SAAS SERVICES AGREEMENT
This SaaS Order Form (“Order Form”) is entered into as of the “Effective Date” by and between Clara, Inc., a Delaware corporation with a place of business at 1718 S. 51st St, PO Box 6105, Omaha, NE 68106 (“Company”), and the customer listed below (“Customer”).
SAAS SERVICES AND SUPPORT
1.1 As part of the registration process, Customer will identify an administrative username and password for Customer’s account on the Services (“Customer Account”). Company reserves the right to refuse Customer’s registration and/or passwords Company deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: 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 Services or to any software (including without limitation, any and all application programming interface(s) made available by Company (collectively, “APIs”) and all underlying code and associated integrations), documentation, and/or data related to the Services (collectively, “Software”); copy, modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Services or Software available to a third party; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity; use the Services or Software for competitive benchmarking against, or development of, any products or services; or remove or alter any proprietary notices or labels from the Services or Software. No rights or licenses in or to the Services or Software are granted except as expressly set forth herein.
2.2 Further, Customer will not, directly or indirectly, remove or export from the United States or allow the export or re-export of the Services or Software or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, rules, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services and the Software are “commercial items” and, according to DFAR section 252.2277014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial computer software or commercial computer software documentation by the U.S. Government will be governed solely by the terms of the Agreement and will be prohibited except to the extent expressly permitted by the terms of the Agreement.
2.3 Customer represents, covenants, and warrants that: (a) Customer will use the Services and Software only in compliance with Company’s standard published policies then in effect and all applicable laws, rules, and regulations; and (b) Customer has, and will maintain throughout the Term (as defined below), all rights required for Company to be able to perform the Services (including, without limitation, by accessing all Customer Systems (as defined below)). Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the Agreement.
2.4 Customer will be responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access, or use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”), (b) providing Customer Data (as defined below) that is needed to enable Company’s provision of the Services and all such other resources as may be reasonably requested by Company from time to time, (c) providing Company’s personnel with access to any and all Customer and third-party systems, networks, databases, computers, service accounts, and/or telecommunications or other information systems to which Company may require access in connection with the provision of the Services (collectively, “Customer Systems”), (d) ensure the Customer Systems are set up and in working order to allow Company to perform the Services, and (e) provide, and ensure that any and all relevant third parties provide, all cooperation and assistance Company reasonably requests to enable Company to exercise its rights and perform its obligations under the Agreement. Customer will also be responsible for maintaining the security of the Equipment, Customer Account and any and all related passwords (including but not limited to administrative and user passwords), and files relating to the Services and/or Software, and for all access to and uses of the Customer Account and/or the Equipment, with or without Customer’s knowledge or consent.
2.5 Company and Customer shall comply with their respective obligations in AI Addendum attached hereto as Exhibit A as they apply to the provision of and use of artificial intelligence in the Services.
CUSTOMER DATA
3.1 Customer represents and warrants that: (a) any and all data, information, and other materials provided or made available (including through the Services) by or on behalf of Customer to Company, including without limitation job postings, demographic information, and candidate information (“Customer Data”) has been, and will be obtained, in accordance with all applicable agreements, privacy policies and notices, and applicable laws, rules, and regulations, including, without limitation, privacy and data protection laws, rules, and regulations; (b) Customer has provided, and will provide throughout the Term, all necessary notices, and Customer has obtained, and will maintain throughout the Term, all licenses, consents, approvals, and any and all other rights and permissions with respect to the Customer Data required (i) to grant to Company the license and rights set forth in the Agreement, and (ii) for Company to perform the Agreement and make the Services available to Customer, in each case of (i) and (ii) without infringing, misappropriating, or otherwise violating any third-party rights, any agreement by which Customer is bound, any privacy policies or notices, or any applicable laws, rules, or regulations; and (c) the Customer Data does not contain and will not contain any viruses, Trojan horses, worms, time bombs, corrupted files, or other harmful or destructive code.
