Terms of Service

This Agreement is made by and between ClearDash, Inc., ("ClearDash") and Customer as defined below.

1. Definitions
1.1 Agreement — means the terms and conditions set forth in this Service Subscription Agreement and the applicable Order Form(s).
1.2 Billing Period — the period specified by Customer in an Order Form for the recurring Subscription Fee
1.3 Customer — means the corporate entity specified in an Order Form.
1.4 Customization Services — means optional services that are selected by the Customer in an Order Form, which may include template customization for the Service login page and the Service public ticket submission page to match the Customer’s existing website look and feel.
1.5 Initial Term — means the initial period of use of the Service specified by Customer in an Order Form.
1.6 One-Time Set-up Fee — means the fee specified in an Order Form for the Set-up Services defined below.
1.7 Order Form — means the ClearDash ordering document that identifies the specific Service subscribed to by Customer and the number of designated Users authorized to use the Service.
1.8 Service — means the ClearDash Software which is a hosted,internet—based back—office management tool to assist professional consultants in their day—to—day operations with time management, billing, and record—keeping that may be reasonably modified by ClearDash from time to time without notice.
1.9 Set-Up Services — means the following items will be performed by ClearDash prior to using the Service: (i) assign unique database for Customer; (ii) assign unique URL; (iii) assign unique website; and (iv) send “getting started” email to Customer.
1.10 Subscription Fee — means the recurring fee for the Service specified in an Order Form.
1.11 User — means any employee, officer, or consultant/contractor of
Customer who has authorized access to the Service.

2. Ownership
2.1 ClearDash Property — ClearDash owns all rights, title, and interest in and to the following property (the “ClearDash Property”):  (i) all software and other technology made available by ClearDash in connection with the Service; (ii) all ideas, know—how, and techniques that may be developed or discovered by ClearDash under the Agreement; and (iii) all intellectual property rights in and to the above property. 
2.2 Customer’s Use of ClearDash Property — Except as otherwise provided herein or in a separate license agreement governing any ClearDash Property:  (a) the use rights set forth in the Agreement are the entirety of Customer’s rights in connection with any ClearDash Property; and (b) Customer shall not use, reproduce, distribute, sublicense, broadcast, or commercially exploit any ClearDash Property.

3. Use and Use Restrictions
3.1 Customer’s Use of Service — Customer agrees to use the Service solely for Customer’s internal operation of Customer’s business in connection with ClearDash’s intended use of the Service in accordance with the documentation and policies for the Service provided by ClearDash to Customer from time to time. 
3.2 Customer’s Use Restrictions of Service — Customer will not provide access to any portion of the Service to any person or entity other than the number of User(s) identified in an Order Form as expressly permitted by the Agreement.  Notwithstanding the foregoing, Customer may provide unlimited access to Customer’s clients and agents at no additional charge provided that Customer’s clients and agents adhere to the terms of the Agreement. Except as expressly permitted in the Agreement, Customer may not: (i) copy the Service or elements thereof; (ii) alter, modify, or adapt the Service; or (iii) make the Service available for any use by loan, rental, sublicense, service bureau, or similar arrangement.

4. Access
4.1 Customer’s Access to Service — ClearDash shall make the Service available to Customer once completion of the Set-up Services occurs.  Customer shall be responsible for the selection and use of telecommunications, internet access, and any other systems and services required to access the Service and any charges associated therewith.

5. Customer Data
5.1 ClearDash’s Right to Use — By performing the Service, ClearDash may maintain, store, and/or transmit information pertaining to Users and Customer (“Customer Data”).  Customer hereby authorizes ClearDash to use Customer Data solely for the purpose of performing the Service.  Customer warrants and covenants that it has the right to authorize ClearDash to use the Customer Data in accordance with the Agreement throughout the term of the Agreement.
5.2 Retention Obligations — Promptly following termination of the Agreement, ClearDash will provide Customer with an archive file of Customer Data in an electronic form.

