Terms and Conditions
V18SEPT2023
THESE TERMS AND CONDITIONS (“TERMS”) EXCLUSIVELY GOVERN THE PURCHASE, LICENSE AND USE OF THE CLEAR DX PLATFORM (“PLATFORM”) EXCEPT TO THE EXTENT SUPERSEDED BY A WRITTEN TERMS SIGNED BY THE PARTIES IS IN EFFECT. CLEAR LABS, INC. (“CLEAR LABS”) MAY UPDATE THESE TERMS FROM TIME TO TIME, USING COMMERCIALLY REASONABLE EFFORTS TO NOTIFY YOU* OF MATERIAL CHANGES, WHICH CHANGES ARE EFFECTIVE IN THE SUBSEQUENT RENEWAL SUBSCRIPTION TERM UNLESS YOU ELECT NOT TO RENEW YOUR SUBSCRIPTION. YOU ACCEPT THESE TERMS AND THE QUOTATION INCLUDING THE LINK TO THESE TERMS REPRESENTING AND WARRANTING TO CLEAR LABS YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THESE TERMS AND BIND THE COMPANY YOU REPRESENT TO THESE TERMS AND THE QUOTATION.
*You are an officer, director, employee or authorized representative of the company purchasing, licensing and using the Clear Dx Platform and referred to in these Terms as “Customer.”
Capitalized terms are defined in Clear Labs’ Quotation unless defined in these Terms.
1. Orders. Customer will issue a purchase order (“Order”) to Clear Labs for the acquisition of the Platform as described in the Quotation. Once accepted by Clear Labs, the Order cannot be cancelled except to the extent expressly permitted by law.
2. Prices. Prices are in U.S. dollars. Prices do not include taxes, duties, insurance, shipping or other fees or charges required for the transportation, installation, use or sale of the Platform (“Taxes and Fees”). Customer will reimburse Clear Labs for all such Taxes and Fees as invoiced unless and to the extent Customer is exempt from paying such Taxes and Fees and provides satisfactory evidence thereof to Clear Labs.
3. Payment. All amounts are due and payable within 30 days of the date of the invoice, without set-off or deduction and are non-refundable. All payments will be remitted to Clear Labs at the address stated in the invoice. Late payments accrue simple interest at the rate of 2% per month or the maximum permitted by law until all outstanding amounts are paid in full. Payment terms may be adjusted based on credit approval or compliance with this provision. Customer will pay all costs of collection of unpaid invoices, including reasonable attorneys’ fees and court costs.
4. Delivery. The Platform, Consumables and Reagent Kits will be shipped: (a) within the U.S., to the FOB Site or as the parties otherwise agree in writing; or (b) internationally, DAP (INCOTERMS 2010) to the Site; and, (c) applicable Taxes and Fees apply. Delivery dates are not guaranteed and supply is subject to applicable lead times and availability. Software will be preinstalled on the Hardware or made available for download. Clear Labs will use commercially reasonable efforts to notify Customer if its requirements will not be satisfied, specifying, if possible, the reasons for the expected delay and its anticipated duration. In no event will Clear Labs be liable or responsible for any damage or penalty for delay in delivery or failure to give notice of delay. Delivery may be in advance of any scheduled delivery date upon reasonable prior notice to Customer. The Platform, Software, Consumables and Reagent Kits are accepted on delivery except Customer will submit all claims for damages, shortages or notice of other irregularities to Clear Labs within 5 business days after delivery; all of which claims will be addressed by Clear Labs or its authorized representatives in accordance with the applicable Clear Dx Services Program (also referred to as “Services”). Customer is required to retain all shipping materials as the Hardware must be shipped in its original packaging. If packaging is lost or damaged, Customer will be charged for the replacement of shipping materials.
