Privacy Policy Terms Of Service

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Subscription Services Agreement

Last Updated November 9th, 2017.

TERMS OF SERVICE

BACKGROUND INFORMATION

A. Clarabridge™ directly, and through its subsidiaries, including Engagor, Inc. and Engagor NV (collectively, “Engagor”), provides services utilizing proprietary technologies and systems, which are useful for social media monitoring, analyzing and engagement, including the collection and analysis of consumer sentiment derived from a variety of social media and other data sources and reporting and routing such information to representatives within a customer’s organization for social engagement with such consumers or other responsive action (the “CX Social Services”).

B. Clarabridge and the entity identified on a mutually executed Order Form as “Customer” desire to establish a business relationship, whereby Clarabridge will provide the CX Social Services to Customer through access to certain of its proprietary systems.

TERMS OF AGREEMENT

This document, entitled “Subscription Services Agreement – Terms of Service” (the “Terms of Service”) together with its exhibits, the Service Levels attached hereto as Exhibit A and the Product Terms attached hereto as Exhibit B, contain certain terms and conditions of agreement (collectively, the “Agreement”) between Clarabridge, Inc., a Delaware corporation having its principal place of business at 11400 Commerce Park Drive, Suite 500, Reston, Virginia 20191 (“Clarabridge”), and Customer. Each of Clarabridge and Customer may be referenced throughout this Agreement as a “Party.” Capitalized words and phrases used throughout this Agreement, if not otherwise defined on this Cover Page, shall have the meanings set forth or cross-referenced in Glossary of Defined Words and Phrases in Section 13.

This Agreement shall become effective as of the date when authorized representatives of both Parties have executed an Order Form referencing these Terms of Service (the “Effective Date”). If those authorized representatives execute such Order Form on different dates, the Effective Date shall be the latter date, or the date as of which Clarabridge first provides services under this Agreement, whichever first occurs. These Terms of Service shall be interpreted solely in the context of such Order Form and shall not bind either party unless and until an Order Form is executed by the parties, at which time these Terms of Service shall be automatically incorporated by reference into, and made a part of, that Order Form. In no event, however, shall this Agreement be construed as obligating the Company or Customer to enter into any particular Order Form with the other.

1. ORDER FORMS.

Subject to the terms and conditions of this Agreement, Clarabridge agrees to sell and provide (as applicable), and Customer agrees to purchase, the Access Rights for Subscription Services and the Professional Services that are identified in each Order Form. Each Order Form shall be binding upon the Parties only after mutual execution, and each mutually executed Order Form shall be considered an integral part of this Agreement. In the event of any conflict between the provisions of this Agreement and the terms of any Order Form or any Statement of Work, the provisions of this Agreement shall supersede and govern, followed in precedence by the Order Form and then the Statement of Work, unless, in each case, the Order Form or Statement of Work, as the case may be, both (i) expressly states that the Parties mutually intend that the Order Form or Statement of Work should govern in that instance and (ii) expressly identifies the provision(s) of this Agreement to be superseded. No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Customer with or as part of any Order Form or Statement of Work shall be binding upon Clarabridge.

2. USE OF SUBSCRIPTION SERVICES.

2.1 Right to Use Subscription Services.

2.2 Authorized End Users.

Customer is responsible for creating and maintaining user accounts and all use of its Access Rights under its Authorized End User login credentials in compliance with this Agreement, and ensuring that those accounts are protected with strong passwords to prevent unauthorized use. Clarabridge will permit Customer to register the number of unique sets of login credentials (each consisting of a user name and password) set forth on the applicable Order Form for the Subscription Services and, unless otherwise approved in writing by Clarabridge in its sole discretion, Customer will ensure that no more than one Authorized End User will have access to or will use each set of login credentials. Customer represents and warrants that: (a) all required registration information Customer submits is truthful and accurate; and (b) Customer will maintain the accuracy of such information. Customer’s account shall be terminated at the termination or expiration of this Agreement. Customer agrees to immediately notify Clarabridge of any unauthorized use, or suspected unauthorized use of Customer’s account or any other breach of security. Clarabridge will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements.

