SUBSCRIPTION AGREEMENT
This Clara Subscription Agreement (this “Agreement”) is made and entered into effective as of the Effective Date set forth in the Order Form (the “Effective Date”), by and between Clara, Inc., a Delaware corporation with its principal place of business at 5021 N. 20th St, #44217, Phoenix, AZ 85064 (“Clara”), and the Customer identified in the Order Form or otherwise entering into this Agreement (“Customer”). This Agreement includes and incorporates the terms set forth in any separate order form referencing this Agreement or on the ordering page of the Clara website, as applicable (the “Order Form”).
DEFINITIONS
1.1 Capitalized terms not otherwise defined in this Agreement will have the meanings set out below.
(a) "Candidate" means an individual that has applied to an open Job Posting and that is subject to Evaluation.
(b) "Claim" means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
(c) "Customer Output" means any Output that includes, derives from, or is based upon Customer Data or Customer’s intellectual property. Output shall be deemed to be generated from, include, have derived from, or be based upon Customer Data or Customer’s intellectual property if such Output results from the processing of, contains, reflects, or would be different in the absence of, Customer Data or Customer’s intellectual property.
(d) "Documentation" means Clara’s then-current user guides and other written documentation for the Platform that Clara provides or otherwise makes available to Customer.
(e) "Evaluation" means the Platform’s analysis of a Candidate based on the information submitted by Customer or the Candidate, expressed as a numerical or other analytical score.
(f) "Feedback" means any suggestion, idea for improvement, recommendation or other feedback in respect of the Platform or any Services.
(g) "Fees" means, collectively, the subscription fees and other amounts payable set out on an Order Form.
(h) “Job Posting” means an advertisement for an employment opportunity with Customer in connection with which Customer is evaluating Candidates.
(i) "Losses" means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default or assessment).
(j) "Party" means each of Clara and Customer, and together they are the “Parties”.
(k) “Output” means the Evaluation of Candidates and any other analytics and reporting generated by the Platform in connection with Customer Data.
(l) "Users" means the end users who are authorized by Customer to access and use the Platform.
THE PLATFORM; LIMITED LICENSE
2.1 Platform. This Agreement governs Customer’s access to and use of the Clara cloud-based artificial intelligence-assisted employment candidate evaluation support platform (the “Platform”) and related services that may be offered from time to time by Clara through the Platform. The Platform and related services will be referred to collectively as the “Services.”
2.2 Pilot Services. During the Term of any Pilot Services, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND. Except as set forth in this Section 2.2 or as otherwise set forth in this Agreement, the Services during the Pilot Term are subject to all other terms and conditions of this Agreement.
2.3 Platform License; API. Subject to the terms of this Agreement, Clara hereby grants to Customer, during the Term or for such other period specified in the applicable Order Form, a limited, non-exclusive, non-transferable and non-sublicensable (except in accordance with Section 12.2) right and license: (a) to access and use the Platform through Customer’s “application tracking system” via the Application Programming Interfaces made available by Clara; and (b) for Users to access and use the Platform, in each case, (a) and (b), in accordance with any applicable Documentation and solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer’s usage of the Platform will be subject to the usage limitations that are set forth on the applicable Order Form.
2.4 AI Terms. The Platform includes certain functionality, including generative artificial intelligence (“AI”), that allows Customer to receive Output. Customer acknowledges and agrees that generative AI sometimes produces output that is unpredictable, random, incorrect or inapplicable (“AI Hallucinations”) and such output may include biases. Clara employs commercially reasonable measures designed to reduce the risk of AI Hallucinations and bias. Notwithstanding the foregoing, Customer is solely responsible for ensuring, and Clara will have no liability related to, the accuracy, quality, or useability of any of the Output.
2.5 Platform Availability; Usage. Clara will use commercially reasonable efforts to provide the Platform to Customer and its Users during the Term. The Platform may include single sign-on functionality (“SSO”) to allow each User to access and use the Platform. Customer will ensure that each User uses only his or her own user credentials or SSO access, as applicable, and does not share such access with any third party. Without limiting the foregoing, Customer is responsible for ensuring that its Users comply with this Agreement and for all access to and use of the Platform by its Users. Customer acknowledges and agrees that access to the Platform by Users may be conditioned upon agreement to additional end-user terms.
2.6 Support Services. Subject to the terms of this Agreement, in connection with Customer’s use of the Platform, Clara will provide Customer with support in accordance with Clara’s standard support practices at the time.
CUSTOMER RESPONSIBILITIES
3.1 Customer Data. Customer will be responsible for the accuracy and completeness of any data or information that Customer or its Users uploads to or provides in the course of using the Services, including information regarding any Candidate (the “Customer Data”).
