confidentiality
4.1 Protection of Confidential Information.
Except at otherwise expressly permitted in the Terms, the receiving party agrees (i) to protect the confidentiality of Confidential Information using at least the same degree of care and discretion as it uses with its own Confidential Information, but in no event less than a reasonable degree of care; and (ii) not to disclose (except in performance of the services or digital products or as otherwise permitted by the Terms) to any third person any such Confidential Information without the express prior written consent of each party (as the disclosing party). The receiving party may disclose Confidential Information to Representatives on a strict need to know basis and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth herein.
4.2 Compelled Disclosure. The receiving party may disclose Confidential Information of the disclosing party to the extent legally required in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, when permitted by law, provide advance notice to the disclosing party.
4.3 Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
5. DATA PROTECTION, USAGE AND FEEDBACK
5.1 Data Policy. Clientbook shall implement and maintain technical, organizational, and physical measures designed to protect the confidentiality, integrity and availability of Client's Data in Clientbook’s possession, custody or control. The Parties agree to the terms of Clientbook’s Data Processing Addendum which is incorporated into this Agreement.
5.2 Data Processing Addendum. Client understands that through its use of Clientbook’s Services it consents to the collection and use of this information (as set forth in the Privacy Policy). Additionally, to the extent applicable, the parties agree that Clientbook's Data Processing Addendum (“Data Processing Addendum” or “DPA”) (currently available at https://www.clientbook.com/data-processing-addendum), governs in the event Clientbook Processes any Covered Data as Customer's Processor or Service Provider (as those terms are defined in the DPA) in connection with this Agreement.
5.3 Usage Data. Notwithstanding anything to the contrary, Clientbook shall have the right, where permitted by law, to collect, aggregate, and analyze pseudonymise Usage Data. Notwithstanding anything to the contrary herein, Client agrees that Clientbook may use pseudonymised data for any lawful business purpose during or after the Subscription Term including without limitation to develop and improve our Services to create and distribute reports and other materials. Clientbook will not distribute pseudonmyised data in a manner that personally identifies any of the Customers, or that would otherwise violate applicable laws.
5.4 Feedback. By submitting any feedback or suggestions regarding the Services, or sharing such feedback with any Representative of Clientbook, Client grants to Clientbook an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to Client, Customer, or any other Representative of the Client. No rights or licenses are granted except as expressly set forth herein.
5.5 Data Protection Policy. Clientbook maintains a Data Protection Policy designed, in its discretion, to secure Clientbook systems from unauthorized access, use, or disclosure.
5.6 Archiving Service. Clientbook does not provide an archiving service. Clientbook may delete Client’s data 1 (one) business day after the termination of Client’s Agreement. Additionally, Client understands and agrees that following termination, Clientbook may delete all of Client’s Data in Clientbook’s possession.
6. FEES/PURCHASES
6.1 Calculation of Subscription Charges.
Clientbook will provide you with a quote after we determine your needs. This price does not include taxes or other fees that you may be charged. Client may execute a Sales Agreement by purchasing the Services directly via Clientbook’s website or by working directly with a Clientbook Party. Client shall pay Clientbook for the Services in accordance with the terms of the Sales Agreement. Subscription Charges are billed in advance and are nonrefundable unless otherwise stated herein. Unless otherwise agreed upon in writing, the Subscription Charges for a renewal of the Subscription Term or for any additional subscriptions purchased by Client shall be calculated according to the Sales Agreement.
6.2 Payment and Billing. Unless otherwise expressly set forth in this Agreement or a Sales Agreement, all Subscription Charges are due in full upon commencement of the Subscription Term. Unless a substitute payment mechanism has been agreed to by Clientbook. If Client fails to pay its Fees within five (5) days of Clientbook’s notice to Client that payment is delinquent, or if Client does not update payment information upon Clientbook’s request, in addition to Clientbook’s other remedies, Clientbook may suspend access to and use of the Services by Client and Customers. Client agrees to promptly update its Client Account information, including payment information, with any changes that may occur (for example, a change in billing address or credit card expiration date).