2.3 Documentation License.

Subject to the terms and conditions of the Agreement, Clarabridge hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license during the Term to reproduce copies of the Documentation and to modify, adapt, translate and create derivate works therefrom solely for use by Customer in connection with the exercise of its Access Rights and solely for its internal business purposes and not, in any event, for external publication or distribution. Customer acknowledges that the Documentation is Clarabridge's Confidential Information, and hereby agrees to accurately reproduce within any copies, modifications, adaptations, translations or derivative works of the Documentation all copyright notices, trademark notices or confidentiality notices contained in the Documentation or in the Documentation from which any modification, adaptation, translation or derivative works were derived.

3. RESERVATION OF RIGHTS AND RESTRICTIONS.

3.1 Proprietary Rights; No Implied Licenses.

Customer acknowledges that, any Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, the Subscription Services and the Documentation, including any developments, inventions, or technology developed by Clarabridge before, during or after the Term and any Subscription Services-related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by Customer to Clarabridge during the Term are, as between the Parties, owned by Clarabridge and not Customer (which statement is not a representation or warranty). All Reports and Content and other data or information that constitute or embody Customer’s Confidential Information are, as between the parties, owned by Customer. There are no licenses granted by implication under this Agreement and Clarabridge reserves all rights that are not expressly granted.

3.2 General Restrictions on Use.

Customer agrees not to act outside the scope of the rights that are expressly granted by Clarabridge in this Agreement. Customer will not (a) make the Services available to anyone other than Customer and its Authorized End Users; (b) sell, resell, license, sublicense, rent, lease or distribute any Services or Reports, or include any Services or Reports or any derivative works thereof in a service bureau or outsourcing offering to any third party; (c) copy, modify, adapt, alter, translate or make derivative works based upon the Subscription Services (other than any copies, modifications or derivative works made solely from the Reports which are created solely for Customer’s internal business purposes); (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services is compiled or interpreted save to the extent that Customer cannot be prohibited from so doing under applicable law, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code; (e) use the Subscription Services to conduct or promote any illegal activities; (f) use the Subscription Services to generate unsolicited email advertisements or spam; (g) use the Subscription Services to stalk, harass or harm another individual; (h) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; or (i) use any portion of the Subscription Services or Website or Clarabridge’s or its affiliate’s tradenames or trademarks in any manner that may give a false or misleading impression, attribution, or statement as to Clarabridge, or as to any third party. Customer agrees to use the Subscription Services only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities.

4. TREATMENT OF CONTENT.

4.1 Selection of Content.

Customer understands that the Subscription Services are capable of processing Content that is uploaded to the Services, including Third Party Content. For instance, Customer may be able to use the Subscription Services to retrieve, manage and post content to their social networking accounts or to retrieve Content from a variety of other third-party websites. Customer acknowledges that its use of any Third Party Content or other third party service is governed by the terms of the applicable service provider, not this Agreement and that Customer, not Clarabridge, is a party to such terms and solely responsible for compliance with such terms. Further, as between the Parties, Customer alone is responsible for selection of all Content, any consents required by law or otherwise for the use of such Content, and Customer assumes all risks associated with the content, accuracy, completeness, integrity, legality, reliability and appropriateness of Content and the use of all such Content contemplated by this Agreement. If any provider of Third Party Content ceases to make the same available for use as contemplated in this Agreement on acceptable terms, Clarabridge shall without liability or refund obligation have the right to discontinue retrieving, accessing and/or processing such Third Party Content.