5. Site Survey, Preparation and Access. At least 30 days before the scheduled delivery date of Hardware, Customer will complete a site survey and return it to Clear Labs, provide responses to requested information, notify Clear Labs, in writing, of all latent and patent hazards and hazmat on or around the Site and ensure the Site (and access to the Site) is safe for access and installation of the Hardware. Clear Labs and its employees, contractors and suppliers (collectively, “CL Personnel”), are entitled to rely on the accuracy and completeness of the Site Survey and all information Customer submits to CL Personnel and Customer agrees to update such information as appropriate. Customer is responsible for providing, at its own cost, preparations for installation of the Platform, including but not limited to environmental, power and air supply requirements as instructed. Customer grants CL Personnel access to the Site and will provide assistance to plan and complete installation and to perform Services. Installation or on-site Services may be suspended and/or delayed if, in CL Personnel’s reasonable discretion, the Site is not safe or adequately prepared; in which case, Customer is responsible for all fees, costs and expenses resulting therefrom. Once delivered, the Hardware will remain at the Site for the duration of the Term except as Clear Labs may relocate in response to Customer’s request. In addition to allowing access for installation, Customer will permit Clear Labs or CL Personnel access to the Site during business hours to confirm compliance with these Terms or to permit deinstallation on the expiration or earlier termination of these Terms.
6. Passwords. As part of the registration process, Customer and its authorized users (“Users”) will select passwords for use of the Software. Customer is responsible for maintaining the confidentiality of its and its Users’ passwords and complying with all applicable terms of use of the Software including but not limited to those stated in Section 5 and the Terms of Use posted at https://www.clearlabs.com/termsofuse/ and those communicated from time to time by Clear Labs (collectively, “Terms of Use”). Customer agrees that it and its Users will not use or attempt to use another user’s account without authorization. Customer agrees Clear Labs is not responsible or liable to Customer or its Users for the unauthorized use or disclosure of passwords. Customer will notify Clear Labs immediately if it has any reason to believe that the security of its accounts has been compromised. Customer agrees to assist Clear Labs in all investigations, remediation, reporting and notifications Clear Labs deems necessary.
7. Inspection. The Platform is accepted on delivery. Clear Labs will address any material non-conformities of the Platform of which Customer notifies Clear Labs within five (5) days of delivery at the ship-to address on the Order in accordance with the Clear Dx Services Program.
8. Title and Risk of Loss. (a) Clear Dx Platform Instrument & Reagent Terms Purchase Clear Dx. Title to and risk of loss of the Hardware (except leased components for which title does not pass but risk of loss does pass), Consumables and Reagent Kits (excluding intellectual property rights therein) pass to Customer when delivered to the carrier.
(b) Clear Dx Platform Reagent Terms | Reagent Purchase Clear Dx. Title to the Hardware (except leased components for which title does not pass) passes to the Customer once Customer has paid for such items. Risk of loss to such Hardware passes on delivery to the carrier. Title and risk of loss of Consumables and Reagent Kits (excluding intellectual property rights therein) pass to Customer when delivered to the carrier.
(c) Clear Dx™ Platform Instrument & Reagent Terms |Reagent Rental Clear Dx WGS. Clear Labs, its suppliers, lessors and licensors retain title to the Hardware, Consumables and Reagent Kits (excluding intellectual property rights therein) and risk of loss therein pass to Customer when delivered to the carrier.
(d) Applicable to all Terms. Software may be loaded on the Hardware or made available by electronic download. Title to Software and Documentation remain with Clear Labs, its suppliers and licensor at all times. “Documentation” means documents, guides, manuals describing features and functionality of the Platform (“Specifications”) and installation, use, support and maintenance of the Platform excluding marketing and sales collateral. “Software” means Clear Labs proprietary software listed in the Quotation and otherwise provides to Customer in device-based software and cloud based services and application for access and use in conjunction with the Platform including all updates, upgrades, modifications, improvements and derivatives thereof excluding third party software and open source software provided with the Software (collectively, “Third Party Software”). Third Party Software are governed by separate license terms which are available on request and applicable provisions of these Terms.
9. License Grant. During the Term, subject to Customer’s compliance with these Terms and payment of all amounts due, Clear Labs grants Customer a limited, non-exclusive, non-transferable right to: (a) use the Software (and such upgrades, updates and other enhancements provided to Customer)and Third Party Software in object code only in conjunction with the Platform solely for its internal business purposes of performing tests to identify and trace pathogens listed in the applicable Quotation or Order (“Tests”) subject to and in accordance with these Terms, the Documentation and all applicable laws and regulations; (b) use Clear Labs Data (as defined in Section 11); and, (c) using the accompanying Documentation in conjunction with Customer’s authorized use of the Platform. Customer may reproduce only so many copies of the Documentation as reasonably required for use in accordance with these Terms and all such copies will include all proprietary notices or labels. All Software is licensed in object code only. Clear Labs and its suppliers, lessors and licensors reserve all rights not expressly granted to Customer under these Terms.