3.2 Usage Restrictions. As a condition of the rights granted to Customer hereunder, Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any Clara software used in providing the Platform; (b) modify, translate or prepare derivative works of the Platform or any Clara software, documentation or data; (c) use or provide access to the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels from the Platform or any Clara software or documentation; (e) publish or disclose to any third party any evaluation of the Platform; (f) interfere with or disrupt the integrity or performance of the Platform; (g) use the Platform for any other purposes other than as licensed under this Agreement including, without limitation, benchmarking or using the Platform to: (i) create products or services similar to, or competitive with, the Platform; (ii) train any artificial intelligence or machine learning algorithm; or (iii) develop any artificial intelligence model; or (h) permit, authorize or facilitate any of the foregoing.
3.3 Peripherals. Customer, not Clara, is responsible for obtaining, deploying and maintaining any and all computer hardware, software, modems, routers and other communications equipment and services necessary for Customer and its Users to access and use the Services and Platform via the Internet.
3.4 Backups. Customer acknowledges and agrees that while the Platform is designed to retain and make Customer Data and Output available to Customer during the Term, the Platform is not a storage service. Accordingly, Customer, and not Clara, is solely responsible for backing up all Customer Data and any Output. Clara does not warrant that Customer Data, Output or any related materials will be available for any period of time following the end of the Term. Without limiting the foregoing, Clara will use commercially reasonable efforts to retain and make available any Customer Data and Output in its control for at least 30 days following the end of the Term.
3.5 Job Postings. Customer acknowledges and agrees that the functionality of the Platform requires Customer to provide certain information regarding Job Postings including the duration and certain demographic information. Customer agrees to promptly update each Job Posting following any change thereto, including if the employment opportunity has been filled or closed. In the event that Customer does not timely update any Job Posting information, such Job Posting will be deemed to be closed on the date of expiration entered in the Platform.
CANDIDATE INFORMATION
4.1 Candidate Notice. Customer will cause to be sent to each Candidate a notice advising such Candidate that Customer utilizes Clara as a third party processor of such Candidate’s information in connection with evaluating such Candidate’s application to the applicable Job Posting (each, a “Candidate Notice”). Customer will ensure each Candidate Notice includes: (a) a link to Clara’s candidate evaluation questionnaire as provided by Clara to Customer from time to time; (b) a link to each of the Clara terms of service and privacy policy, as made available on Clara’s website; and (c) a notice that such Candidate may receive an invitation from Clara to participate in Clara’s other service offerings.
4.2 Clara Employment Opportunities. Customer acknowledges that Clara operates a network designed to connect employers with job seekers and Customer agrees that Clara may from time to time, in its discretion, share certain Candidate information with other customers of Clara in connection with potential employment opportunities for which such Candidate may be qualified. Except in respect of any Candidates that have registered with Clara other than in connection with this Agreement, Clara will use commercially reasonable efforts to ensure Candidate information is not shared with any other customer of Clara that has an open job posting similar to or competitive with any open Job Posting of Customer.
CONFIDENTIALITY
5.1 Confidential Information. Each Party may from time to time disclose confidential information to the other Party in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise (“Confidential Information”). Customer Data and Customer Output shall be deemed to be the Confidential Information of Customer. The Platform, any Feedback and any information regarding Fees shall each be deemed to be Confidential Information of Clara. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the receiving Party; (b) is received by the receiving Party from a Third Party not subject to any confidentiality obligation in favor of the disclosing Party; or (c) is independently developed by the receiving Party without access or reference to Confidential Information of the disclosing Party.
5.2 Obligations. The receiving Party agrees to safeguard all Confidential Information of the disclosing Party with at least the same degree of care (which in no event shall be less than reasonable care) as the receiving Party uses to protect its own Confidential Information. The receiving Party shall not use any Confidential Information of the disclosing Party for any purpose other than in furtherance of this Agreement and shall not disclose any Confidential Information of the disclosing Party except to those of its employees, consultants or representatives with a “need to know” such Confidential Information for purposes of fulfilling its obligations under this Agreement and who are bound by confidentiality obligations at least as stringent as those set forth herein. The receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative as if made by the receiving Party. The receiving Party shall promptly notify the disclosing Party of any breach of this Section 5.2.