4.2 Rights in Content and Access to Social Media Accounts.

4.3. Content Disclaimers.

4.4. Security; Protection of Customer Content; Privacy.

Clarabridge will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Content and other Customer Confidential Information, as described in its security documentation for Engagor products located at: http://cxsocial.clarabridge.com/security, which is incorporated into this Agreement by this reference. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Content by Clarabridge personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compliance with Legal Duties) below, or (c) as Customer expressly permits in writing. All personal data that Clarabridge collects from Customer will be processed in accordance with its Privacy Policy for Engagor products, which is incorporated into this Agreement by this reference https://app.engagor.com/privacy-policy. Customer consents to personal data being used and processed in accordance with its Privacy Policy for Engagor products. Clarabridge shall remove the data of a specified individual upon the request of Customer (or that individual, to the extent required under applicable law) at Clarabridge’s standard professional services rates.

5. PROFESSIONAL SERVICES; STATEMENTS OF WORK.

Subject to the terms and conditions of this Agreement, Customer may request that Clarabridge provide certain Professional Services related to Customer’s use of the Subscription Services, including, by way of example, implementation and configuration of the Subscription Services, training of Customer personnel and/or provision of professional services related to the Subscription Services. Upon Customer’s request, Clarabridge shall negotiate in good faith regarding terms and conditions according to which such services would be provided. Any Professional Services to be provided will be included in an Order Form, which shall describe the fees, costs and expenses payable by the Customer for such Professional Services, and a Statement of Work, which shall describe the scope and proposed timing of such Professional Services. Each Order Form and Statement of Work shall be binding upon the Parties only after mutual execution. Each mutually executed Order Form and Statement of Work shall be considered an integral part of this Agreement.

6. FEES; PAYMENT.

6.1 Fees Payable.

In consideration for the rights granted and the promises made by Clarabridge under this Agreement, Customer agrees to pay to Clarabridge the amounts stated in each mutually executed Order Form at such times as the applicable Order Form requires. Customer agrees to make all payments, without offsets or other deductions, no later than the date when they are due. Customer agrees to provide Clarabridge with complete and accurate billing information and contact information, and to update this information within thirty (30) days of any change to it.

6.2 Additional Charges for Late Payments.

If Customer fails to make any undisputed payment when due, Clarabridge will automatically have the right, without prejudice to any other remedies it may have, and without prior notification, to charge an additional fee equal to one percent (1%) of the overdue amount for each full or partial month that the amount remains unpaid. If Clarabridge elects to charge these additional amounts, Customer agrees to pay the charges in full within thirty (30) days after Clarabridge issues an invoice.

6.3 Suspension of Access Rights.

In the event that Customer’s account is more than thirty (30) days overdue, Clarabridge shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s access to all Subscription Services, without further notice to Customer, until Customer has paid the full balance owed. No Service Level Credits will accrue as a result of any such period of suspension.

6.4 Tax Responsibilities.

Unless otherwise stated, Clarabridge’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, federal, national, or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Clarabridge has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Clarabridge with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Clarabridge is solely responsible for taxes assessable against it based on its income, property and employees.

7. CONFIDENTIALITY.

7.1 Basic duties regarding Confidential Information.

7.2 Exceptions to confidentiality obligations.

Even if some information would be considered Confidential Information according to the definition stated in this Agreement, the Recipient will have no duties regarding that information if (i) the Recipient develops the same information without any use of information obtained from the Owner; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient.

7.3 Compliance with legal duties.

The Recipient will not be in breach of this Agreement by delivering some or all of the Owner’s Confidential Information to a court, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Owner. Unless prevented by law, the Recipient agrees to notify the Owner as far in advance as reasonably possible before the Recipient delivers the Owner’s Confidential Information to any of those third parties. If requested by the Owner, and if permitted by law, the Recipient will cooperate with the Owner, at the Owner’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.

7.4 Attorneys and accountants.

The Recipient may permit its attorneys and accountants to view the Owner’s Confidential Information, provided that they are under legal and/or professional duties to maintain the information’s confidentiality, and only for purposes of advising the Recipient regarding its legal rights and duties.