10. Restrictions. Except as expressly permitted by these Terms or as the parties first agree in writing, Customer will not (and will not allow any third party to): (i) use the Software or Documentation in violation of these Terms or any applicable laws and regulations (including by way of example and not exclusion: USFDA, export, privacy, anti-bribery laws (e.g. FCPA) or for the purposes of unfair or improper competition; (ii) separate the Platform into component parts other than as provided by Clear Labs to Customer; (iii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software (except to the limited extent that applicable law prohibits reverse engineering restrictions); (iv) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, the Software; (v) conduct any benchmarking or comparative study or analysis involving the Software (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Software to interoperate with Customer’s internal computer systems; (vi) disclose to any third party any Benchmarking or any other information related thereto; (vii) use the Software or any Benchmarking in connection with the development of products that compete with the Software; (viii) remove or alter any copyright or proprietary notices or labels on the Software; (ix) copy, reproduce, alter, modify or translate the Software or Documentation; (x) permit access to, or use, the Software in a way that exceeds or attempts to, or circumvents, licensed capacity or use any locked or restricted feature, function, service, or capability without first purchasing the applicable license key or otherwise paying for such use, even if such usage limit, feature, function, service or capability is accessible without a license key; or, (xi) use the Software in any situation where failure or fault of the Software could lead to the death or serious bodily injury of a person, or to physical or environmental damage. Prior to disposing of any media or apparatus containing any part of the Software, Customer will completely remove and destroy the Software contained therein. No rights or licenses are granted other than as expressly and unambiguously set forth herein.
11. Clear Labs Data. Clear Labs, its suppliers, lessors and licensors retain ownership of all data provided to the Customer and Instrument Data and all copies, upgrades, updates and derivatives thereof, all data (excluding Customer Data) along with the results and feedback relating thereto, all know-how and intellectual property rights in appurtenant to the Platform (“Clear Labs Data”).. “Instrument Data” means any data generated by or through use of the Platform including, without limitation, instrument run reports, run parameters, run operating conditions, and any data generated by or available through use of Software pertaining to functioning of Platform.
12. Customer Data. “Customer Data” means all data Customer uses and/or provides to Clear Labs in conjunction with the use of the Platform excluding Clear Labs Data. Customer grants to Clear Labs the perpetual, irrevocable, transferable, assignable right to access and use Customer Data in order to provide services to the Customer and as necessary to monitor and improve the products and services offered by Clear Labs. In order to improve its products and services, certain subsets of the data in a fully anonymized and depersonalized format that cannot be distinguished, identified or attributed to Customer or individual may be used. Customer, not Clear Labs, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data. Clear Labs will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data.
13. Consumables and Reagent Kits. Flow Cells. The Platform is designed to operate only with the Clear Labs Consumables and Reagent Kits listed on the Quotation (and as Clear Labs may update from time to time). All product claims, performance parameters, warranties and licenses are only valid when the Platform is operated with Clear Labs’ Consumables and Reagent Kits. Clear Labs does not accept returns or offer refunds for expired Consumables and Reagent Kits purchased by Customer. Customer return to Clear Labs, using the prepaid packaging provided by Clear Labs, the Flow Cells as soon as reasonably possible, except that Customer will not return contaminated Flow Cells to Clear Labs, and instead will provide Clear Labs proof of legal and appropriate destruction of contaminated Flow Cells. Additionally, Customer will, upon expiration or termination of these Terms, if requested by Clear Labs, return to Clear Labs, using the prepaid packaging provided by Clear Labs, Flow Cells which remain in Customer’s possession or the possession of a third party at the time of such termination (except contaminated Flow Cells). Clear Labs reserves the right to recover from Customer monetary compensation for any Flow Cells not returned or for which proof of legal and appropriate destruction of contaminated Flow Cells have not been provided to Clear Labs.
14. Clear Dx Services Program. Customer will notify Clear Labs promptly of all Defects in the Platform. “Defects” means reproducible errors or failures of the Platform to perform materially in conformity with the Documentation when used in accordance with the Documentation and these Terms. Clear Labs will provide Services in accordance with the Clear Dx Services Program as Customer’s sole remedy and Clear Labs’ sole obligation to address Defects or all warranty claims which may include onsite support for Platform related issues, parts replacement and such maintenance, support or other services as described in the Documentation.
