TERMS AND CONDITIONS OF SERVICE
THESE TERMS OF SERVICE GOVERN YOUR ACCESS TO AND USE OF CLOVERLEAF’S SERVICES AND CLOVERLEAF’S PROVISION OF THE SAME. IF YOU REGISTER FOR A FREE VERSION OF CLOVERLEAF’S SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE VERSION. BY ACCESSING OR USING CLOVERLEAF’S WEBSITES AND SERVICES, YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES, AS WELL AS YOU INDIVIDUALLY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE CLOVERLEAF’S SERVICES.
EFFECTIVE DATE: April 14, 2023
Company reserves the right, in its sole discretion, to change or modify the Terms of Service, whether in whole or in part, without notice. If Company changes the Terms of Service, Company will post such new terms on the Site and any such changes or modifications will become effective upon posting. Your access to and use of the Services, following the posting of any such changes or modifications, will constitute your acceptance of the Terms of Service as revised.
If you and Company have executed a written agreement governing your access to and use of the Services, then the terms of such signed agreement will control to the extent that services agreement conflicts with these Terms.
These Terms of Service (these “Terms”) are made by and between the party accepting these Terms and/or the party on whose behalf they are accepted (“Subscriber”) and Cloverleaf and are effective as of the date set forth in Section 7.1. “Cloverleaf” means Cloverleaf.me, Inc., a Delaware corporation located at 310 Culvert Street, Suite 301, Cincinnati, OH 45202. The complete agreement with respect to the Services (the “Agreement”) includes these Terms, any online or written ordering documents detailing the scope of Services, which may or may not include a statement of work (each a “Service Order”), and/or any document incorporated herein or therein by reference. For purposes of this Agreement, “Services” means (a) the provision by Cloverleaf of the Modules to Subscriber; (b) the Support Services; (c) Start-Up Service; (d) Professional Services; and (e) such additional services as described in the Service Order.
2.1 During the Term (defined below), Cloverleaf shall host (or have hosted) Cloverleaf’s proprietary system (the “Cloverleaf Platform”) in order for Subscriber to utilize the functionality of the Cloverleaf Platform’s licensed modules as set forth in the Service Order (“Modules”) in accordance with the then-current written product documentation, technical information, or user manuals provided to Subscriber in connection with the Cloverleaf Platform (“Documentation”). Subject to the Subscriber’s compliance with the Agreement, Cloverleaf shall provide Subscriber with access to the Cloverleaf Platform via a web-enabled user interface.
2.2 Subscriber may access the Cloverleaf Platform, including Subscriber’s configured area within the Cloverleaf Platform (the “Subscriber Portal”), via password. Subscriber shall be responsible for: (a) maintaining the confidentiality and security of its password(s), including, but not limited to, properly logging out of the Subscriber Portal; (b) immediately notifying Cloverleaf of any loss, or any unauthorized use of, Subscriber’s password(s) or account(s) or any other breach of security that is known or suspected by Subscriber; and (c) requesting, disclosing and using the passwords solely as required to use the Services in accordance with the Agreement. Cloverleaf cannot and will not be liable for any loss or damage arising from Subscriber’s failure to comply with this Section, notwithstanding any language elsewhere in the Agreement. Unless otherwise agreed in writing by Cloverleaf, Subscriber may not share accounts with other Subscribers.
2.3 Cloverleaf will perform the consulting, training, configuration, development and/or integration Services as expressly set forth in the Purchase Order, if applicable (“Start-Up Service”). Any additional consulting, training, development, configuration, development and/or integration services are out of scope and subject to Cloverleaf agreeing to provide such services and may be subject to additional fees. Unless otherwise agreed, if Cloverleaf provides these services, such work will be subject to this Agreement. For clarity, unless otherwise expressly specified in the Service Order, any configuration or customization modifications requested that are not included in the Start-Up Service are out-of-scope and subject to additional fees.