6.3 Taxes. Unless otherwise stated in the Sales Agreement, Clientbook’s charges do not include any Taxes. Client is responsible for paying Taxes assessed in connection with Client’s subscription to the Services. Clientbook will invoice Client for such Taxes if Clientbook believes that Clientbook has a legal obligation to do so, and Client agrees to pay such Taxes if so invoiced. Clientbook agrees to exempt Client from any Taxes for which Client provides to Clientbook a tax exemption certificate; provided, however, that no such exemption shall be extended to Client following written notice to Clientbook from a taxing authority of appropriate jurisdiction that Client does not qualify for the claimed exemption.
6.4 Billing Disputes. If Client believes that Clientbook has billed Client incorrectly, Client must contact Clientbook no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Clientbook’s Client support department at support@clientbook.com.
6.5 Upgrades. If Client chooses to upgrade its Subscription Plan during a Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the Subscription Charges that exist between Client and Clientbook during the applicable Subscription Term. The Subscription Term for the plan upgrade shall be coterminous with the then-current Subscription Term. In any subsequent Subscription Term, Client’s Subscription Charges will reflect any such upgrades. Any discount provided to Client is applicable only to the initial Subscription Term detailed in the Sales Agreement and will not be applied to any subsequent Subscription Terms.
6.6 Downgrades. Clientbook will not provide Client refund for any downgrades to its Subscription Plan. If Client desires to downgrade its Subscription Plan for a subsequent Subscription Term, Client must provide Clientbook with thirty (30) days written notice prior to the end of Client’s then-current Subscription Term. No credits or refunds will be issued for usage that is less than the purchased number of subscriptions or for unused time on subscriptions.
6.7 Refunds. Clientbook does not offer refunds on any purchases for Services.
6.8 Third Party Payment Processor. Client will choose the third party payment processor when Client pays the Fee for Services. Client may make purchases using the following third party payment processors: Apple Pay, Google Pay, Stripe, and Fattmerchant, Inc.DBA Stax Payments, Inc. The following payment method(s) are accepted by the third party payment processors: American Express, bank transfer, check, Discover, MasterCard, and Visa. Clientbook is not liable for the collection, use, sharing or security of your billing information by these third party payment processors. Client authorizes Clientbook to to automatically charge Client’s selected payment method for Subscription Charges on or after the starting date of each subsequent Subscription Term unless Client’s subscription to the Services terminates as set forth in Section 6.2 below.
7. TERM AND TERMINATION
7.1 Term. Subject to termination provisions below, Clientbook shall provide the Services to Client for the initial Subscription Term, which shall then be automatically renewed and extended for the same duration as the previous Subscription Term. Either Party may request termination at least thirty (30) days prior to the end of the then-current Subscription Term, and Client may submit such request for termination by notifying Clientbook at support@clientbook.com.
7.2 Termination. Either Clientbook or Client may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within thirty (30) days after written notice to the other Party. Client may terminate its subscription if it ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within sixty (60) days. Upon any termination, Clientbook may immediately deactivate the Client Account provided, however, that in no event shall any such deactivation relieve Client of any obligation to pay Fees accrued or payable to Clientbook or of any liability pertaining to Client’s use of the Services prior to such termination. In no event will Clientbook’s termination for cause relieve Client of its obligation to pay any Fees payable to Clientbook for the period prior to termination. Except for Client’s termination for Clientbook’s uncured material breach of this Agreement, Client must pay any unpaid Subscription Charges and Fees incurred for the remainder of the then-current Subscription Term.
7.3 Data Export. Clientbook will make all Client's Data available to Client for electronic retrieval for thirty (30) days after notice of termination. After such thirty (30) days, Clientbook shall delete Client's Data.
7.4 Suspension and Other Remedial Action. In addition to any other remedies that may be available, Clientbook reserves the right to take that remedial action it deems necessary without liability to Clientbook, including the immediate suspension or termination of a Client Account, upon notice to Client should Client or Customer if in Clientbook’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. Clientbook will use commercially reasonable efforts to provide Client with advance notice of terminations and suspensions when practicable, but if Clientbook determines that the actions of a Client endangers the operation of the Services or pose a threat of imminent harm to others, Clientbook may suspend access to the Services without notice. Clientbook reserves the right to notify Client and/or the administrator associated with the Client Account with respect to a Client’s violation of the terms of this Agreement.
