Effective Date: 05/01/2023
a) "Administrator" shall mean a Subscriber with the authority to designate additional Authorized Users and/or Administrators and commit the Subscriber to additional services from Clever Case.
Exhibit A – Clever Case Authorized Sub processors
c) "Authorized User" shall mean an individual subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
d) "Confidential Information" shall mean the Content and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement, including, but not limited to, either party's research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party's premises.
e) "Content" shall mean any information you upload or post to the Service and any information provided by you to Clever Case in connection with the Service, including, without limitation, information about your Authorized Users or Registered Clients.
f) "Primary Subscriber" shall mean the Subscriber who initiated the Services offered by Clever Case and is assumed by Clever Case to have the sole authority to administer the subscription.
g) "Registered Client" means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized User.
h) "Service" shall mean any software or services provided by Clever Case.
i) "Subscriber" shall refer to the purchaser of the Services provided by Clever Case and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney, and any entity or person who had authority to act on your behalf.
j) "Security Emergency" shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Clever Case's provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third-party access to the Service.
2) Limited License & Utilization of the Service
a) Clever Case grants Subscriber a non-transferable, non-exclusive, restricted license to access and utilize the Service.
b) Clever Case neither screens nor reviews the Content beforehand and asserts no intellectual property rights concerning the Content.
c) Authorized Users commit to refrain from duplicating, copying, selling, reselling, or exploiting the Service, any portion thereof, or access to the Service, including but not limited to HTML, CSS, or any visual design elements, without Clever Case's explicit written consent.
d) Authorized Users commit not to tamper with, reverse engineer, modify, or adapt the Service, nor to falsely imply association with the Service, Clever Case, or any other software or service provided by Clever Case by altering another website.
e) Authorized Users commit not to knowingly use the Service in a manner that infringes copyright or intellectual property rights or that is offensive, threatening, libelous, defamatory, pornographic, obscene, or in violation of this Agreement.
f) Authorized Users commit not to knowingly use the Service to transmit, host, post, or upload unsolicited bulk emails "Spam," SMS messages, viruses, worms, or any destructive or malicious code.
g) Except for the non-exclusive license granted under this Agreement, Subscriber acknowledges and agrees that all ownership, license, intellectual property, and other rights and interests in and to the Service shall remain solely with Clever Case.
h) Authorized Users who choose to share or make available specific Content to the public are deemed to agree that everyone will have access to such Public Content. It is the Authorized User's responsibility to ensure that shared Service is appropriate for each Registered User. Clever Case reserves the right to take any necessary action regarding Public Content that violates this Agreement at its sole discretion, including but not limited to removing such Public Content.
i) Clever Case reserves the right to modify or discontinue any feature associated with the Service, temporarily or permanently, with or without notice, at any time. However, Clever Case shall provide a 30-day notice to Subscriber for any modification that significantly reduces the Service's functionality. Subscriber's continued use of the Service following any modification constitutes acceptance of the new terms.
j) Clever Case reserves the right to temporarily suspend access to the Service for operational purposes, including but not limited to maintenance, repairs, or upgrades. Clever Case will endeavor to provide at least two business days' notice before any such suspension through notifications within the Service, email, or other appropriate methods. Furthermore, Clever Case shall make every effort to minimize disruption during planned operational suspensions but reserves the right to temporarily suspend operations without notice to complete necessary repairs. Clever Case will use the same notification methods to provide updates on the nature and duration of any temporary suspension.
k) Clever Case stores all Content on redundant storage servers. The Subscriber may opt to regularly replicate all Content associated with the subscription to a third-party storage service ("Escrow Agent"). The Escrow Agent will hold the replicated Content ("Escrowed Data") under a separate agreement exclusively between the Subscriber and the Escrow Agent ("Escrow Agreement"). The Subscriber may also opt to replicate all Content associated with the subscription on their own storage device.
l) Subscriber grants Clever Case a non-exclusive, royalty-free right to use Confidential Information for the sole purpose of performing its obligations under this Agreement in accordance with its terms during Subscriber's use of the Service. This includes permission for Clever Case to generate and publish anonymized, aggregate reports on system usage, Content trends, and types, provided they do not conflict with Section 4)a).
m) Clever Case maintains one code-base for all jurisdictions.