2.4 During the Term and subject to the Subscriber’s compliance with the Agreement, Cloverleaf shall make commercially reasonable efforts to provide telephone and e-mail support for Errors during Cloverleaf’s normal business hours, which, as of the Effective Date, is 9:00 AM to 5:00 PM EST Monday through Friday (“Support Services”) for the Modules subscribed to by Subscriber pursuant to this Agreement. For purposes of this Section, “Error” means a reproducible defect in a Module of the Cloverleaf Platform, which causes such Module not to operate substantially in accordance with its applicable Documentation. Cloverleaf does not provide Support Services for problems that are caused by the hardware and/or software that Subscriber uses in conjunction with the Cloverleaf Platform (such as network products, web servers, and operating system software). In addition, under no circumstances will Cloverleaf be obligated to provide Support Services for problems resulting from use of the Cloverleaf Platform other than as authorized in this Agreement. Unless agreed pursuant to a Service Order, Support Services do not include (a) custom modifications to the Cloverleaf Platform; (b) maintenance and support of any customization or any Non-Cloverleaf Services (defined below); (c) necessary modifications to Non-Cloverleaf Services enabling them to function properly with updates, upgrades or modifications provided by Cloverleaf; nor (d) any new functionality or module that Cloverleaf has made available as a separately priced item.
2.5 Cloverleaf may provide certain consulting, training, development and/or integration services (“Professional Services”) required by and described in Service Order. Subscriber will pay Cloverleaf any fee(s) as mutually agreed to and set forth in a Service Order, as well as any expenses related to such Professional Services, unless expressly agreed otherwise in the applicable Service Order.
2.6 A Service Order may be amended only upon execution of a mutually agreed and revised Service Order (“Change Order”). Either party may request a modification to the Service Order. Absent an executed Change Order, Subscriber and Cloverleaf shall continue to fulfill their obligations pursuant to the existing Service Order.
2.7 Subscriber acknowledges that the Services do not include, and Cloverleaf has no responsibility or liability with respect to: (a) verifying any information provided; (b) advising Subscriber with respect to its employment, hiring or recruitment policies in general or any hiring or employment decision in particular; and/or (c) any decisions made on the basis of the Services. In providing the Services, Cloverleaf shall be entitled to rely upon and act in accordance with any instructions, guidelines, data or information provided by Subscriber, and shall incur no liability in doing so.
2.8 Cloverleaf reserves the right, in its sole discretion, of which Cloverleaf may choose to do at any time and from time to time, to modify or discontinue, whether temporarily or permanently, the Services, or the content thereof, with or without notice. Cloverleaf reserves the right to interrupt the operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes. Subscriber agrees that Cloverleaf will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
3.1 Cloverleaf may offer free or trial versions of the Services (“Free Services”) from time to time. If Cloverleaf provides Free Services to Subscriber, Cloverleaf will make such Free Services available to Subscriber free of charge until the earlier of (a) the start date of any paid subscription for a paid version of such Free Services, if applicable, or (b) termination of the Free Services by Cloverleaf at its sole discretion. Additional terms and conditions may appear on the registration website for Free Services and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3.2 ALL FREE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. FREE SERVICES MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). CLOVERLEAF DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION 14) FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH FREE SERVICES, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO FREE SERVICES, AND ANY CUSTOMIZATIONS MADE TO FREE SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE FREE SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLOVERLEAF’S INDEMNITY OBLIGATIONS UNDER SECTION 17 DO NOT APPLY TO FREE SERVICES.
Cloverleaf will maintain reasonable administrative, physical, and technical safeguards for the security and integrity of the Services (the “Security Measures”). Cloverleaf will store, process, transmit and disclose electronic data and configurations submitted to the Services by or on behalf of Subscriber, including, without limitation, Self-Assessment Data (“Subscriber Data”), only according to the Agreement and the Documentation.
5.1 Subscriber shall not use the Services:
5.1.1 For the transmission of material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
5.1.2 For the transmission of material that promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
5.1.3 If Subscriber is a child under the age of 13 or if Subscriber is unable to form a binding contract under applicable law.
5.1.4 In any manner that infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
5.1.5 In any manner that violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or these Terms.
5.1.6 In any manner intended to deceive or act in any way reasonably likely to deceive any person.
5.1.7 To promote any illegal activity, or advocate, promote, or assist any unlawful act.
5.1.8 To cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
5.1.9 To impersonate any person, or misrepresent Subscriber’s identity or affiliation with any person or organization.
5.2 Without limiting the generality of Section 5.1, Subscriber shall not use the Services or any consumer data provided as part of the Services: (a) as a factor in establishing an individual’s eligibility for credit or insurance; (b) in evaluating an individual for employment purposes; (c) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; (d) in a way that would cause the consumer data provided by Cloverleaf to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.; or (e) in any other manner that would cause such use of the Services or any materials provided by Cloverleaf as part of the Services to be construed as a consumer report by any authority having jurisdiction over any of the parties.