7.5 Subscriptions. WE DO NOT OFFER THE OPTION TO REVOKE YOUR SUBSCRIPTION SHORTLY AFTER MAKING YOUR PURCHASE. WHEN YOU PURCHASE A SUBSCRIPTION YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ACCORDING TO YOUR PAYMENT SCHEDULE. WE WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION BY USING THE PAYMENT METHOD ON FILE UNTIL YOU CANCEL YOUR SUBSCRIPTION. YOU MAY CANCEL THE AUTOMATIC RENEWALS OF YOUR SUBSCRIPTION VIA EMAIL BY CONTACTING US AT SUPPORT@CLIENTBOOK.COM. PLEASE NOTE THAT YOU WILL NO LONGER RECEIVE THE SERVICES PROVIDED BY THE SUBSCRIPTION ON YOUR CANCELLATION EFFECTIVE DATE. YOU MUST PROVIDE US WITH 30 DAYS NOTICE PRIOR TO YOUR AUTOMATIC RENEWAL DATE OF YOUR INTENT TO CANCEL THE AUTOMATIC RENEWALS FOR THE CANCELLATION TO BE EFFECTIVE.
8. Intellectual property Rights
8.1 Clientbook’s Rights. All rights in the Services and Clientbook’s website are the property of Clientbook or third parties. All rights reserved. Unless specified otherwise, Clientbook owns and retains all intellectual property rights in and to (i) the Services (excluding only the Client's Data) and all trademarks, logos and service marks utilized by Clientbook in connection with the delivery of the Services; (ii) all improvements, enhancements or modifications of the Services; and (iii) any Software, applications, inventions or other technology developed in connection with supporting the Services.
8.2 Of Client. As between Client and Clientbook, Client shall own all intellectual property rights in and to the Client's Data. Client grants to Clientbook, to the maximum extend provided by law, on behalf of itself and its Customers a worldwide, non-sublicensable, non-transferrable (except to a permitted assignee of Clientbook), non-exclusive, limited license to access, use, copy, reproduce, Process, adapt, distribute, publish, transmit, export and display the Client's Data as reasonably necessary (i) to provide, maintain and update the Services; (ii) to prevent or address service, security, support and technical issues; and (iii) as expressly permitted by this Agreement or by Client in writing.
8.3 Infringement. If you are aware of a potential infringement of our intellectual property, please contact Clientbook at support@clientbook.com. If you believe in good faith that any aspect of our Services infringes on your intellectual property rights, you or your agent may send us a written notice of such infringement titled “Infringement of Intellectual Property Rights.”
9. Warranty
9.1 Clientbook Warranties. Clientbook warrants that during an applicable Subscription Term, the Services will perform materially in accordance with the Agreement. Clientbook sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Client, for Clientbook to use commercially reasonable efforts to correct the reported non-conformity, or if Clientbook determines such remedy to be impracticable, either party may terminate the Agreement and Client will receive a pro-rata refund of any pre-paid, unused Fees for the terminated portion of the Subscription Term. The warranties herein do not apply if the error was caused by Client misuse or unauthorized modification of (i) the Services or (ii) Third-Party Services.
9.2 Client Warranties. Client warrants that it is entitled to transfer the Client's Data to Clientbook so that Clientbook and its authorized third party service providers may lawfully use, Process, and transfer the Client's Data in accordance with this Agreement on Client’s behalf. Client agrees to comply with all applicable laws in its use of the Services.
9.3 Mutual Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
9.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, VIRUS-FREE OR FREE FROM HARMFUL COMPONENTS; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. CLIENTBOOK DOES NOT WARRANT THAT IT WILL REVIEW THE CLIENT DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CLIENT DATA WITHOUT LOSS OR CORRUPTION. CLIENTBOOK SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD PARTY PLATFORMS, THIRD PARTY MESSAGING APPLICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CLIENTBOOOK.