3) Access to Service:
a) Access and use of the Service are solely permitted for Authorized Users or Registered Clients. Authorized Users must provide their complete legal name, a valid email address, and any other information deemed reasonably necessary by the Service.
b) A unique identifier (“Username”) will be assigned to each Authorized User to access and utilize the Service. The Username is strictly for the use of the Authorized User to whom it is assigned and must not be shared or used by any other person, including other Authorized Users.
c) The Primary Subscriber, as the initial Administrator, has the authority to manage the subscription, designate additional Authorized Users, and/or assign further Administrators. Each subscription allows for multiple Authorized Users to be designated as Administrators. All Administrators are considered to have the authority to manage both the subscription and its Authorized Users. An Administrator may deactivate a Username to terminate access to the Service for any Authorized User.
d) Administrators assume responsibility for the Service usage by Authorized Users listed as active within their subscription.
e) Any Content uploaded or posted to the Service remains the property of the Subscriber, as between Clever Case and the Subscriber. In the event of Cancellation or Termination of Service, as outlined in Section 10, Clever Case is only responsible for returning Content directly to the Administrator or a designated Authorized User if the Administrator cannot be contacted.
f) The use of mechanical, programmatic, robotic, scripted, or any other automated means to access or use the Service, not provided as part of the Service, is expressly forbidden.
g) Authorized Users may access and use the Service through an Application Program Interface (“API”) under the following conditions:
i) Use of the Service via an API, including through third-party products that access and use the Service, is subject to these Terms of Service;
ii) Clever Case is not liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses (even if Clever Case has been advised of such damages), resulting from the use of an API or third-party products accessing and using the Service via an API;
iii) Excessive use of the Service through an API may lead to temporary or permanent suspension of API access. Clever Case, at its sole discretion, will determine excessive use and make a reasonable effort to warn the Authorized User before suspension;
iv) Clever Case reserves the right to modify, discontinue, temporarily or permanently, access and use of the Service through an API at any time, with or without notice.
4) Protection of Confidential Information
a) Both parties commit to maintaining the confidentiality of all Confidential Information, ensuring it is not used or disclosed, except as necessary to fulfill their obligations under this Agreement.
b) Clever Case and any third-party vendors or hosting partners engaged to provide the Service must treat the Content as strictly confidential. They are not allowed to use or disclose Content except (i) when required to perform their obligations under this Agreement; (ii) in compliance with Section 6 of this Agreement; or (iii) when authorized by you in writing.
5) Security Measures and Access
a) Clever Case is responsible for providing a secure method of authentication and access to its Service. Clever Case will implement mechanisms that:
i) enable user password management;
ii) transmit passwords securely;
iii) safeguard passwords entered for accessing the Service by adhering to password management best practices.
b) Subscriber is responsible for safeguarding the security of usernames and passwords, or any other codes related to the Service, and for the accuracy and adequacy of personal information provided to the Service.
c) Subscriber will establish policies and procedures to prevent unauthorized use of usernames and passwords and will promptly notify Clever Case if they suspect that a username and password has been lost, stolen, compromised, or misused.
d) Clever Case, and any third-party vendors and hosting partners it engages to provide the Service, will consistently:
i) apply information security best practices for transmitting and storing your Content, in compliance with industry standards;
ii) utilize information security best practices concerning network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
iii) ensure that host facilities maintain industry standards for security and privacy; and
iv) provide Subscriber with a (SOC2 or SOC3) audit report or industry standard successor report or a comparable description of its security measures regarding the data center facilities used to host the Service and the Content within thirty (30) days of a request by Subscriber. To obtain such a report, Subscriber must enter into an agreement with the third-party provider of the report.
e) Clever Case shall report to Subscriber any event that Clever Case reasonably believes constitutes unauthorized access to, disclosure of, use of, or damage to Content (a "Security Breach"), providing all relevant details (except those that could jeopardize the security of data uploaded by other customers). Clever Case shall make such report within 86 hours after becoming aware of the Security Breach.
f) In case of a Security Breach, Clever Case shall (a) collaborate with Subscriber to identify the cause of the breach and any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) aid and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertakes to protect the security and integrity of Content; and (d) use commercially reasonable efforts to mitigate any harmful effects of the Security Breach.