6.1 If Subscriber is entering into this Agreement in its individual capacity, it may be required to take a series of self-assessment tests and provide information about Subscriber (collectively, “Self-Assessment Data”). Any Self-Assessment Data that Subscriber provides through the Services becomes a part of Subscriber’s user profile which may also be shared with Subscriber’s associated organization(s), if any. If Subscriber shares Self-Assessment Data with an organization, other users within that organization will have access to Subscriber’s Self-Assessment Data. Subscriber’s Self-Assessment Data will be displayed along with Subscriber’s profile to that organization. Subscriber and Subscriber’s organizations may also place Subscriber’s profile into teams or groups, and the users of such teams and groups will have access to Subscriber’s profile and Self-Assessment Data. The Services may enable users to manage their information (e.g., keep their information up to date, re-take self-assessment tests if they choose, share information and results with others and delete information upon request). Cloverleaf is not responsible for the accuracy of Subscriber’s Self-Assessment Data or any information that Subscriber posts to its profile. Cloverleaf cannot prevent such information from being used by others in a manner that may violate this Agreement, the law, or Subscriber’s personal privacy.
6.2 Subscriber Data.
As between Cloverleaf and Subscriber, Subscriber is solely responsible for Subscriber Data and Subscriber will ensure that Subscriber Data complies with applicable laws and regulations. Subscriber, not Cloverleaf, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use all Subscriber Data.
6.3 Personnel and Performance.
Subscriber will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement. Subscriber enters into the Agreement on behalf of its affiliates that make use of the Services.
6.4 Non-Cloverleaf Services.
Subscriber may choose to use services not provided by Cloverleaf (“Non-Cloverleaf Services”) with the Services and in doing so grants Cloverleaf permission to interoperate with the Non-Cloverleaf Services as directed by Subscriber or the Non-Cloverleaf Services. Unless specified in a Service Order: (a) Cloverleaf does not warrant or support Non-Cloverleaf Services, (b) as between Cloverleaf and Subscriber, Subscriber assumes all responsibility for the Non-Cloverleaf Services and any disclosure, modification or deletion of Subscriber Data by the Non-Cloverleaf Services and (c) Cloverleaf shall have no liability for, and Subscriber is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-Cloverleaf Services or any change in the ability of Cloverleaf to interoperate with the Non-Cloverleaf Services.
Subscriber (a) shall comply with the Cloverleaf Acceptable Use Policy in Section 5 of this Agreement (the “AUP”); (b) shall use the Services in accordance with the Agreement; (c) shall use the Services in accordance with the applicable Documentation; (d) shall prevent unauthorized access to or use of the Services; (e) shall promptly notify Cloverleaf of any unauthorized access or use of the Services; (f) shall not use the Services to store, transmit or display Subscriber Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (g) shall, unless otherwise agreed upon in writing by Cloverleaf, not make the Services available to, or use the Services for the benefit of, anyone other than Subscriber’s own personnel or end users; (h) shall not use the Services to store, transmit or display any disabling codes or instructions, spyware, Trojan horses, worms, viruses or other software routines that facilitate or cause unauthorized access to, or disruption, impairment, disablement, or destruction of, the Services, data or other materials (“Malicious Code”); (i) shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (j) shall not attempt to gain unauthorized access to any of Cloverleaf’s datacenters, systems or networks; (j) shall not permit direct or indirect access to or use the Services in a way that circumvents a usage or capacity limit of the Services or use the Services to access or use any of Cloverleaf’s intellectual property except as permitted under the Agreement; (k) shall not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as permitted under this Agreement or otherwise agreed upon in writing by Cloverleaf; (l) subject to Section 11.2, shall not copy, modify or create a derivative work of the Services or any part, feature, function, or user interface thereof; (m) shall not access the Services or use the Documentation to develop a competitive product or service; (n) subject to Section 11.2 except as permitted by applicable laws or governmental regulations, shall not reverse engineer, decompile, translate, disassemble or otherwise attempt to extract any or all of the source code of the Services; (o) shall not alter, remove or obscure any copyright, trademark or other proprietary notices or confidentiality legend on the Services; (p) shall obtain and maintain appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems and internet access; (q) obtain and maintain any required consents necessary to permit the processing of Subscriber Data by Cloverleaf under the Agreement; and (r) obtain and maintain any consents necessary to permit the processing by Cloverleaf of the personal information of Subscriber’s personnel that serve as Subscriber’s designated contact for purposes of the Services and the Agreement.