3.2 For each individual who has applied to an open job posting provided by Customer (“Candidate”), Customer will send a notice advising such Candidate that Customer utilizes the Services 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) links to Clara’s terms of service and privacy policy, and (b) a notice that such Candidate may receive an invitation from Clara to participate in Clara’s other service offerings.
3.3 Customer hereby grants, and represents and warrants that it has sufficient rights to grant, to Company a worldwide, non-exclusive, royalty-free, transferable, and sublicensable (through multiple tiers of sublicenses) right and license to access, use, copy, reproduce, store, distribute, transmit, modify, make derivative works of, publicly perform, and publicly display the Customer Data to make the Services available to Customer, to maintain the Services, and to perform any other obligations of Company under the Agreement.
SERVICES ADMINISTRATION
4.1 Customer and Customer’s personnel may provide to Company email addresses and/or telephone numbers as part of the Customer Account creation, registration for use of the Services, use of the Services, or otherwise. By providing such email addresses and/or telephone numbers, Customer consents, on behalf of itself and on behalf of the applicable Customer personnel, to receiving email and/or text messages (as the case may be) from or on behalf of Company at such email addresses and/or telephone numbers.
4.2 Notwithstanding anything to the contrary in the Agreement, Company will have the right to use Customer Data for Company’s business purposes, including, without limitation, to train and improve the Services and other Company offerings, to develop new products or features, and for data analysis, customer research, and identifying usage trends. For example, Company may use content included in the Customer Data, including, without limitation, Indicators of Compromise (“IOCs”), such as links within phishing emails, attachments, and malware, across its customer base for purposes of improving its threat management capabilities for Company’s customers generally.
CONFIDENTIALITY ; PROPRIETARY RIGHTS
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public business, technical, and/or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, without limitation, all non-public information regarding features, functionality, and/or performance of the Services and the Software. The Receiving Party will: (a) take reasonable precautions to protect the Proprietary Information, (b) not use any Proprietary Information except in the exercise of its rights or the performance of its obligations under the Agreement or as otherwise permitted herein, and (c) not divulge any Proprietary Information to any third party other than the Receiving Party’s employees, consultants, contractors, and/or agents who have a need to know such Proprietary Information in order for the Receiving Party to exercise its rights or perform its obligations under the Agreement and are bound by contractual obligations of confidentiality and non-use at least as restrictive as those set forth herein. Notwithstanding anything to the contrary herein, (i) the foregoing will not apply with respect to any information later than five (5) years following the disclosure thereof or to any information that the Receiving Party can document (A) was in its possession or known by it prior to receipt from the Disclosing Party, or (B) was rightfully disclosed to it without restriction by a third party, or (C) was independently developed without use of any Proprietary Information; and (ii) the Receiving Party may disclose Proprietary Information to the limited extent it is required to be disclosed by law, provided that the Receiving Party will first have given written notice to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
5.2 Subject to the licenses and rights expressly granted herein: (a) Customer owns and will retain all right, title, and interest in and to the Customer Data, and (b) Company owns and will retain all right, title, and interest in and to (i) the Services, the Software, and all improvements, enhancements, and/or modifications to the foregoing, and (ii) any and all software, applications, inventions, and/or other technology developed in connection with Implementation Services and/or support.
5.3 To the extent Customer or any Customer personnel submits, orally or in writing, suggestions with respect to, or recommended changes to, the Services or Software, including, without limitation, requests for enhancements, new features, or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Customer hereby assigns to Company, on behalf of itself and on behalf of the applicable Customer personnel (as applicable), all rights, title, and interest in and to the Feedback. Accordingly, Company is free to use, at its option and in its sole discretion, without any obligation of attribution or compensation, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
5.4 Company may monitor Customer’s access to and use of the Services and/or Software and may collect, compile, and analyze data and other information related to the same, including statistical and performance information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and/or Customer Systems and information derived therefrom) (such data and information, collectively, “Usage Data”). As between Company and Customer, all rights, title, and interest in and to the Usage Data will be solely and exclusively owned by Company. To the extent any rights in or to the Usage Data vest in Customer, Customer hereby assigns to Company all rights, title, and interest in and to the same. Accordingly, and without limitation, Company will be free (during and after the Term) to use the Usage Data (in whole or in part) for any lawful purpose, including, without limitation: (a) to make the Services available and maintain them; (b) to train, improve, and enhance the Services and other Company offerings; and (c) for other development, diagnostic, and corrective purposes in connection with the Services and other Company offerings.