10. INDEMNIFICATION
10.1 Clientbook’s Indemnification Obligations. Clientbook will defend Client Parties from and against any third party claim alleging that the Client’s use of the Services as contemplated under this Agreement violates the intellectual property rights of such third party and will indemnify the Client Parties for damages awarded against the Client Parties in connection with or as a result of such claim or any amounts paid by Client Parties under a settlement approved by Clientbook, including reasonable fees of attorneys engaged by Clientbook in connection with the defense or settlement of such claim. Notwithstanding the foregoing, Clientbook shall not be required to indemnify Client Parties to the extent the claim against Client Parties arises from (i) Client use of the Services in a manner that violates this Agreement; (ii) modification of the Services by anyone other than Clientbook or its Representatives, unless approved by Clientbook; (iii) the combination, operation or use of the Services with software not provided by Clientbook, unless approved by Clientbook; or (iv) violations of third party rights caused by Client's Data.
10.2 Client’s Indemnification Obligations. Client will defend Clientbook Parties from and against any third party claim, action, suit, proceeding or demand arising from or related to (i) Client’s violation of applicable laws while using the Services; and (ii) any third party claim arising from or related to Client's Data, and will indemnify Clientbook Parties for damages awarded against the Clientbook Parties in connection with or as a result of such claim or any amounts paid by Clientbook Parties under a settlement approved by Client, including reasonable fees of attorneys engaged by Client in connection with the defense or settlement of such claim.
10.3 Potential Infringement. If due to a claim of infringement the Services are held by a court of competent jurisdiction or believed by Clientbook to be infringing, Clientbook may at its option and expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Client a license at Clientbook’s expense to continue using the Services; or (iii) if neither of the foregoing are commercially practicable, terminate this Agreement and Client’s rights hereunder, in which case Clientbook’s sole liability (in addition to its indemnification obligations above) shall be to provide Client with a pro-rated refund of prepaid but unused Subscription Charges applicable to the remaining portion of Client’s current Subscription Term. Sections 11.1 and 11.3 state Clientbook’s sole liability with respect to, and Client Parties’ exclusive remedy against Clientbook for, any infringement claim.
10.4 Indemnification Process. In the event of a potential indemnity obligation, the Party seeking indemnification must (i) provide prompt notice to the indemnifying Party concerning the existence of an indemnifiable claim; (ii) promptly provide the indemnifying Party with all information and assistance reasonably requested; and (iii) cooperate fully with the indemnifying Party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a Party’s right to indemnification and shall affect the indemnifying Party’s obligations under this Agreement only to the extent that the indemnifying Party’s rights are materially prejudiced by such failure or delay. The indemnifying Party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the Party seeking indemnification to admit liability or make any financial payment shall require such Party’s prior written consent, not to be unreasonably withheld or delayed.
11. Limitation of Liability
11.1 Exclusion of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA , BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 Limitation Of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CLIENTBOOK’S AGGREGATE LIABILITY TO CLIENT, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY CLIENT DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CLIENT ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF CLIENTBOOK WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. CLIENTBOOK HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION 11.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES ARISING FROM (1) THE INDEMNIFICATION OBLIGATIONS HEREIN, OR (2) CLIENT’S NON-PAYMENT OF UNDISPUTED FEES DUE AND PAYABLE.
11.3 Limitation of Liability in the Aggregate. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CLIENT AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.
11.4 Jurisdiction-specific Exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to Client. IN THESE JURISDICTIONS, CLIENTBOOKS’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11.5 The provisions of this Section 10 allocate the risk between the Parties under this Agreement and the Parties have relied on these limitations in determining whether to enter into this Agreement.
12. USE OF THIRD PARTY SERVICES
Client acknowledges and agrees that in order to access and utilize Clientbook’s Services, the Client is required to obtain and maintain, at their own expense, certain Third-Party Services. Clientbook shall not be responsible for any failure or disruption of the Services due to the Client inability to obtain or maintain such Third-Party Services. Client understands that their ability to use the Services may be limited or impaired in the absence of such Third-Party Services.
Client’s use of such Third-Party Services, and any exchange of Client's Data between Client and the provider of such Third Party Service is solely between Client and the Third Party Service provider. Client is solely responsible for reviewing and complying with such Third-Party Service provider’s terms of use, practices and policies. To the extent Client authorizes the access, transmission or Processing of Client's Data through a Third-Party Service, Clientbook shall not be responsible for any disclosure, modification, deletion or other Processing of such Client's Data by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
13. MISCELLANEOUS
13.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Utah without regard to its conflict of laws provisions, and Clientbook’s, Client’s consent to the personal jurisdiction and venue of the state or federal courts located in Utah County, Utah. The application of the United Nations Convention on Contracts for the International Sale of Goods, The Uniform Commercial Code, or Incoterms are expressly excluded.