5.3 Permitted Disclosures. Notwithstanding Section 5.2, the receiving Party may disclose Confidential Information of the disclosing Party to the extent that the receiving Party is required or requested to do so pursuant to applicable law by any governmental authority; provided, however, that prior to any such disclosure, the receiving Party shall: (a) assert the confidential nature of the Confidential Information of the disclosing Party to such governmental authority; (b) promptly notify the disclosing Party of the governmental authority’s requirement or request to disclose; and (c) cooperate with the disclosing Party in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the disclosing Party.
5.4 Breach. Notwithstanding any other provision of this Agreement, each Party acknowledges that any use of Confidential Information of the disclosing Party in a manner inconsistent with this Agreement, or Customer’s use of the Platform in breach of this Agreement, may cause the other Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, each Party agrees that, in addition to any other remedy to which the other Party may be entitled hereunder, at law or in equity, the other Party shall be entitled to injunctive relief, without the posting of any bond and without proof of actual damages, to restrain such use in addition to any other applicable remedy available under applicable law.
OWNERSHIP; IP RIGHTS
6.1 Clara Intellectual Property. Clara will own all right, title and interest in and to: (a) the Platform and any Documentation, and all improvements, enhancements or modifications thereto and any intellectual property rights in or related to the foregoing; and (b) all other intellectual property of Clara, including any trade secrets, know-how, software, applications, inventions, methods or other technology of Clara or developed by or for Clara whether or not in connection with the Platform (collectively, (a) and (b), “Clara Intellectual Property”).
6.2 Clara Ownership. Customer acknowledges that (subject to Customer’s ownership of Customer Data and Customer Output), the Services, Clara Intellectual Property and all intellectual property rights therein and thereto are the sole and exclusive property of Clara or its licensors. All inventions, works of authorship or other developments conceived, written or otherwise generated by or for Clara, whether solely or jointly, related to the Platform are the sole property of Clara.
6.3 Customer Ownership.
(a) Customer will own all right, title and interest in and to the Customer Data and Customer Output, except that Customer grants Clara a royalty-free, non-exclusive, perpetual, irrevocable license to:
(i) use Customer Data to provide the Services; and
(ii) to collect and analyze data relating to provision, use and performance of the Services (“Usage Data”) and use such Usage Data to improve the Services, including through the use of automatic or machine learning, and for other development, diagnostic and corrective purposes in connection with the Services and to develop algorithms for use in developing other Clara offerings (“AI Improvements”).
(b) Customer agrees that, in the ordinary course of machine learning development, as part of the AI Improvements, Clara may extract and retain patterns from Customer Data processed in connection with this Agreement which do not identify Customer and do not enable reconstruction of the Customer Data (“Patterns”) and use, copy, prepare derivative works of or otherwise exploit any such Pattern to continue to improve the Platform, or successor product or service, in perpetuity. Any AI Improvement arising from this Agreement shall be the sole and exclusive property of Clara and shall constitute part of Clara’s intellectual property.
6.4 Feedback. If Customer elects to provide Clara with any Feedback, Customer hereby grants to Clara a perpetual, irrevocable, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, non-exclusive license to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, and otherwise exploit any such Feedback.
6.5 No Implied License. Except for the express licenses granted herein, nothing in this Agreement shall or shall be deemed to grant or transfer to Customer any right, title or interest in or to any Clara Intellectual Property. To the extent that: (a) any Customer Output contains, utilizes or is integrated with any Clara Intellectual Property; or (b) the use of any Customer Output, directly or indirectly, by Customer in accordance with this Agreement and any Documentation, would infringe, violate or otherwise misappropriate any Clara Intellectual Property or right thereto, Clara hereby grants to Customer a perpetual, worldwide, royalty-free right and license to use, copy, modify, distribute, perform, display and transmit the such Clara Intellectual Property solely as and to the extent forming part of such Customer Output.
PAYMENT OF FEES
7.1 Fees. Customer will pay Clara the Fees as set forth in the applicable Order Form. Clara may change the Fees for any renewal term by providing Customer notice (which may be sent by email) at least sixty (60) days prior to end of the then-current Renewal Term. Any taxes imposed based on Customer’s use of the Services or payment of the Fees, other than taxes on the income of Clara, will be for the account of Customer. Pricing shall remain fixed for the first two (2) renewal terms. Any pricing adjustments shall only occur in the event of (i) the purchase of additional credits due to usage overages, or (ii) the customer’s election to upgrade to a higher-tier service plan.
7.2 Payment. Except as otherwise set out in an Order Form, the Fees are payable in advance according to their terms, commencing on the Effective Date, provided that Fees for additional Evaluations added during the Term pursuant to an Order Form will be pro-rated to the period from the effective date of the applicable Order Form to the date of the commencement of the next Renewal Term.