15. Warranties. Customer represents and warrants, and covenants, throughout the Term, to: (a) meet or satisfy standards of all applicable governmental bodies, including, for example, the U.S. Food & Drug Administration (“USFDA”) when using the Platform; (b) obtain and maintain all required regulatory or certification requirements of any governmental body including, for example the USFDA, as Customer is responsible solely to ensure its use of the Platform complies with all applicable legal, regulatory or certification requirements; (c) otherwise to comply with and use the Platform in conformance with all applicable laws and regulations, policies, ordinances and standards pertaining to procurement and use including but not limited to those of U.S. Food & Drug Administration and relating to U.S. Export Regulations, bribery (e.g. Foreign Corrupt Practices Act and any other similar legislation), privacy and data security. Diversion contrary to U.S. law is prohibited; (d) keep the Platform at the Site during the Term, unless Clear Labs first approves, in writing, of any relocation; in which case, the relocation will be done in accordance with Clear Labs’ instructions at Customer’s cost and expense; (e) keep the leased components, Software, Third Party Software and Documentation free from all liens and encumbrances or other adverse claims of title and to provide or execute such documentation to evidence such compliance on request; (g) permit use of the Platform only by its employees or other persons who are trained and familiar with the Platform operation and who have completed training and in accordance with these Terms and the Documentation; (h) notify Clear Labs of the need for Services promptly and permit access to perform Services of the Platform to keep the Platform is in good working condition at all times; (i) notify Clear Labs promptly of any damage or loss to or accidents or spills associated with the Platform; and, (j) permit Clear Labs and its authorized representatives access to the Platform as described below. Customer will indemnify, defend and hold Clear Labs, its licensors, suppliers and authorized representatives, harmless from and against all losses, liabilities and damages including but not limited to reasonable expert and attorneys’ fees and all costs, arising or resulting from Customer’s negligence, breach of these Terms or breach of any applicable law, regulation, order or standard.
16. Limited Warranties. When used in accordance with the Documentation and the Terms, Clear Labs warrants to Customer that: (a) the Hardware will perform materially in according to Specifications for 12 months from delivery; and, (b) the Software will perform materially in accordance the Specifications for 30 days from delivery. Customer’s exclusive remedy for breach of this limited warranty and Clear Labs’ sole obligation is to provide the Clear Dx Services.
17. Disclaimers. By providing the Platform and performing the Services, Clear Labs, its suppliers, lessors and licensors do not become an insurer of Customer’s business.
THE PLATFORM IS LABELED “FOR RESEARCH USE ONLY. NOT FOR USE IN DIAGNOSTIC PROCEDURES.” CUSTOMER ACKNOWLEDGES THAT (A) THE PLATFORM HAS NOT BEEN APPROVED, CLEARED, OR LICENSED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION OR ANY OTHER REGULATORY ENTITY WHETHER FOREIGN OR DOMESTIC FOR ANY SPECIFIC INTENDED USE, WHETHER RESEARCH, COMMERCIAL, DIAGNOSTIC, OR OTHERWISE, AND (B) CUSTOMER MUST ENSURE IT HAS ANY REGULATORY APPROVALS THAT ARE NECESSARY FOR CUSTOMER’S INTENDED USES OF THE PLATFORM.