6.6 Service Notices.
If Cloverleaf becomes aware that Subscriber has violated or may violate Subscriber’s obligations under this Agreement, including, without limitation, this Section 6, Cloverleaf will notify Subscriber by email (the “Service Notice”) and request Subscriber to take reasonably appropriate action, including ceasing problematic usage, changing a configuration, updating account credentials or removing applicable Subscriber Data. If Subscriber fails to comply with a Service Notice within the time period set forth in the Service Notice, Cloverleaf may block Subscriber’s access to the Services until the requested action is taken and/or terminate Subscriber’s use of and/or access to the Services. Without limiting Cloverleaf’s rights and remedies, if Subscriber fails to comply with any Service Notice, Cloverleaf may terminate the Agreement immediately for cause. Cloverleaf also responds to notices of alleged copyright infringement and may block access to the applicable Service or terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act of 1998. All limitations of access, suspensions, and terminations for cause shall be made in Cloverleaf’s sole discretion and Cloverleaf shall not be liable to Subscriber or any third party for any termination or suspension of Subscriber’s account or access to the Services.
Term and Termination.
Unless earlier terminated, this Agreement is effective as of the earlier of (i) the date on which Subscriber accesses, uses, or receives the Services or (ii) the “Start Date” set forth in the earliest Service Order, and shall continue effect until the date set forth in the Service Order (the “Term”).
7.2 Termination for Cause.
In addition to Cloverleaf’s right to terminate the entire Agreement under Section 6.6:
7.2.1 Subscriber or Cloverleaf may terminate the entire Agreement for cause (a) upon 30 days’ written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) if the other party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (ii) goes out of business or (iii) ceases its operations; and/or
7.2.2 Cloverleaf may terminate this Agreement for cause upon five (5) days written notice to Subscriber in the event that Subscriber exceeds or attempts to exceed the Included Usage, as defined in the Service Order.
7.3 Effect of Termination.
Upon termination or expiration of this Agreement: (a) the license granted to the Services will terminate; (b) Subscriber will immediately cease using the Services, and will destroy all copies of all Documentation or other content provided by Cloverleaf hereunder; (c) Cloverleaf will have no further obligation to provide access to the Services or Subscriber Data; (d) any amounts due under a Service Order will become immediately due and payable; and (e), except as otherwise provided in Section 10, each party will return or destroy all copies of Confidential Information of the other party (in accordance with the other party’s direction). Subscriber acknowledges and agrees that, upon expiration or termination of this Agreement for any reason, Cloverleaf may permanently delete any Subscriber Data in its possession or control and Cloverleaf shall have no liability for deletion of such Subscriber Data.
Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including this Section 7.4, Sections 6.5, 9.1, 9.2, 10, 11.1, 11.3, 11.5, 12, 13, 14, 15, 16.3 and 17 and Sections 19 through 27.
From time to time, Cloverleaf may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). Subscriber may accept or decline Beta Services. If accepted by Subscriber, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by Subscriber for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. Cloverleaf may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. BETA SERVICES MAY BE TERMINATED AT ANY TIME. CLOVERLEAF DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
Fees and Payment.
Subscriber will pay all fees specified in Service Orders and provide accurate and updated billing contact information. Except as set forth in a Service Order, all fees payable under the Agreement shall be made in U.S. Dollars. Minimum commitments in Service Orders are (a) based on Services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term. Fees paid for minimum commitments are not refundable. Subscriber’s payments of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement or any Service Order.
9.2 Invoicing Terms.
If the Service Order specifies that payment will occur by a method other than a credit card, Subscriber will provide a purchase order number (if necessary), and promptly notify Cloverleaf of any changes necessary for payment of an invoice. Cloverleaf will invoice Subscriber either monthly or according to the billing frequency stated in the Service Order. Invoices are due upon receipt unless stated otherwise in the Service Order. If any invoiced amount is not received by Cloverleaf by the due date, then without limiting Cloverleaf’s rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) Cloverleaf may condition future subscription renewals and Service Orders on shorter payment terms. If Subscriber is paying for Services by credit card, Subscriber will provide Cloverleaf’s authorized payment processer with valid credit card information and promptly notify Cloverleaf’s authorized payment processor of any changes necessary to charge the credit card. The provision of credit card information to Cloverleaf’s authorized payment processer authorizes Cloverleaf, through its authorized payment processer, to charge the credit card for all Services specified in a Service Order, and any renewal subscription. Subscriber acknowledges that Cloverleaf will not have access to Subscriber’s credit card information.