13.1.1 Australia Clients. If you are a Clientbook Client located in Australia, this Agreement is governed by the laws of Victoria, Australia. To the extent permitted by law, the courts of Victoria, Australia, will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement.
13.2 Arbitration. Any dispute arising out of or in any way relating to this Agreement shall be resolved according to Utah law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be Utah County, Utah unless otherwise agreed upon by the Parties or you are located in Australia, in which case mediation will occur in Melbourne, Victoria, Australia. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the Parties shall be deemed to have not agreed to arbitrate disputes. Client may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to Clientbook within thirty (30) days of the Effective Date of this Agreement between Client and Clientbook. Written notice should be sent to the address shown below. If Client opts out of arbitration, Clientbook will also not be bound to arbitrate. Notwithstanding the foregoing, either Party shall be entitled to seek injunctive relief as set forth in the Confidentiality section above to stop unauthorized use of any Confidential Information or the Services or infringement of a Party’s intellectual property rights. Disputes, claims, or controversies concerning either Party’s intellectual property rights or claims of piracy or unauthorized use of the Services shall not be subject to arbitration. The Parties further agree that the prevailing Party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
13.3 Legal Notices. Clientbook may provide general notices related to the Services that are applicable to Client via email or notification within the Services and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Legal notices (including all legal notices from Client) must be sent via email, first class mail, airmail, or overnight courier to the address of the Client provided via the Sales Agreement. Legal notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Legal notices to Clientbook shall be sent to:
Clientbook, Inc.Attn: Legal Department3300 N Ashton Blvd.Suite 175Lehi, UT 84043
If Email: legal@clientbook.com
13.4 Publicity; Use of Client’s Marks. Clientbook shall have the right to use Client’s name and logo in a factual manner for marketing or promotional purposes on Clientbook’s website and in other communication with existing or potential Clientbook Clients. The Parties may work together to issue at least one mutually agreed upon press release upon Client’s launch of the Services, and Client otherwise agrees to reasonably cooperate with Clientbook to serve as a reference upon request.
13.5 Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
13.6 Assignment. Neither this Agreement nor any of the rights or licenses granted hereunder may be transferred or assigned by either Party without the other Party’s express prior written consent (not to be unreasonably withheld or delayed); provided, however, that either Party may assign this Agreement and all Sales Agreements related to Client’s use of the Services upon written notice (if by Client via email to legal@clientbook.com) without the other Party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that should Client assign this Agreement to any competitor of Clientbook, then Clientbook shall have the right to terminate this Agreement and Client’s use of the Services upon notice. Any other attempt to transfer or assign this Agreement or a Client Account will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
13.7 Force Majeure. Neither Party shall be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a Force Majeure Event. The Party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the Party experiencing such Force Majeure Event shall promptly notify the other Party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event.
13.8 Relationship of the Parties. The Parties are and shall be independent contractors with respect to all Services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and Client does not have any authority of any kind to bind Clientbook in any respect whatsoever. There are no third party beneficiaries to this Agreement. Without limiting this section, Client’s Customers are not third party beneficiaries to Client’s rights under this Agreement.
13.9 Use by Affiliates and Extension of Rights. Client may extend its rights, benefits and protections provided herein to its Affiliates provided that Client remains responsible for and liable for such Affiliate’s use of the Services and compliance with this Agreement.
13.13 Entire Agreement. This Agreement, including all attachments, policies, exhibits, addendums, and any Sales Agreement(s) related hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Sales Agreement, the Sales Agreement shall prevail. No terms or conditions stated in any Client purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.
13.14 Updating this Agreement. Clientbook reserves the right to update or modify this Agreement from time to time as its business evolves by posting an updated version of this Agreement on its website. If, in Clientbook’s sole discretion, it believes that the modifications being made are material, Clientbook will notify Client prior to the change taking effect. By continuing to utilize the Services after the effective date of any update to this Agreement, Client will be deemed to have accepted such update.