8. REPRESENTATIONS AND WARRANTIES.

8.1 Mutual Representations.

Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of each Party’s respective obligations as set forth in this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

8.2 Service Warranty.

During the Term, the Subscription Service offerings conform in all material respects with the Documentation and will meet the Service Levels specified on Exhibit A. If the applicable Subscription Service fails to conform or achieve the Service Levels so specified, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Subscription Service in accordance with the terms set forth on Exhibit A. The respective Subscription Service’s system logs and other records shall be used for calculating any Service Level events. Clarabridge represents and warrants that all Professional Services shall be provided in a professional and workmanlike manner, in accordance with industry standards. The Professional Services shall be performed by personnel with appropriate skill and training.

8.3 Customer Representations and Warranties.

Customer represents and warrants that it will not, nor will it permit or authorize anyone else to (i) upload to the Subscription Services any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system, data or personal information, or (ii) upload, post, store, view, transmit, distribute or otherwise publish any Content to or using the Subscription Services that (A) restricts or inhibits any other person from using and enjoying the Subscription Services, (B) is unlawful, fraudulent, threatening, abusive, libelous, defamatory, invasive of another’s privacy or otherwise tortious; (C) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, national or international law; or (D) violates or infringes the rights of third parties, including, but not limited to, Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights.

8.4 Disclaimers.

EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, THE DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLARABRIDGE ARE PROVIDED “AS IS,” AND CLARABRIDGE DISCLAIMS ANY AND ALL OTHER PROMISES, CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. CLARABRIDGE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLARABRIDGE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.

9. INDEMNIFICATION.

9.1 Indemnification of Customer.

9.2 Customer’s Indemnity Obligations.

Customer agrees to defend or settle, any claim brought against Clarabridge by any third party arising from (i) allegations that the Customer Content or Third Party Content, or Customer's use of the Subscription Services in breach of this Agreement or pursuant to Customer’s Assumed Risks, infringes or misappropriates such third party’s Intellectual Property Rights or rights of privacy or rights of publicity under applicable laws, or (ii) claims based upon a breach of Section 8.1. Customer shall pay all amounts that are finally awarded against Clarabridge based on any such claims by a court of competent jurisdiction or any amounts that Customer has agreed to pay in settlement of the relevant third-party claim.

9.3 Indemnification Procedures.

With respect to any claim, demand or action for which an indemnity is provided under this section, the Party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying Party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.

10. EXCLUSIONS AND LIMITATIONS OF LIABILITY.

10.1 Exclusions of Remedies; Limitation of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER FORM, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO CLARABRIDGE BY THE CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

10.2 Essential Basis of the Agreement.

Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 10 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

11. TERM AND TERMINATION.

11.1 Duration of Agreement.

The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect for so long as any Access Term remains in effect and for thirty (30) days thereafter, unless it is terminated by one of the Parties in one of the situations permitting termination as set forth below in this Section 11 (the “Term”). This Agreement will expire as of the date that is five (5) business days following the date when all Access Terms have expired.

11.2 Termination for Breach.

Either Party may terminate this Agreement immediately by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach.

11.3 Termination Upon Bankruptcy or Insolvency.

To the maximum extent permitted by applicable law, either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.

11.4 General consequences of termination.

Effective immediately upon expiration or termination of this Agreement, (i) Customer shall cease, and shall direct its users to cease, use of the Subscription Services, (ii) all licenses granted under this Agreement will become void, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party. If a Party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the Party will make payment in full within ten (10) days after the expiration or termination. Following expiration or termination Clarabridge will have no obligation to retain Content and may, unless legally prohibited, elect at its sole option to delete all such Content from its systems.

11.5 Continuing Force of Certain Provisions.

Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Section 3, 6, 7, 9 (with regard to claims accrued prior to expiration or termination), 10, 11.4 11.5, 12 and 13. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.