9.3 Suspension of Service and Acceleration.
If any amount owing by Subscriber is thirty (30) or more days overdue (or fifteen (15) or more days overdue in the case of invoices to be paid by credit card), Cloverleaf may, without limiting any rights and remedies, accelerate Subscriber’s unpaid fee obligations to become immediately due and payable, and block the provision of Services to Subscriber until the overdue amounts are paid in full. Cloverleaf will give Subscriber at least 10 days’ prior notice that its account is overdue, in accordance with Section 20, before blocking Services to Subscriber.
9.4 Payment Disputes.
Cloverleaf will not exercise any rights to block Services, accelerate payments, impose late charges or change payment terms under Section 9.2 and Section 9.3 with respect to an overdue amount for so long as Subscriber is disputing the overdue amount in good faith; provided, however, that Subscriber shall immediately pay any amount that is not subject to a good faith dispute. The parties shall cooperate diligently to resolve the dispute.
9.5 Price Changes.
Cloverleaf may change its prices for the Services upon written notice to Subscriber which will take effect thirty (30) days after Cloverleaf makes such price changes available to Subscriber. If Subscriber objects to the change in price, Subscriber may unsubscribe from the Services prior to the price change going into effect.
All discounts, including initial term discounts, applied to a Subscriber’s subscription to the Services will not apply to any future subscription renewals unless Cloverleaf otherwise agrees in writing, and Cloverleaf may charge Subscriber the then-current undiscounted rate for the Services for such subsequent subscription renewals. Subscriber acknowledges that discounts are not intended to be repeated or replicated for affiliates of Subscriber.
Fees for Services do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its Service Orders. If Cloverleaf is obligated by law to pay or collect Taxes for which Subscriber is responsible, Cloverleaf will invoice Subscriber and Subscriber will pay that amount unless Subscriber can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Subscriber will provide Cloverleaf any information Cloverleaf reasonably requests to determine whether Cloverleaf is obligated to collect Taxes. Cloverleaf is solely responsible for taxes assessable against its income, property, and employees.
10.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has business, technical or financial information relating to Disclosing Party’s business which it has disclosed or may disclose in connection with this Agreement that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”). Cloverleaf’s Confidential Information includes non-public information regarding features, functionality, and performance of the Services, as well as all non-public user-visible aspects of the Services. Subscriber’s Confidential Information includes information provided by Subscriber to Cloverleaf to enable the provision of the Services as well as all Subscriber Data. All pricing and related metrics related to this Agreement is each Cloverleaf’s Confidential Information.
10.2 Non-Use. Receiving Party agrees that it will take reasonable measures to protect the Confidential Information of Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own confidential information of similar character, but never less than a standard of reasonable care. Receiving Party agrees: (i) not to use any Confidential Information of Disclosing Party for any purpose except to perform its obligations or to exercise its rights under this Agreement and (ii) not to disclose any Confidential Information of Receiving Party to third parties or to such party’s employees, officers, agents, contractors or other representatives (“Personnel”), except to those Personnel of Receiving Party who are required to have such Confidential Information in order to perform work in connection with this Agreement and are subject to confidentiality obligations as least as protective as those of this Agreement.
10.3 Exceptions. Disclosing Party agrees that these confidentiality and restricted use obligations will not apply to any information that Receiving Party can document: (a) is or becomes generally available to the public through no action or inaction of the Receiving Party; (b) was in its possession or known by it prior to receipt from Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of or reference to any Confidential Information of Disclosing Party. Nothing in this Section 10 precludes either party from disclosing the other party’s Confidential Information as required by law or a legal process, provided that such party (a) gives the other party prior written notice sufficient to permit the other party to contest the disclosure or seek a protective order (or other confidential treatment) and (b) reasonably cooperates with the other party (at the other party’s expense) in limiting the disclosure. In addition, a party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors and their personnel, attorneys, auditors and investment bankers (solely in connection with the due diligence review of such party and provided that the recipients of the disclosures are subject to confidentiality obligations as least as protective as those of this Agreement), (b) the party’s outside accounting firm, or (c) the party’s outside legal counsel.