PAYMENT OF FEES
6.1 With respect to the Initial Service Term, Customer will pay Company the Total Fees for Initial Service Term set forth in the Order Form. With respect to each Renewal Term (as defined below), Customer will pay Company the Services Fees set forth in the Order Form; provided, however, that Company reserves the right to change the Services Fees and/or to institute new charges and fees applicable to the upcoming Renewal Term by notifying Customer (email sufficient) of such change(s) at least sixty (60) days prior to the commencement of the applicable Renewal Term.
6.2 Company may choose to bill through an invoice, in which case Customer will pay all invoiced amounts within thirty (30) days of the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. The failure to pay invoices in accordance herewith may result in immediate suspension or termination of Services. Customer will be responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income.
TERM AND TERMINATION
7.1 Subject to earlier termination as provided in the Agreement, the Agreement commences on the Effective Date and remains in effect for the Initial Service Term specified in the Order Form, and will be automatically renewed for additional periods of the same duration as the Initial Service Term (each, a “Renewal Term,” and, the Initial Service Term and any and all Renewal Terms, collectively, the “Term”), unless either party requests termination of the Agreement at least thirty (30) days prior to the end of the Initial Service Term or then-current Renewal Term (as applicable).
7.2 In addition to any other remedies it may have, either party may terminate the Agreement, effective upon written notice to the other party, if the other party breaches the Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured for thirty (30) days or more after the non-breaching party provides the breaching party with written notice of such breach. Notwithstanding anything to the contrary in the foregoing, Company may terminate the Agreement immediately upon Customer’s breach of Section 6. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of the Agreement that, by their nature, should survive termination or expiration of the Agreement, will survive such termination or expiration, including, without limitation, Sections 2.3, 3, 4.2, 5, 6, 7.2, 8, 9, 10, and 11.
WARRANTY AND DISCLAIMER
Company will use reasonable efforts, consistent with prevailing industry standards, to maintain the Services in a manner that minimizes errors in, and interruptions to, the Services, and will perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, provided that Company will use reasonable efforts to provide advance notice (e-mail sufficient) of any scheduled service disruption. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, COMPANY DOES NOT WARRANT THAT THE SERVICES OR THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, RELATED TO THE SERVICES, THE IMPLEMENTATION SERVICES, AND/OR THE SOFTWARE, THE USE OR ANY INABILITY TO USE ANY OF THE FOREGOING, THE RESULTS OF ANY USE OF ANY OF THE FOREGOING, AND THE AGREEMENT.
INDEMNIFICATION
9.1 Customer will indemnify, defend, and hold harmless Company and its affiliates, and its and their respective officers, employees, and agents, from and against any and all damages, losses, liabilities, settlements, costs, and expenses (including, without limitation, attorneys’ fees) (collectively, “Losses”) incurred by any of them in connection with any claim or action that arises (a) from an actual or alleged violation of Section 2 or Section 3, (b) in connection with Customer’s access to, and/or use of, the Services and/or Software, or (c) in connection with Customer Data and/or Customer Systems.
9.2 Company will indemnify, defend, and hold harmless Customer and its affiliates, and its and their respective officers, employees, and agents, from and against any and all Losses incurred by any of them that arise from a third-party claim (a) that the Services infringe upon or misappropriate such third party’s intellectual property rights or (b) that alleges Company’s gross negligence or intentional misconduct.