12. MISCELLANEOUS PROVISIONS.

12.1 Notices.

All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient, to the Parties at their respective addresses set forth on the Cover Page, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. Notices to Clarabridge shall be addressed to the attention of its General Counsel and its Chief Financial Officer and copied by email to Legal@clarabridge.com, and notices to Customer shall be addressed to the person identified as Customer’s primary point of contact on the Cover Page, unless in either case the receiving Party has otherwise indicated by written notice in accordance with this provision. Such notices will be effective on the date of such transmittal or receipt. In the event that either Party delivers any notice by means of email transmission, unless the receiving Party responds with confirmation of receipt, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party.

12.2 Excuse from liability for non-performance due to force majeure.

Except for payments owed hereunder, if a Party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing Party.

12.3 Assignment.

This Agreement shall be binding and inure to the benefit of Customer, Clarabridge and each of their respective successors and assigns. Neither Party shall assign its rights or obligations under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect, provided that either Party may assign this Agreement to an acquirer, who is not a competitor of the other Party, of all or substantially all of the assets to which this Agreement relates by operation of law or otherwise, without the prior written consent of the other Party.

12.4 No Third Party Beneficiaries.

The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

12.5 Governing Law; Jurisdiction.

THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FAIRFAX COUNTY, VIRGINIA. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. To the fullest extent permitted by law, each Party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such Party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.

12.6 Entire Agreement.

The Parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that this Agreement addresses, including the Parties' respective confidentiality obligations. The Parties also agree that any prior agreements or representations about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force.

12.7 Customer Reference Program.

Customer agrees that Clarabridge may use Customer's name and logo on its website listings of customers.

12.8 Independent Contractor.

The Parties are and shall be independent contractors to one another, and nothing herein shall be interpreted or construed as creating or establishing the relationship of employer and employee, partners, agent, a joint venture or any other legal relationship.

12.9 Interpretations.

The Parties agree that the following rules should be applied when interpreting the words of this Agreement, unless the express words of the Agreement indicate otherwise: (i) all references to one gender apply equally to both genders; (ii) definitions of nouns in the singular also apply to the plural, and vice versa; and (iii) any use of the term “including,” if followed by a list, will be interpreted to mean “including, without limitation.” If any provision in this Agreement requires a writing, the writing must be typed or hand-written on paper, and any provision requiring a signed writing will be interpreted to require an electronic signature (in accordance with applicable law) or a hand-written signature. References to “sections,” “paragraphs,” “clauses” and “provisions” are references to portions of this document only, unless the reference expressly states otherwise. Whenever this Agreement makes reference to a certain number of days, it is referring to calendar days, unless it specifically references “business days,” in which case the counting of days will exclude Saturdays, Sundays, and all holidays when the offices of U.S. federal agencies are closed.

12.10 Background Information.

If any background information or “recitals” are contained on the first page(s) of this document prior to the contractual provisions, the Parties intend that such information and recitals should have no legally binding effect whatsoever, nor be interpreted as representations or warranties.

12.11 Participation in Drafting.

The Parties intend that this Agreement should be interpreted in all instances as if they participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a Party on the basis that it drafted the provision.

12.12 Enforceability.

Even if the law will not enforce a provision of this Agreement in a particular instance, the Parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner or be modified so that would render it enforceable, while still reflecting the Parties’ mutual intent, they intend for that interpretation or modification, as applicable, to apply. If permitted by law, the Parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.

12.13 Agreement Amendments.

The Parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.

12.14 Waivers.

Even if a Party fails to enforce its rights under this Agreement in a particular instance, the other Party must still perform its duties in that instance unless the non-enforcing Party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.

12.15 No implications of section titles.

The titles to each of the sections of this Agreement are intended only to facilitate convenient reference; the Parties agree that those titles are not part of the Agreement and should not be used to interpret any part of this Agreement.

12.16 Execution of Multiple Copies.

If the Parties sign multiple copies of this Agreement, they intend that all of those copies will be considered original copies, but together all of those copies represent only one contract.