10.4 Return of Confidential Information. Promptly following the earlier of (i) the expiration or termination of this Agreement, or (ii) the request of Disclosing Party, Receiving Party will return to Disclosing Party, or, at Disclosing Party’s option, destroy after a reasonable time thereafter all Confidential Information of the Disclosing Party that are in written, electronic or other tangible form, including, without limitation, all copies and derivatives of such Confidential Information. In addition, upon the request of Disclosing Party, Receiving Party will certify to Disclosing Party in writing Receiving Party’s and its Personnel’s compliance with its obligations pursuant to this Section 10. Although Recipient shall return and/or destroy Confidential Information as described above, the parties acknowledge and agree that, due to the nature of computer information storage systems and email communications, even if a file is “deleted”, a shadow or backup copy may remain within Recipient’s computer systems or its backup systems.
10.5 Equitable Remedies. The parties acknowledge that disclosure or use of the other party’s Confidential Information in violation of the Agreement may cause irreparable harm to the Disclosing Party for which monetary damages may be an inadequate remedy and difficult to ascertain. Each party agrees that the Disclosing Party will have the right to seek injunctive or other equitable relief for any violation of the confidentiality provisions of the Agreement by the Receiving Party (without the necessity of posting bond or showing monetary damages), in addition to any other rights and remedies that the Disclosing Party may have.
10.6 Redundancy. Notwithstanding anything to the contrary in this Agreement, Cloverleaf will have no obligation to erase any Confidential Information which has been included in Cloverleaf redundant copies of data but will continue to delete such copies in accordance with its standard record retention policy. If return or destruction is not feasible, Cloverleaf shall inform Subscriber of the reason it is not feasible and shall continue to extend the protections of this Section to such Confidential Information and limit further use and disclosure of such Confidential Information to those purposes that make the return or destruction of such Confidential Information infeasible. To the extent that Cloverleaf is required by law to maintain copies of Confidential Information, Subscriber Data, or records related to disclosure or handling of Confidential Information, Cloverleaf shall be under no obligation to destroy such information. Furthermore, Cloverleaf shall retain such information as Cloverleaf reasonably determines necessary to demonstrate to Subscriber or any regulatory authority Cloverleaf ‘s compliance with this Agreement or any applicable law or regulation. Any Confidential Information not returned or destroyed as permitted by this Section shall continue to be subject to the protections of this Section 10 for so long as it is retained, and the party retaining such Confidential Information shall limit use and disclosure of such Confidential Information to the purposes for which such party did not return or destroy such Confidential Information. At such time as a party’s basis for retaining such information ceases to exist, such party shall return or destroy such information as set forth above.
Licenses and Proprietary Rights.
11.1 Subscriber Data.
11.2 Cloverleaf Software.
Subject to the limitations set forth in this Agreement, including any restrictions specified in the Service Order, Cloverleaf hereby grants Subscriber a non-exclusive, non-transferable, non-sublicenseable license to access and use the Cloverleaf Platform and Documentation for the sole purpose of receiving and using the Modules for Subscriber’s internal business purposes. Access and use of the Cloverleaf Platform shall be web-enabled access only, and nothing herein this Agreement shall entitle Subscriber to the object or source code of the Cloverleaf Platform
Subscriber grants to Cloverleaf worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Subscriber.
Excluding Cloverleaf Products, to the extent that Cloverleaf performs Start-Up Service, Support Services, and/or Professional Services as set forth in the Service Order, Cloverleaf hereby grants Subscriber, during the Term, a worldwide, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Cloverleaf for Subscriber and delivered by Cloverleaf to Subscriber in connection with such Start-Up Service, Support Services, and/or Professional Services (“Deliverables”). Subject to Subscriber’s ownership of its proprietary and Confidential Information disclosed to Cloverleaf under Section 10, Cloverleaf shall retain all ownership rights to the Deliverables. Deliverables that are custom code written by Cloverleaf to facilitate Subscriber’s use of the Services that include any Subscriber Confidential Information shall remain subject to the confidentiality obligations under Section 10 and Subscriber shall retain all ownership rights to its Confidential Information. ALL SUCH CUSTOM CODE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. CLOVERLEAF DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH CUSTOM CODE.
11.5 Proprietary Rights.
The Services, Cloverleaf Software, and the Documentation are the proprietary information of Cloverleaf. Subject to the limited rights expressly granted in the Agreement, Cloverleaf and Cloverleaf’s licensors reserve all right, title, and interest in and to the Services, Cloverleaf Software, and the Documentation, including all related intellectual property rights, as well as all derivative works made by any person or entity in or to the foregoing. No rights are granted to Subscriber except as expressly set forth in the Agreement. No rights are granted to Cloverleaf except as expressly set forth in the Agreement.