6) Legal Compliance
a) Clever Case maintains that its primary duty is to protect the Content within the boundaries of the law. Clever Case reserves the right to disclose Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
b) If Clever Case is required by law to disclose any Confidential Information in a manner that is prohibited or otherwise constrained by this Agreement, Clever Case will promptly provide Subscriber with written notice (to the extent permitted by law) prior to such disclosure, allowing the Subscriber to seek a protective order or other appropriate relief. In accordance with the foregoing sentence, Clever Case may disclose only that portion of the Confidential Information that is legally compelled or otherwise legally required to be disclosed.
c) Clever Case will only accept legal requests for the production of Content or other Confidential Information through the procedures listed on https://www.clevercase.com/legal.
7) Backup Management and Archiving
a) Clever Case's backup management services are designed to facilitate the restoration of Content to the server or device from which the Content originated in case the primary data is lost or corrupted. Clever Case shall ensure the recovery of lost or corrupted Content at no cost to the Subscriber. After any cancellation or termination of the Service for any reason, the Subscriber will have ninety days to retrieve any and all Content.
8) Billing, Refunds, and Subscription Modifications
a) Subscribers with paid subscriptions must provide Clever Case with a valid credit card for the payment of applicable subscription fees. All subscription fees exclude all federal, state, provincial, municipal, or other taxes, which Subscribers agree to pay based on their location. Invoices will include (i) subscription fees and (ii) all applicable sales taxes, as amended from time to time, for the jurisdiction where the Subscriber is located. In the event of updated tax rates, Clever Case will apply the new tax rate without notice to the Subscriber. In addition to any fees, the Subscriber may still incur charges incidental to using the Service, such as charges for Internet access, data roaming, and other data transmission charges.
b) Subscribers with monthly subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions canceled before the expiration of any trial period will not be charged. Monthly Subscribers will subsequently be charged in advance every 30 days. Annual Subscribers will be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
c) Subscribers who purchased setup or professional services, like tailored live training, customized forms and documents, or migration services, must initiate those services within sixty (60) days (Service Window) following their purchase. Absent a separate invoice, the date of purchase for setup or professional services will be considered the initial date of entry of a valid credit card for payment as required in §8.a. Failure of the Subscriber to initiate purchased setup or professional services within the Service Window will result in those services no longer being available and no refund will be issued.
d) No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.
e) There are no charges for canceling a subscription, and paying subscriptions canceled before the end of their current billing cycle will not be charged again in the following cycle.
f) The amount charged on the next billing cycle will automatically be updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Adding Authorized User subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes Clever Case to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
g) All prices are subject to change upon notice. Such notice may be provided via an e-mail message to the Administrator or in the form of an announcement on the Service.
h) Subscriber is responsible for paying all taxes associated with the subscription to the Service. If Clever Case has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides Clever Case with a valid tax exemption certificate authorized by the appropriate taxing authority.
i) Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Clever Case receives an amount equal to the sum it would have received had no such deduction or withholding been made.
9) Cancellation and Termination
a) Administrators are solely responsible for canceling subscriptions. An Administrator may cancel their subscription at any time by accessing the Service and visiting the designated account cancellation URL within the Service. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation URL within the Service. The Administrator may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by any other means.
b) Clever Case, in its sole discretion, has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.
c) If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Clever Case provides Subscriber with commercially reasonable notice of this violation; (iii) Clever Case uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Clever Case's reasonable satisfaction within thirty (30) days of such notice, then Clever Case reserves the right to suspend access to the Service.
d) As required by Section 7 above ("Backup Management and Archiving"), upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service. All Escrowed Data, if any, will continue to remain available for a period of six months upon cancellation or termination of a subscription in accordance with the terms of the Escrow Agreement.
10) Limitation of Liability
a) Except in the case of a violation by Clever Case of its obligations under Section 4 above ("Confidentiality"), Section 5 above ("Security Measure and Access"), and Section 7 above ("Backup Management and Archiving "), and except as provided in Section 12.b below ("Indemnification"), Clever Case shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Subscriber by Clever Case.
b) SUBSCRIBER AGREES THAT THE LIABILITY OF CLEVER CASE ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT CLEVER CASE IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER CLEVER CASE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 12.b. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CLEVER CASE TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
c) Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.