13. GLOSSARY OF DEFINED WORDS AND PHRASES.

For purposes of this Agreement, certain capitalized words and phrases will have the meanings set forth or cross-referenced below.

“Access Rights”
are contractual rights to access, receive, use and digitally display the Subscription Services according to the procedures and protocols established according to this Agreement. The scope of any particular Access Rights may be defined by the terms of the applicable Order Form pursuant to which such Access Rights are purchased, including the Access Term, number of streams, and number and type of Authorized End Users.
“Access Term”
means the period of time during which particular Access Rights remain valid, as stated in the applicable Order Form. For avoidance of doubt, particular sets of Access Rights purchased under separate Order Forms may have differing Access Terms.
“Authorized End Users”
are individual named persons for whom Customer has purchased Access Rights, and may include only employees or agents of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business.
“Confidential Information”
means all confidential data or information in any form disclosed by one Party to the other Party by any means. As a non-exhaustive list of examples, Confidential Information includes data, information regarding a Party’s financial condition and financial projections, business and marketing plans, product plans, product prototypes, the results of product testing, research data, market intelligence, technical designs and specifications, secret methods, source code of proprietary software, the content of unpublished patent applications, customer lists, vendor lists, internal cost data and the terms of contracts with employees and third parties.
“Content”
means the Customer Content and the Third Party Content.
“Customer Content”
means the data (structured and unstructured), media, and other content generated, collected or recorded by the Customer, or by any supplier or licensor to Customer, that is uploaded to or that is otherwise made available by the Customer to the Subscription Services.
“Documentation”
means the manuals, tutorials, reference materials and similar materials, whether in print or electronic format, ordinarily provided by Clarabridge to customers that describe the functionality of the Subscription Services.
“Intellectual Property Rights”
are all intellectual property rights, including the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, and any rights in databases recognized by applicable law.
“Order Form”
means a document which expressly identifies itself as an order form that is subject to this Agreement, whereby the Customer orders one or more of the following: (i) Access Rights for the Subscription Services; (ii) Professional Services; or (iii) any other products or services offered by Clarabridge.
“Professional Services”
means configuration services, training services, and/or technical support services.
“Reports”
means the content of any reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by the Services that are comprised of reports on or representations of Content or other Customer Confidential Information after processing or transformation in any manner by or pursuant to the Services; but excluding for the purposes of clarity the format, design, method, algorithms and all intellectual property and technology and any Intellectual Property Rights therein used in or underlying the preparation and presentation of the Reports.
“Service Levels”
means the standard service levels provided by Clarabridge, as further described in Exhibit A.
“Services”
means, collectively or individually, the Subscription Services and/or the Professional Services.
“Statement of Work”
means a separate, mutually signed document that unambiguously identifies this Agreement and expressly states that the Parties intend for it to be considered a Statement of Work under this Agreement, and that (i) identifies the duties that each Party agrees to perform and, if applicable, the time period during which those duties are to be performed and/or completed; (ii) identifies any deliverables to be provided by either Party; and (iii) states any payments to be made by Customer and any other applicable economic terms.
“Subscription Services”
means the particular online services identified in a mutually executed Order Form, to be performed by means of Clarabridge’s proprietary methodologies and systems, to which Access Rights are purchased by Customer, and to which access is provided by Clarabridge via its Web site. Customer acknowledges that the Subscription Services may include access to particular functional modules of Clarabridge’s system, but not to other modules, as may be indicated in the applicable mutually executed Order Form. Each of the particular Subscription Services ordered by Customer pursuant to this Agreement and any mutually executed Order Form are subject to the Product Terms set forth with regard to each such Subscription Service on Exhibit B.
“Third Party Content”
means all data, social media content, posts, blogs, surveys, ratings, reviews, feedback or any other information collected or otherwise obtained from any website by Customer using the automated tools within the Subscription Services, including without limitation, Facebook, Twitter and LinkedIn.
“Website”
means the Engagor website located at https://cxsocial.clarabridge.com/.