7.3. Payment Processor. Clara may use payment processor services to bill and/or facilitate processing of Fees. By submitting payment account information, Customer grants to Clara and its payment processor the right to store and process Customer’s information with the third party payment service, which may change from time to time. Customer agrees that during the Term, Clara may charge and the payment processor may pay to Clara any periodic Fees as they become due. Customer agrees that Clara will not be responsible for any failure of the third party payment processor to adequately protect such information. Any payment processor services will be subject to the payment processor’s separate terms and conditions in addition to this Agreement. In no event will Clara be responsible for any action or omission of any payment processor, including as to whether any payment is sent or received or sent or received to a party other than the intended party. Customer agrees that Clara may change the third party payment service and move Customer’s information to other service providers. Interest will accrue on unpaid amounts at a rate of the lesser of one percent (1%) per month and the maximum rate permitted by applicable law, until such amounts are paid in full. Customer will be responsible for all expenses of collection.
TERM AND TERMINATION
8.1 Term and Renewal. The term of this Agreement is for the Initial Term set forth in the Order Form and, except as otherwise set out on an Order Form, automatically renews for successive periods, each equal in length to the Renewal Term duration set forth in the Order Form (collectively, the “Term”), unless either Party provides notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or then-current Renewal Term.
8.2 Termination. This Agreement may be terminated by either Party if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after notice of such breach, effective as of the date set forth in such notice.
8.3 Irrevocability. Customer’s order for Services as set forth in an Order Form is irrevocable in all respects, subject only to termination in accordance with this Section 8. By executing an Order Form, Customer agrees to pay all Fees set forth therein for the Term. In the event that Customer fails to pay any Fees or other amount payable to Clara hereunder when due, Clara may immediately suspend the provision of Services until Customer has paid all past-due and outstanding amounts in full.
8.4 Effect of Termination. Upon termination of this Agreement, Customer will immediately cease use of the Platform and promptly return or destroy all copies of the Documentation. Each Party will return or destroy any Confidential Information of the other Party promptly upon termination of this Agreement.
8.5 Survival. Accrued obligations, and the following Sections of this Agreement will survive any termination thereof: 1, 2.2, 2.4, 3.2, 3.4, 5, 6, 7, 8, 9, 10, 11 and 12.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
9.1 Customer Data. Customer represents and warrants to and covenants with Clara that Customer has the right to provide Customer Data to Clara for the purposes of this Agreement including having obtained all necessary consents from each Candidate in respect of the processing and use of such Candidate’s information by Clara.
9.2 Reliance on Output. Customer acknowledges and agrees that any use of or reliance on the Services is at Customer’s own risk. Customer acknowledges and agrees, and will cause all Users to acknowledge and agree, that the Platform and Output are not intended to: (a) replace or direct Users’ judgment; or (b) be primarily relied upon by Users in the course of making decisions regarding the employment of any individual Candidate by Customer. Without limiting the foregoing in this Section 9.2, Clara does not guarantee the accuracy or usefulness of any Output or other information generated through use of the Services and will not be responsible for any action that Customer takes or does not take based on any of the foregoing.
9.3 Platform Operation. Clara warrants during the Term that the Services will substantially conform to and operate according to the Documentation when operated in accordance with the same. As Clara’s sole liability to Customer in the event of a breach of the foregoing warranty, Clara will use commercially reasonable efforts to rectify any error or non-conformity with the Documentation in the Services such that the Services materially conform to the specifications set forth in the Documentation.
9.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES, AND ANY RESULTS THEREFROM ARE PROVIDED “AS IS” AND CLARA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. CLARA DOES NOT WARRANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR FREE OR WILL INTEGRATE WITH SYSTEMS OF CUSTOMER OR ANY THIRD PARTY.
INDEMNIFICATION
10.1 Indemnification by Customer. Subject to Section 10.4, Customer hereby agrees indemnify Clara and its principals, partners, members, managers, trustees, beneficiaries, directors, officers, employees stockholders, representatives, and the successors and assigns of each of the foregoing (each, a “Clara Indemnified Party”) from, and defend and hold the Clara Indemnified Parties harmless from and against, any Losses suffered, incurred or sustained by any of them directly or indirectly arising from or in connection with third party Claims to the extent such claims arise from or are alleged to have arisen: (a) any failure by Customer to comply with any applicable laws; (b) any violation of privacy rights of any third party, whether by or on behalf of Customer; (c) any gross negligence or intentional misconduct of Customer; (d) the inaccuracy, untruthfulness or breach of the representations, warranties and covenants set forth in Section 9.1; (e) any decision made by Customer or any User in respect of the employment or potential employment by Customer of any Candidate; or (f) any modification or alteration of any part of the Services not created by or on behalf of Clara with Clara’s prior written consent.