EXCEPT AS EXPRESSLY STATED AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM (INCLUDING BUT NOT LIMITED TO HARDWARE, SOFTWARE, THIRD PARTY SOFTWARE, DOCUMENTATION, CONSUMABLES AND REAGENT KITS, FLOW CELLS AND DATA) ARE PROVIDED ON AN AS-IS BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO DISCLAIMING EXPRESSLY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OR THOSE ARISING BY LAW, STATUTE, REGULATIONS, STANDARDS, USAGE OF TRADE, OR COURSE OF DEALING. CLEAR LABS, ITS SUPPLIERS, LESSORS AND LICENSORS, DO NOT WARRANT THAT THE OPERATION OF THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, ENTIRELY SECURE OR ERROR FREE. THE CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING IF THE PLATFORM WILL MEET ITS REQUIREMENTS AND FOR USING THE PLATFORM IN ACCORDANCE WITH APPLICABLE LAWS. THIS LIMITED WARRANTY DOES NOT APPLY TO DEFECTS OR NONCONFORMITIES IN THE PLATFORM CAUSED BY: (i) IMPROPER INSTALLATION, USE OR MAINTENANCE; (ii) IMPROPER OPERATING OR STORAGE CONDITIONS INCLUDING OUT-OF SPECIFICATION ENVIRONMENTAL CONDITIONS; (iii) IMPROPER SAMPLE PREPARATION; (iv) IMPROPER LOADING OF REAGENTS; (v) FAILURES CAUSED BY SPILLS, ABUSE, MISUSE, NEGLIGENCE OR IMPROPER OPERATION; (vi) FAILURE TO FOLLOW INSTRUCTIONS; (vi) MODIFICATIONS, SERVICE OR REPAIRS MADE OTHER THAN BY CLEAR LABS, ITS SUPPLIERS, LESSORS OR LICENSORS; (iv) FAILURE TO USE PROPER MICROBIOLOGICAL TECHNIQUES CONSISTENT WITH THE STANDARD OR CARE ACCEPTED IN THE INDUSTRY FOR THE PROPER COLLECTION, STORAGE, HANDLING AND PREPARATION OF THE SAMPLE; (v) FAILURE TO USE CLEAR LABS CONSUMABLES AND REAGENT KITS OR, (vi) FORCE MAJEURE EVENTS SUCH AS ELECTRICAL OUTAGES. Customer assumes all risks and liabilities resulting from is use of the Platform alone or in combination with other products and services. This limited warranty may not be transferred or assigned, by operation of law or otherwise, without Clear Labs’ prior written consent. This warranty disclaimer constitutes an essential part of these Terms.
18. Limitation of Liability. TO THE MAXIMUM PERMITTED BY APPLICABLE LAW, CLEAR LABS, ITS SUPPLIERS, LESSORS AND LICENSORS , ARE NOT LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR (A) LOSS, DAMAGE, CORRUPTION OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (B) DAMAGES RESULTING FROM USE OTHER THAN IN CONFORMANCE WITH THESE TERMS AND ALL APPLICABLE LAWS, REGULATIONS AND STANDARDS; (C) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO LOST REVENUES AND PROFITS, OR OTHER COMMERCIAL OR ECONOMIC; AND (D) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID AND PAYABLE HEREUNDER FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR, IF GREATER, $1,000.00. The foregoing limits apply even if Clear Labs, its suppliers, lessors or licensors have been negligent or informed of the possibility of such damages and/or such damages are foreseeable. Clear Labs, its suppliers, lessors and licensors do not and cannot know all of the potential consequences to Customer’s business of a failure of the Platform to perform as expected or use other than in conformance with these Terms and all applicable laws, regulations and standards. That is why Clear Labs does not agree to be responsible for Customer’s incidental or consequential business losses in the event the Platform fails to perform as expected.
19. Confidentiality. “Confidential Information” means non-public information, in any form or format, marked confidential, identified as Confidential Information at the time of disclosure or the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential or proprietary to the disclosing party. Recipient will use commercially reasonable efforts to maintain the confidentiality of the discloser’s Confidential Information. Recipient agrees to use disclosing party’s Confidential Information only for purposes consistent with these Terms. Recipient will not use the disclosing party’s Confidentiality Information in any manner detrimental to the disclosing party including by way of example and not limitation, recipient will not reverse engineer, disassemble, decompile or design around the disclosing party’s proprietary services, products and/or confidential intellectual property, will notify disclosing party promptly of any unauthorized use or disclosure of Confidential Information and will assist in the investigation, remediation, reporting and notification. Confidential Information may be disclosed and used by recipient’s employees, contractors, professional advisors and third parties having a need to know and who are under a similar obligation of confidentiality. Nothing in this Section 19 will be construed to impose a confidentiality obligation on the recipient as to any information which is: (i) at the time of disclosure already known to the recipient without restriction; (ii) at the time of disclosure or subsequently becomes part of the public domain through no fault, act or omission of the recipient; (iii) subsequently disclosed to the recipient by a third party whose receipt and disclosure of such information does not constitute a violation of any confidentiality obligation; (iv) independently developed by or for the recipient by those having no access to or knowledge of the confidential information received; or (v) required to be disclosed by law or governmental regulation; in which case, except to the extent restricted, the recipient will notify the disclosing party promptly to allow disclosing party to seek to quash or otherwise limit or protect the disclosure of the Confidential Information.