[End of Terms of Service]

Exhibit A

Premium Service Levels

Exhibit B

Product Terms

Product Name Product Code Product Terms
Engagor Stream 10-pack SaaS-ENGR-Stream10 Engagor Stream 10-pack: Each stream includes one (1) search and up to one hundred thousand (100,000) annual mentions per stream.  To the extent a search exceeds one hundred thousand (100,000) annual mentions, an additional stream or additional streams (as necessary) will be counted toward such search.  Each individual search will also be counted as a stream.  Streams will be counted in this manner until all purchased streams applicable to the subscription term have been utilized.  Streams that are not utilized during the applicable annual (or otherwise specified) term will be forfeit.
Named Engagor Enterprise User(s) SaaS-ENGR-ENT-User Named Engagor Enterprise User(s): Subscription for access to Engagor Enterprise Edition by one (1) Authorized End User for each subscription purchased.  Engagor Enterprise Edition includes multiple inboxes and tailored smart-folders, real-time engagement dashboard, analytics and reporting, built-in chat, tasks and assignments, specialized reports and dashboards, advanced email alerts, workflow automation and approval flows, team performance dashboard, specialized user roles, unlimited free analytics users and CRM Integration. Engagor Subscription Services are purchased as user subscriptions and may be accessed by no more than the specified number of users. Free analytics users are Authorized End Users that are provided with view only access to the standard analytics and specialized dashboards.  Customer acknowledges and agrees that in order to provide certain features of the Services, Clarabridge may need to access and collect certain information from certain blogs, forums and other social media accounts on Customer's behalf ("Social Media Accounts").  As such, Customer agrees to and hereby appoints Clarabridge as Customer's agent with regards to Social Media Accounts, solely to the extent necessary to provide the Services, and Customer hereby grants Clarabridge a non-exclusive license to (i) access Customer's Social Media Accounts on behalf of Customer, and to use any usernames, passwords and/or other identifiers necessary to access such Social Media Accounts, in connection with the Service solely to the extent necessary to perform the actions requested by Customer, and (ii) scrape, crawl and otherwise collect certain information from Customer's Social Media Accounts on Customer's behalf and as Customer's agent to the extent necessary to provide the Services.  Customer acknowledges and agrees that certain content or service provided by third parties may be made available to Customer through the Services.  For instance, Customer may be able to manage and post content to their social networking accounts.  Customer's use of any third party service is governed by the terms of the applicable service provider, not this Agreement.  By accessing the third party service, Customer agrees to comply with the applicable terms and acknowledges that Customer, not Clarabridge, is a party to such terms.  Clarabridge is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites.  Further, Customer acknowledges and agrees that the outputs and deliverables provided to Customer via the Services are wholly dependent upon the actions and inputs taken or provided by Customer on the Services.  Clarabridge makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Services.  Clarabridge provides these links for Customer's convenience only and Clarabridge does not control such websites or applications.  Clarabridge’s use of the third party services to power the Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators.  Clarabridge assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content.  CUSTOMER AGREES THAT IN NO EVENT WILL CLARABRIDGE BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.
Named Engagor Team User(s) SaaS-ENGR-Team-User Named Engagor Team User(s): Subscription for access to Engagor Team Edition by one (1) Authorized End User for each subscription purchased.  Engagor Team Edition access includes up to 20 inboxes and tailored smart-folders, real-time engagement dashboard, analytics and reporting, built-in chat, tasks and assignments, specialized reports and dashboards, advanced email alerts, workflow automation and approval flows, team performance dashboard.  Engagor Subscription Services are purchased as user subscriptions and may be accessed by no more than the specified number of users. Customer acknowledges and agrees that in order to provide certain features of the Services, Clarabridge may need to access and collect certain information from certain blogs, forums and other social media accounts on Customer's behalf (“Social Media Accounts”).  