The Services may include access to Cloverleaf Software. In such case, such Cloverleaf Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Subscriber is an agency of, or contractor to, the US federal, state, or local government or any other, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Subscriber is a government agency that has a need for rights not granted under the Agreement, it must negotiate with Cloverleaf to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.
The Services, Cloverleaf Software, and the Documentation may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services, Cloverleaf Software and Documentation must be permitted under these laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not enable use of the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
Limitation of Liability.
IN NO EVENT WILL CLOVERLEAF’S AGGREGATE LIABILITY (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
Exclusion of Consequential and Related Damages.
IN NO EVENT WILL CLOVERLEAF HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS, LOST OPPORTUNITIES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES OR A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
16.1 Services Warranty.
Cloverleaf warrants that during the Term that the Services will perform materially in accordance with the applicable Documentation. Without limiting Cloverleaf’s obligations pursuant to Section 3.2, Subscriber’s exclusive remedies for a breach of a warranty in this Section 16.1 shall be Cloverleaf’s obligation to make reasonable efforts to remedy such breach.
16.2 Support and Professional Services Warranty.
Support and Professional Services specified in applicable Service Orders will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. Subscriber’s exclusive remedies for breach of the warranty in this Section 16.2 shall be re-performance of the Support and Professional Services by Cloverleaf.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 16, CLOVERLEAF MAKES NO WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND CLOVERLEAF SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS OR GOVERNMENTAL REGULATIONS. CLOVERLEAF DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLOVERLEAF HEREBY DISCLAIM ANY WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF EXECUTING UPON ANY ADVICE OBTAINED THROUGH SERVICES AND MAKING DECISIONS ON THE BASIS OF THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNLESS EXPRESSLY STATED IN A SERVICE ORDER, CLOVERLEAF DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DELIVERABLES WILL COMPLY WITH THE AMERICANS WITH DISABILITIES ACT (ADA) OR THE WEB CONTENT ACCESSIBILITY GUIDELINES (WCAG) 2.1.
Subscriber will indemnify and defend Cloverleaf against any and all third party claims, demands, suits or proceedings (each a “Claim Against Cloverleaf”) and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, arising out of or in connection with, (i) Subscriber Data, or (ii) Subscriber’s use of the Services in breach of the Agreement, provided Cloverleaf (a) promptly gives Subscriber written notice of the Claim Against Cloverleaf; (b) gives Subscriber sole control of the defense and settlement of the Claim Against Cloverleaf (except that Subscriber may not settle any Claim Against Cloverleaf unless it unconditionally releases Cloverleaf of all liability related to the Claim Against Cloverleaf); and (c) give Subscriber all reasonable assistance in connection with the defense or settlement of such Claim Against Cloverleaf, at Subscriber’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Cloverleaf arises from the Services or Cloverleaf’s breach of the Agreement. Except with respect to a dispute between Subscriber and Cloverleaf, Subscriber will reimburse Cloverleaf for all costs and reasonable attorneys’ fees for responding to third party or governmental requests for information arising out of or in connection with Subscriber Data or Subscriber’s use of the Services. A Claim Against Cloverleaf shall include a claim against Cloverleaf, Cloverleaf’s affiliates, and Cloverleaf’s or its affiliates’ officers, directors, and employees.
19.1 Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) provided, however, either party may assign the Agreement in its entirety, without the other party’s consent (a) to its affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the immediately preceding sentence, if a party is acquired by, sells all or substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may, but is not required to, terminate the Agreement upon written notice. In the event of such a termination by Cloverleaf, Cloverleaf will refund to Subscriber any prepaid but unused fees covering the remainder of the term of all Service Orders after the effective date of such termination.
19.2 The Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the day of sending by email (except that email shall not be sufficient for notices of termination or an indemnifiable claim (“Legal Notice”)). Billing-related notices to Subscriber shall be addressed to the relevant billing contact designated by Subscriber. All other Services related notices to Subscriber shall be addressed to the relevant Services system administrator or other person designated by Subscriber in writing or in the Services’ user interface dashboard. Legal Notices to Cloverleaf should be addressed to firstname.lastname@example.org or Cloverleaf.me.Inc., a Delaware corporation located at 310 Culvert St., Suite 301, Cincinnati, OH 45202.
Governing Law; Dispute Resolution; Arbitration; Class Action Waiver.