11) Disclaimer of Warranties
a) CLEVER CASE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY CLEVER CASE. NOTHING IN THIS SECTION 12.1 SHALL MODIFY CLEVER CASE'S OBLIGATION TO INDEMNIFY SUBSCRIBER AS REQUIRED BY SECTION 12.b(A) OF THIS AGREEMENT ("INDEMNIFICATION").
b) Clever Case makes no warranty that its services when provided to Subscriber in digital or electronic format will be compatible with Subscriber computer and/or other equipment, or that these Services will be secure or error free. Nor does Clever Case make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 11.b shall modify Clever Case's obligations under Section 4 above ("Confidentiality") or Section 5 above ("Security and Access") or Clever Case's obligation to indemnify you as required by Section 12.b(ii) of this Agreement ("Indemnification").
c) Clever Case hereby disclaims all warranties of any kind related to Subscriber's hardware or software beyond the warranties provided by the manufacturer of Subscriber's hardware or software.
a) Subscriber hereby agrees to indemnify and hold harmless Clever Case from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys' fees, which arise from or relate to the following:
i) Authorized Users' breach of any obligation stated in this Agreement, and
ii) Authorized Users' negligent acts or omissions.
iii) Clever Case will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber will undertake, at Subscriber's own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Clever Case. Clever Case reserves the right to participate in the defense of the claim, suit, or proceeding, at Clever Case's expense, with counsel of Clever Case's choosing.
13) Clever Case Payments
a) Clever Case offers an optional product which allows you to process payments and other payment related services ("Clever Case Payments"). In addition to Services related to Clever Case Payments provided by Clever Case, the payment processing component of Clever Case Payments is provided by the third-party payment processing provider Gravity Legal. or its affiliates ("Payment Processor"). This payment processing is a Third-Party Service and is subject to any Gravity Legal agreements and other documents referred to in such agreement (collectively, the "Payment Processing Agreement"), as modified by the Payment Processor in accordance with the Payment Processing Agreement. By enrolling in and continuing to use Clever Case Payments, Subscriber agrees to be bound by this Section 13 and the applicable terms of the Payment Processing Agreement.
a) Active subscribers can access technical support and training via phone, email, or electronic support ticket, as defined at help.clevercase.com.
b) Subscriber acknowledges and agrees that Clever Case may utilize third-party vendors and hosting partners to supply the necessary hardware, software, networking, storage, and related technology required to operate the Service.
c) The Services may allow integration with or access to products and services provided by third-party providers ("Third-Party Services"). Third-Party Services are not considered "Services" under this Agreement and are not subject to terms related to Services, such as warranties, indemnities, service commitments, or other obligations. Clever Case does not endorse or affiliate with any Third-Party Service providers, and access to and use of any Third-Party Services are subject to separate terms and conditions required by the providers. Clever Case has no control over Third-Party Services and will not be held liable for any issues arising from their use. Clever Case has no obligation to monitor or maintain any Third-Party Service and may replace, disable, or restrict access to any Third-Party Service or cancel related integrations at any time without notice. Downtime calculations do not include the unavailability of any Third-Party Service integrations. SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT LIABILITY AND REMEDIES RELATED TO THIRD-PARTY SERVICES ARE GOVERNED BY THE APPLICABLE THIRD-PARTY AGREEMENTS AND CLEVER CASE DISCLAIMS ALL LIABILITY RELATED TO SUCH THIRD-PARTY SERVICES.
d) Subscriber recognizes the risk of electronic storage and transmission of information and Content through the Service, including potential interception by third parties. Subscriber agrees not to hold Clever Case liable for any loss, damage, or injury resulting from such interception. Content is stored securely and encrypted, and only Clever Case may access and transfer the Content for strict business reasons, to provide the Service to Subscriber. Clever Case will make reasonable efforts to notify Subscriber before accessing and transferring the Content and will comply with its obligations under Sections 4 and 5 of this Agreement.
e) The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or the right to enforce it later.
f) This Agreement constitutes the entire agreement between Authorized Users and Clever Case, governing Authorized Users' use of the Service, superseding any prior agreements (including any prior versions of this agreement).
g) Clever Case reserves the right to amend this Agreement. In the event of material changes, Clever Case will notify Subscribers via email or other reasonable means before enacting the changes. Continued use of the Service by Subscriber after reasonable notice will be deemed acceptance of the new terms.
h) Neither party may assign any rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided the assignee has agreed to be bound by all terms of this Agreement. Any attempt to assign rights or obligations under this Agreement in violation of this Section will be void and have no effect.
i) Governing Law and Venue. This Agreement and your relationship with Clever Case will be governed exclusively by the laws applicable in Washington State, USA, and will be enforced, construed, and interpreted exclusively in accordance with these laws, without regard to conflict of law provisions. All disputes under this Agreement will be resolved by the courts of Washington State, and Subscribers consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.