LIMITATION OF LIABILITY
The Services include certain functionality, including generative artificial intelligence (“AI”), that allows Customer to receive analysis of a Candidate. 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. Company employs commercially reasonable measures designed to reduce the risk of AI Hallucinations. Notwithstanding any terms to the contrary in this Agreement, Customer is solely responsible for ensuring, and Company will have no liability related to, the accuracy, quality, or useability of any of the outputs from the Services. Such outputs are not intended to (a) replace or direct Authorized Users’ judgment, or (b) be primarily relied upon by Authorized Users in the course of making decisions regarding the employment of any individual Candidate by Customer. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EXCEPT FOR BREACHES OF CONFIDENTIALITY OR A PARTY’S INDEMNIFICATION OBLIGATIONS, (A) COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. COMPANY’S ENTIRE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL EXCEED THE GREATER OF USD $1,000 AND THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT.
MISCELLANEOUS
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be eliminated or modified to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable or transferable by Customer except with Company’s prior written consent. Company may transfer or assign the Agreement, or any of its rights and obligations under the Agreement, with or without Customer’s consent. The terms and conditions of the Agreement will inure to the benefit of, and be binding upon, the respective permitted successors and assigns of the parties. The Agreement is 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 the Agreement. No amendment to, or modification of, the Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by either party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by an authorized representative of the party so waiving. Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the 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 facsimile or e-mail; the day after the sending thereof, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. ”). This Agreement will in all respects be governed by, and construed in accordance with, the laws of the State of Delaware, without regard for any choice of law or other rules that would cause the laws of any other jurisdiction to apply. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal or state courts located in Wilmington, DE, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless in writing and signed by a duly authorized representative of each party. Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.
EXHIBIT A
AI Addendum
This AI Addendum (“Addendum”) is a part of and subject to the terms and conditions of the Agreement to which it is attached and sets forth additional terms that apply only to the purchase of Services from Clara. In the event of a conflict between this Addendum and the Agreement, this Addendum shall control.
1. DEFINITIONS. The following definitions shall apply to this Addendum. To the extent there is a conflict between the definitions in this Addendum and the definitions in the Agreement or any other exhibit/rider, the definitions in this Addendum shall govern solely with respect to this Addendum. “AI System” means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. “AI Model” means the Clara proprietary matching AI System within the Subscription Services.
2. AI COMPLIANCE. During the Subscription Term, Clara shall develop and provide the artificial intelligence technology within the Services in a responsible manner and will, at its expense, implement and maintain appropriate technical and organizational measures to ensure its artificial intelligence technology used to provide the Services to Customer comply with all applicable laws. In this respect, Clara shall maintain practices and policies for risk and quality management, including having human oversight and in addition, it will do the following during the Subscription Term with regard to the AI Model:
test its AI Model for model bias and model stability prior to integration into the applicable Subscription Services;
supply, upon Customer’s request, the latest model outcome documentation;
conduct an annual independent third-party bias audit of the Subscription Services across its customers that is no less intensive than required by New York City Local Law 144 of 2021 (N.Y.C. Admin. Code §§20- 870), as may be amended and will provide such bias audit report to Customer;
ensure the Subscription Services have the capability to automatically log human decisions made, and that Customer Authorized Users may use human oversight with configurable levels of identity and access management capability;
comply with all applicable laws relating to the AI Model, including, without limitation, applicable obligations of such laws with respect to technical documentation, usage instructions, risk assessments, transparency notices, model monitoring, and recourse to human review of decisions; and
implement change management to maintain compliance with such applicable laws.
3. CUSTOMER OBLIGATIONS. CUSTOMER OBLIGATIONS. Customer acknowledges and agrees that (a) the AI Model and related add-on features (e.g. the AI Interviewer, to the extent acquired and implemented by the Customer) are designed by Clara to be tools for human-centric use, (b) Customer is solely responsible for its own employment decisions, and (c) Customer will train its Authorized Users on the risks of AI over-reliance to ensure appropriate use of the Subscription Services.