20. Termination. Effect of Termination. (a) Termination. Either party may terminate these Terms by providing written notice of non-renewal to the other party at least 60 days before the expiration of the then-current Term. A party may terminate these Terms: (i) effective 60 days following receipt of written notice if the other party fails to cure a material breach of these Terms as specified in the written notice of breach within the notice period; (ii) if any proceeding is brought by or against a party in bankruptcy or insolvency, or the appointment of a receiver or trustee for a party’s assets, or if a party ceases operations or an assignment for the benefit of creditors is made by a party. Clear Labs may suspend accepting orders from Customer, shipping Products or performing Services in addition to all rights in law or equity until Customer cures its breach.
(b) Effect of Termination. (i) Clear Dx Platform Instrument & Reagent Terms | Purchase Clear Dx. Upon expiration or termination for any reason, Customer will stop using the Software and Documentation and return leased Hardware components in accordance with Clear Labs (or the lessor’s instructions).
(ii) Clear Dx Platform Reagent Terms | Reagent Purchase Clear Dx. Upon expiration or termination for any reason, Customer will stop using the Software and Documentation and return Hardware to which title has not passed to Customer in accordance with Clear Labs (or the lessor’s instructions).
(iii) Clear Dx™ Platform Instrument & Reagent Terms |Reagent Rental Clear Dx WGS. Upon expiration or termination for any reason, Customer will stop using the Software and Documentation and return the Hardware in accordance with Clear Labs (or the lessor’s instructions).
(c) Applicable to All Terms. Within 10 business days of the expiration or termination of these Terms for any reason and as disclosing party instructs, the recipient will return to the disclosing party its Confidential Information or certify that such Confidential Information has been permanently deleted or destroyed except recipient: (i) need not destroy electronic archives and backups made in the ordinary course of business where it would be commercially impracticable to do so (which copies shall be governed by the terms of these Terms); and (ii) may retain a single copy of such Confidential Information for archival purposes subject to Section 19; and (iii) all outstanding amounts become due and payable. Sections 3, 11 through 13, 15 through 21 survive expiration or termination of these Terms for any reason
(d) No Termination Payment. Each party understands that the rights of termination hereunder are absolute. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind (including, without limitation, damage to or loss of goodwill or investment) suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such party (or expiration) that complies with these Terms whether or not such party is aware of any such damage, loss or expenses (but, for clarity, this clause is not intended to limit either party’s obligations to pay amounts properly owed under these Terms).
21. General. (a) Government Use. The Software and any documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or any documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and such documentation are limited and subject to the commercial rights specifically granted in these Terms, as restricted by these Terms. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or documentation. This Section 20(b) does not grant Customer any rights not specifically set forth in these Terms.
(b) Assignment. Customer will not assign or transfer rights or obligations hereunder or the Platform to a third party by operation of law or otherwise without Clear Labs’ prior written consent. Clear Labs may assign or transfer its rights or obligations hereunder to a successor agreeing to be bound to these Terms.
(c) Independent. The relationship of Seller to Buyer under these Terms is intended to be that of independent contractor.
(d) Governing Law. Attorneys’ Fees. These Terms are governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions. The prevailing party in any claim or cause of action arising from or relating to these Terms is entitled to be awarded its costs and reasonable attorneys’ fees.
(e) Cumulative Remedies. Injunctive Relief. Clear Labs has all other rights and remedies provided at law, in equity and under these Terms, and all Clear Labs’ rights and remedies shall be cumulative and none shall be considered Clear Labs’ exclusive remedy. Customer agrees any breach or threatened breach of Section 9, 10 or 19 will cause Clear Labs irreparable damage for which it may have no adequate remedy at law; in which case, Clear Labs is entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
(f) Severance. Waiver. If any provision of these Terms is held to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms otherwise remains in full force and effect and enforceable. The failure of a party to enforce its rights hereunder will not be construed as a waiver of such rights.
(g) Notice. Written notices are effective once delivered to or rejected by a party at its specified address.