6.  Fees
6.1 Pricing — Customer hereby agrees to pay ClearDash for the Service as mutually agreed to in an Order Form and in accordance with the terms set forth in the Agreement. 
6.2 Right of Reimbursement — Except as otherwise provided in the Agreement, Customer will not be entitled to a refund or reimbursement of any fees paid to ClearDash.
6.3 Fee Changes — At any time after the Initial Term of the Agreement as specified in an Order Form, ClearDash may change the fees specified in the Agreement effective as of the beginning of Customer’s next Billing Period provided that ClearDash provides Customer with at least thirty (30) days written notice before the effective date of the change. 
6.4 Suspension of Services — ClearDash may suspend the Service if, at any time, Customer is delinquent in the payment of any fees hereunder (or is otherwise in breach of the Agreement) and/or require Customer to either prepay for continued use of the Service or use an alternative payment method acceptable to ClearDash. 
6.5 Late Payments — Delinquent payments hereunder will accrue interest at the rate of one and one half percent per month or the highest rate allowed by applicable law, whichever is lower.
6.6 One-Time Set-up Fee — Customer will pay the One-Time Set-up Fee on Customer’s first Billing Period specified in an Order Form for the Set-up Services provided by ClearDash. 
6.7 Subscription Fee — During the term of the Agreement, Customer will pay ClearDash a recurring Subscription Fee for the Service as specified in an Order Form.  The recurring Subscription Fee will begin on the billing date specified in an Order Form.  Thereafter, the Subscription Fee will be due in advance of using the Service at the beginning of Customer’s Billing Period for the remainder of the term as specified in an Order Form.
6.8 Customization Fees — Customer will pay ClearDash for any Customization Services requested by Customer as specified in an Order Form.  All fees for Customization Services will be due upon completion of the Customization Services. 

7.  Payment Methods
7.1 Credit Card Payments — Customer will pay all fees to ClearDash hereunder under by Credit Card as specified in an Order Form unless otherwise agreed to in an Order Form.  In advance of each Billing Period, all Subscription Fees for the next Billing Period owing to ClearDash will be automatically charged on Customer’s credit card that is specified in an Order Form.

8.  Taxes 
8.1 Customer’s Tax Obligations — In addition to the fees described in the Agreement, Customer shall pay for all taxes and assessments due in connection with the use of the Service, including but not limited to, any federal, state, and local taxes (excluding ClearDash’s income taxes or related taxes pertaining to its authority to do business within a given jurisdiction).

9. Limited Warranty
9.1  Service Warranty — ClearDash warrants that the Service will be performed in a professional manner consistent with the quality of ClearDash’s performance of services and in accordance with generally accepted industry standards.  The sole and exclusive remedy for breach of the foregoing warranty shall be ClearDash’s reasonable efforts to correct any errors within a reasonable period of time given the circumstances.
9.3 Limitation of Liability — NEITHER PARTY HERETO NOR ITS AGENTS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, ACCESS TO SERVICE, PROFIT, BUSINESS, REVENUE, OR GOODWILL, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THE AGREEMENT OR THE SERVICE, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  However, the above limitations shall not apply to any indemnification, confidentiality, or payment obligations set forth in the Agreement or actual damages incurred by a party hereto as a direct result of any criminal or fraudulent acts of the other party or its agents.  In no event will either party’s liability exceed the amount of fees actually paid to ClearDash by Customer in the twelve (12) month period preceding the time that the claim arose.  The parties agree that the fees set forth in the Agreement reflect the limitation on warranties and liability, and the allocation of risk, under the Agreement.

10. Confidentiality.
10.1 Each party acknowledges that, in the course of the performance of this Agreement, it may have access to information of a confidential nature provided by the disclosing party to the receiving party, which shall include the Customer Data (as Customer Confidential Information) and ClearDash Property, ClearDash pricing, and ClearDash product information (as ClearDash Confidential Information) (collectively “Confidential Information”).  Neither party shall use, or otherwise disclose to any third party, the other party’s Confidential Information without the prior written consent of the disclosing party; provided, however, that ClearDash may use and disclose Customer Confidential Information as necessary in order to perform the Service hereunder.  Nothing in this Agreement shall prohibit or limit either party’s use of information which is now, or hereafter becomes, information which (a) through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure thereof; (iii) is hereafter furnished to the receiving party by a third party without violating any restriction as to use or disclosure thereof; (iv) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (v) is required by law or court order to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with prompt written notice and an opportunity to contest the disclosure or seek an appropriate protective order.  Except as otherwise set forth in Section 5.2, upon the disclosing party’s request, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession

11. Indemnity
11.1 Indemnity by ClearDash — ClearDash will defend, hold harmless, and indemnify Customer against all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Customer that arise out of any claim asserted by a third party (except for claims for which ClearDash is entitled to indemnification under Section 11) to the extent alleging that the Service, as provided by ClearDash and used in accordance with the terms of the Agreement, infringes a United States patent, copyright, trade secret, or other proprietary right subject to the following conditions: (i) Customer promptly notifies ClearDash in writing of any notice of such claim; and (ii) ClearDash, at its option, will have sole control of such defense and all negotiations for any settlement or compromise, provided that Customer shall be entitled to participate in its own defense at Customer's expense; and (iii) should the Service become, or in ClearDash's opinion be likely to become, the subject of any such claim, Customer will permit ClearDash, at ClearDash’s option and expense, to procure for Customer the right to continue using the Service or modify the Service so that it becomes non—infringing, or to refund or credit Customer the pro—rata portion of total fees paid representing the unused portion of the subscription and terminate this Agreement.  Notwithstanding the above, ClearDash shall have no liability for any claim which: (i) pertains to any ClearDash Property that has been altered or modified without ClearDash’s prior written approval; (ii) is based on use of the Service in conjunction with any item not provided by ClearDash, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by ClearDash; or (iii) identifies any third—party software, hardware, or service as forming the basis of such infringement.
11.2 Indemnification by Customer — Customer shall, at its expense, defend, indemnify, and hold harmless and indemnify ClearDash and its employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party: (i) to the extent alleging that the Customer Data, as provided by Customer and used in accordance with the terms of this Agreement, infringes upon any United States patent, copyright, trademark, trade secret, or other proprietary right of such third party, subject to the terms of this Agreement; or (ii) alleging injury to any person, or damage to or loss of any property, to the extent resulting from the failure of Customer to comply with its obligations under this Agreement or from the acts or omissions of Customer or its employees, agents, successors or assigns, whether negligent or otherwise; and (ii) by or on behalf of any employee or agent of Customer which relates to the subject matter of the Agreement. 

12. Termination
12.1 Term and Termination — The Initial Term of the Agreement is specified in an Order Form.  After the Initial Term, the Agreement will automatically renew for one (1) year terms unless either party provides written notice of termination to the other party prior to at least thirty (30) days before the desired effective date of termination.
12.2 Termination for Convenience — The Customer may terminate the Agreement within thirty (30) days of the Effective Date of the Agreement by delivering written notice of termination to ClearDash.  The notice of termination shall be effective upon ClearDash’s receipt of the notice.  
12.2 Termination for Breach — Upon any nonpayment of sums due or material breach hereunder by any party (the “breaching party”), if the other party (“non—breaching party”) gives written notice of such breach to the breaching party and the same is not cured within thirty (30) days after delivery of such notice, then, in addition to any other remedy available hereunder, the non—breaching party may terminate the Agreement by delivery of a written notice of termination at any time thereafter before such breach has been cured.
12.3 Duties Upon Termination — Upon termination of the Agreement:  (i) Customer shall immediately pay ClearDash for all unpaid fees accrued hereunder through the effective date of termination; and (ii) ClearDash may invalidate the passwords and otherwise deny further access to the Service.  Termination of the Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination, and the applicable provisions of the Agreement shall continue to apply to such claim until it is resolved.  The terms of Sections 2, 5.2, 9.2, 9.3, 10, 12, and 13 of this Agreement shall survive the termination of the Agreement. 

13. General
13.1 Neither party shall assign the Agreement without the other's written consent, such consent not to be unreasonably withheld, except that either party may assign the Agreement to any entity which directly or indirectly controls, is controlled by, or is under common control with such assigning party, or to a successor to all or substantially all of its business, assets, and obligations, without such consent, provided, that the assignee provides prompt written notice of such assignment to the other party, the assignee agrees to be bound by the terms and conditions of the Agreement, and the assignee is capable of fully performing the obligations of the assignor under the Agreement.
13.2 The Agreement, together with the Order Form(s) thereto, contains the entire agreement and understanding between ClearDash and Customer with respect to the subject matter thereof and supersedes all preceding agreements and proposals, whether oral, written, or otherwise, and shall prevail over any terms and conditions appearing on Customer's purchase orders to which notice of objection is hereby given.  Execution and delivery of the Agreement by electronic transmission shall be binding for all purposes.
13.3 The Agreement and all of its provisions may not be amended or waived unless mutually agreed upon in writing by the parties hereto.
13.4 Neither ClearDash, its third party suppliers, nor Customer shall be responsible for delays or performance failures caused from acts beyond their reasonable control.  
13.5 In the event Customer’s clients or agents do not adhere to the terms of the Agreement, Customer shall be and remain liable for their clients or agents that they provided access to use the Service.  Customer’s clients or agents shall be severally liable for all of their respective obligations under the Agreement.
13.6 Except as otherwise specified herein, all notices hereunder by either party shall be given by personal delivery (including reputable courier service), or by certified mail return receipt requested, postage prepaid, and addressed as set forth in an Order Form.  Such notices shall be deemed to have been given and delivered upon receipt or attempted delivery (if receipt is refused), as the case may be.  Notices also may be sent by electronic transmission, which shall be deemed received when transmitted. 
13.7 The Agreement shall be governed by, subject to, and interpreted in accordance with Washington law, without regard to conflict of laws principles.  Any dispute arising under the Agreement shall be brought in a court of competent jurisdiction located in the state of Washington and the parties hereby consent to the jurisdiction of such court for such purposes.
13.8 Terms and conditions of the Agreement are severable. If any provision is deemed illegal or unenforceable, all other provisions shall remain in effect.
13.9 The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.