21.1 Subscriber’s use of the Services and this Agreement, shall be governed in accordance with the laws of the State of Ohio, without regard to conflict of law provisions (except for those that would permit the adoption and application of Ohio law).
21.2 Any dispute, claim or controversy among the parties arising out of or relating to these this Agreement or the Services (“Dispute”) shall be finally resolved by and through binding arbitration in accordance with the Federal Arbitration Act to the exclusion of any other Federal, state or municipal law of arbitration. Both the foregoing agreement of the parties to arbitrate any and all Disputes, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration, shall be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction.
21.3 For any Dispute, the place of arbitration shall be in Hamilton County, Ohio.
21.4 The cost of the arbitration proceeding, including, without limitation, each party’s attorneys’ fees and costs, shall be borne by the unsuccessful party or, at the discretion of the arbitrators, may be prorated between the parties in such proportion as the arbitrators determine to be equitable and shall be awarded as part of the award.
21.5 RESTRICTIONS ON ARBITRATION: ALL DISPUTES, REGARDLESS OF THE DATE OF ACCRUAL OF SUCH DISPUTE, SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. ANY DISPUTES SUBSCRIBER MAY HAVE AGAINST CLOVERLEAF, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS, SUBSCRIBER HEREBY AGREES TO BIFURCATE AND ARBITRATE AGAINST THEM INDIVIDUALLY IN LOS ANGELES COUNTY, CALIFORNIA. SUBSCRIBER IS WAIVING ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. THE PARTIES AGREE THAT THE ARBITRATORS HAVE NO AUTHORITY TO ORDER CONSOLIDATION OR CLASS ARBITRATION OR TO CONDUCT CLASS-WIDE ARBITRATION PROCEEDINGS, AND ARE ONLY AUTHORIZED TO RESOLVE THE INDIVIDUAL DISPUTES BETWEEN THE PARTIES AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS. FURTHER, SUBSCRIBER WILL NOT HAVE THE RIGHT TO CONSOLIDATION OR JOINDER OF INDIVIDUAL DISPUTES OR ARBITRATIONS, TO HAVE ANY DISPUTE ARBITRATED ON A CLASS ACTION BASIS, OR TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
21.6 THE VALIDITY, EFFECT, AND ENFORCEABILITY OF THE FOREGOING WAIVER OF CLASS ACTION LAWSUIT AND CLASS-WIDE ARBITRATION, IF CHALLENGED, ARE TO BE DETERMINED SOLELY AND EXCLUSIVELY BY THE STATE AND FEDERAL COURTS LOCATED IN HAMILTON COUNTY, OHIO.
21.7 WITHOUT WAIVING THE RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THIS SECTION 21 BE STRICKEN FROM THIS AGREEMENT OR DEEMED OTHERWISE INVALID OR UNENFORCEABLE, THEN THIS ENTIRE SECTION 21 (OTHER THAN THIS SENTENCE) SHALL BE STRICKEN FROM THIS AGREEMENT AND INAPPLICABLE, AND ANY AND ALL DISPUTES SHALL PROCEED IN THE STATE AND FEDERAL COURTS LOCATED IN HAMILTON COUNTY, OHIO AND BE DECIDED BY A JUDGE, SITTING WITHOUT A JURY, ACCORDING TO APPLICABLE COURT RULES AND PROCEDURES, AND NOT AS A CLASS ACTION LAWSUIT.
Subscriber consents to Cloverleaf’s use of Subscriber’s name and logo and general description of Subscriber’s relationship with Cloverleaf in press releases and other marketing materials and appearances. Subscriber further permits Cloverleaf to use it as a reference account for marketing purposes and agrees, from time to time, to support Cloverleaf by participating in reference phone call(s) and other marketing events including with press, analysts, and Cloverleaf’s existing or potential investors or customers upon reasonable request by Cloverleaf.
Except for payment obligations under the Agreement, neither party will be liable for failure to perform or inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control, including, for example, an act of God, natural disaster, act of war or terrorism, riot or civil unrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services.
The parties agree that a material breach of the Agreement adversely affecting Cloverleaf intellectual property rights in Cloverleaf Software may cause irreparable injury to Cloverleaf and/or its licensors for which monetary damages would not be an adequate remedy and Cloverleaf shall be entitled to equitable relief (without a requirement to post a bond or prove actual or monetary damages) in addition to any rights or remedies it may have.
Relationship of the Parties.
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
There are no third-party beneficiaries under the Agreement, AUP, or the Documentation.
Revision Date: April 14, 2023