As such, Customer agrees to and hereby appoints Clarabridge as Customer's agent with regards to Social Media Accounts, solely to the extent necessary to provide the Services, and Customer hereby grants Clarabridge a non-exclusive license to (i) access Customer's Social Media Accounts on behalf of Customer, and to use any usernames, passwords and/or other identifiers necessary to access such Social Media Accounts, in connection with the Service solely to the extent necessary to perform the actions requested by Customer, and (ii) scrape, crawl and otherwise collect certain information from Customer's Social Media Accounts on Customer's behalf and as Customer's agent to the extent necessary to provide the Services.  Customer acknowledges and agrees that certain content or service provided by third parties may be made available to Customer through the Services.  For instance, Customer may be able to manage and post content to their social networking accounts.  Customer's use of any third party service is governed by the terms of the applicable service provider, not this Agreement.  By accessing the third party service, Customer agrees to comply with the applicable terms and acknowledges that Customer, not Clarabridge, is a party to such terms.  Clarabridge is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites.  Further, Customer acknowledges and agrees that the outputs and deliverables provided to Customer via the Services are wholly dependent upon the actions and inputs taken or provided by Customer on the Services.  Clarabridge makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Services.  Clarabridge provides these links for Customer's convenience only and Clarabridge does not control such websites or applications.  Clarabridge’s use of the third party services to power the Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators.  Clarabridge assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content.  CUSTOMER AGREES THAT IN NO EVENT WILL CLARABRIDGE BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.
Named Engagor Professional User(s) SaaS-ENGR-Pro-User Named Engagor Professional User(s):  Subscription for access to Engagor Professional Edition by one (1) Authorized End User for each subscription purchased. Engagor Pro Edition includes, real-time engagement dashboard, analytics and reporting, built-in chat, tasks and assignments, specialized reports and dashboards, advanced email alerts. Engagor Subscription Services are purchased as user subscriptions and may be accessed by no more than the specified number of users. Customer acknowledges and agrees that in order to provide certain features of the Services, Clarabridge may need to access and collect certain information from certain blogs, forums and other social media accounts on Customer's behalf ("Social Media Accounts").  As such, Customer agrees to and hereby appoints Clarabridge as Customer's agent with regards to Social Media Accounts, solely to the extent necessary to provide the Services, and Customer hereby grants Clarabridge a non-exclusive license to (i) access Customer's Social Media Accounts on behalf of Customer, and to use any usernames, passwords and/or other identifiers necessary to access such Social Media Accounts, in connection with the Service solely to the extent necessary to perform the actions requested by Customer, and (ii) scrape, crawl and otherwise collect certain information from Customer's Social Media Accounts on Customer's behalf and as Customer's agent to the extent necessary to provide the Services.  Customer acknowledges and agrees that certain content or service provided by third parties may be made available to Customer through the Services.  For instance, Customer may be able to manage and post content to their social networking accounts.  Customer's use of any third party service is governed by the terms of the applicable service provider, not this Agreement.  By accessing the third party service, Customer agrees to comply with the applicable terms and acknowledges that Customer, not Clarabridge, is a party to such terms.  Clarabridge is not responsible for the accuracy, suitability, or quality of the services, content, products, materials, or practices (including privacy practices) of such third parties, including social networking sites.  Further, Customer acknowledges and agrees that the outputs and deliverables provided to Customer via the Services are wholly dependent upon the actions and inputs taken or provided by Customer on the Services.  Clarabridge makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of the third party websites, products, services or applications accessible by hyperlink or otherwise from the Services.  Clarabridge provides these links for Customer's convenience only and Clarabridge does not control such websites or applications.  Clarabridge’s use of the third party services to power the Services, and its inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators.  Clarabridge assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content made available by other users, advertisers and other third parties or violation of any third party rights related to such content.  CUSTOMER AGREES THAT IN NO EVENT WILL CLARABRIDGE BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.