10.2 Indemnification by Clara. Subject to Sections 10.3 and 10.4, Clara hereby agrees indemnify Customer and its principals, partners, members, managers, trustees, beneficiaries, directors, officers, employees stockholders, representatives, and the successors and assigns of each of the foregoing (each, a “Customer Indemnified Party”) from, and defend and hold the Customer Indemnified Parties harmless from and against any Losses suffered, incurred or sustained by any of them directly or indirectly arising from or in connection with third party Claims to the extent such claims arise from or are alleged to have arisen from: (a) the gross negligence or intentional misconduct of Clara; or (b) the Platform infringing a United States patent, copyright, trademark or trade secret of such third party. If Customer’s use of the Platform is, or in Clara’s opinion is likely to be, found to infringe, Clara may, in its sole discretion: (i) modify the infringing element of the Platform to be non-infringing without materially degrading the functionality of the Platform; (ii) procure for Customer the right to continue using the Platform; or (iii) terminate this Agreement and refund to Customer the pro rata portion of any prepaid Fees associated with the Platform for any unused portion of the Term. THIS SECTION 10.2 SETS FORTH CLARA’S SOLE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE PLATFORM OR SERVICE.
10.3 Indemnification Exceptions. The defense and indemnification obligations of Clara will not apply to the extent the alleged infringement arises out of: (a) use of the Services by a Customer Indemnified Party in combination with products or software not provided by Clara; (b) any modification or alteration of the Services not created by or on behalf of Clara with Clara’s prior written consent; or (c) any matter indemnified by Customer in Section 10.1.
10.4 Indemnification Conditions. As a condition to the Parties’ indemnity obligations hereunder, the indemnified Party shall: (a) provide prompt notice of any indemnifiable Claim; (b) tender the defense of such Claim to the indemnifying Party at the indemnifying Party’s request; (c) cooperate with the indemnifying Party in the defense of such Claim at the indemnifying Party’s expense; and (d) not settle or compromise any such Claim without the consent of the indemnifying Party. Customer will immediately inform Clara as soon as Customer becomes aware of any threatened or actual Claim by any third party relating to the Platform or Services. The indemnifying Party shall pay all Losses incurred by the indemnified Party in connection with any such Claim.
LIMITATION OF LIABILITY
11.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLARA AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF PROFITS OR BUSINESS; (B) FOR ANY EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, MULTIPLE, PUNITIVE OR OTHER INDIRECT DAMAGES; (C) FOR ANY MATTER BEYOND CLARA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CUSTOMER TO CLARA FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS THAT GAVE RISE TO THE MOST RECENT CLAIM, IN EACH CASE, WHETHER OR NOT CLARA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MISCELLANEOUS
12.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.2 No. Assignment. Customer is not permitted to transfer or assign, by operation of law or otherwise, any of its rights or obligations under this Agreement without the prior consent of Clara, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without Clara’s consent will be void and of no force and effect.
12.3 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Any modification or other amendment of this Agreement must be in writing and signed by both Parties, and any waiver of this Agreement must be in writing and signed by the Party granting such waiver, except as otherwise provided herein.
12.4 Relationship of the Parties. Each Party will act as an independent contractor and employees of one Party will not be considered to be employees of the other Party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither Party may make any commitments binding on the other Party, nor may either Party make any representation that they are acting for, or on behalf of, the other Party.
12.5 Notices. Any communication, demand, approval, consent or other notice from one party to the other party required to be given under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.6 Governing Law; Venue. This Agreement will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Each Party consents to the exclusive jurisdiction of federal or state courts located in Delaware to resolve any dispute hereunder.
12.7 Publicity. Clara is happy to have Customer as a valued customer. Customer hereby grants to Clara a worldwide, non-exclusive, royalty-free, non-transferable license to use Customer’s trademarks, service marks or logos for the purpose of identifying Customer as a Clara customer in order to promote the Platform. If Customer prefers that Clara not use Customer’s name or logo in a particular way, please contact [clara-admin@getclara.io] and Clara will respect Customer’s wishes. Except as set forth in this Section 12.7, neither Party will use the name of the other Party in publicity releases or similar activity without the consent of the other Party.
12.8 Interpretation. Except where the context expressly requires otherwise: (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, including each Order Form that references this Agreement; and (e) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or.”
12.9 No Third Party Beneficiaries. This Agreement is not intended to, and does not, create a right or cause of action in any person or entity other than the Parties.