TERMS OF SERVICE

CLEARVOICE TERMS OF SERVICE

Effective Date: August 25, 2022

This Terms of Service agreement (this “Agreement”) is a legal agreement by and between ClearVoice, Inc., a Delaware corporation, with its principal place of business at 2425 Camelback Rd., Ste. 960, Phoenix, AZ 85016, its affiliates, and each of their respective successors and assigns (the “Company”), and you (the “User”).

This Agreement governs User's use of (i) the services provided by Company or otherwise accessible via www.ClearVoice.com (the "Site") or any other website or IP address designated by Company (the "Platform"). By accessing the Site and/or the Platform, you hereby acknowledge that you have read and understood the terms as described below and that you agree to be bound by these terms. Please note, If you violate these terms, we reserve the right to deny you access to the Site and Platform, together with any and all other legal remedies. If you do not agree to these terms in whole or in part, please refrain from using our Site and/or Platform.

You may only use the Site or the Platform if you are eighteen (18) years old or older, and if you are allowed by law to enter into a binding contract.

This Agreement may be amended by Company at any time by posting changes to Platform, and Customer's continued use of the Platform shall constitute acceptance of the amendments as posted. Capitalized terms not defined within this Agreement shall have the meaning set forth in the Definitions section below.


DEFINITIONS

In addition to definitions provided elsewhere in this Agreement, the following terms have the meaning ascribed to them:

"Affiliate" means any entity directly or indirectly controlling, controlled by or under common control with the subject entity. For purposes of this definition, the terms "controlling", "controlled by" or "under common control with" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the subject entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least 50% of the directors, managers, general partner, or persons exercising similar authority with respect to the subject entity.

"Agreement" means this Agreement, Company's Privacy Policy, and the Order Form, which are incorporated into and made a part of this Agreement.

"ClearVoice Content Request" means a request by Company for Content to be produced by a Creator.

"Confidential Information" means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or a reasonable person would consider confidential under the circumstances. Data is Customer's Confidential Information.

"Content" means any content created, in whole or in part, within the Platform, including Customer Content, Self-Managed Content and Managed Content:

"Content Request" means a ClearVoice Content Request and/or a Customer Content Request.

"Creator" means a Portfolio User or other User whose writing, editing, custom video, and photography services may be retained through the Platform and who is able to service Self-Managed Content and Managed Content in response to a Content Request.

"Customer" means any party that enters into an agreement with Company relating to (i) use of the Platform, (ii) services offered by Creators, or (iii) services offered by Company.

"Customer Content" means content created, developed, commissioned, revised, adapted, owned or licensed separately by Customer on the Platform.

"Customer Content Request" means a request by Customer for Content to be produced through the Platform.

"Customer User" means a User that is employed by Customer or a third party affiliated with Customer.

"Emergency Security Issue" means a User's use of the Platform in a manner which could disrupt (i) the Platform, (ii) other Users' use of the Platform, or (iii) the network or servers of Company or its licensors that are used to provide the Platform; or (iv) unauthorized third party access to the Platform.

"High Risk Activities" means any uses where the failure of the Platform could lead to death, personal injury, or environmental damage, including use in the operation of nuclear facilities, air traffic control, or life support systems

"Intellectual Property Rights" means current and future worldwide rights under patents and patent applications, and all patents issuing from the patent applications, together with any and all divisionals, continuations or continuations-in-part, substitutions, extensions, registrations, confirmations, reissues, re-examinations, and renewals, know-how, inventions, copyrights, trade secrets, trademarks, trade dress, moral rights, other similar proprietary rights and all foreign counterparts of the foregoing.

"Managed Content" means content created for Company on behalf of a Customer by Content Creators.

"Managed Services" means Platform and professional services provided by Company to Customer as defined within an Order Form including, without limitation, "DIFM," "Do-it-for-Me" and Content Projects.

"Order Form" means a document executed between Customer and Company, either online through an order page on the Site or in an offline agreement, setting forth the details of Self-Service or Managed-Services provided by Company to Customer.

"Party" means Company or Customer, and "Parties" means Company and Customer.

"Portfolio" means a web page in the Platform showcasing work samples, bios, education, etc.

"Portfolio User" means anyone having the right to post a Portfolio in the Platform but who is not a Creator or Producer.

"Privacy Policy" means Company's privacy policy posted on the Platform, as updated by Company from time to time, which is incorporated into and made a part of this Agreement.

"Producer" means a Creator who works in conjunction with, and under the supervision and direction of, Company to deliver Content.

"Self-Managed Content" means content created for Customer by Creators.

"Self-Service" means services available to Customer through the Platform as defined within an Order Form including, without limitation, "DIY," "Do-it-Yourself," "Brand" and "Agency Edition."

"Third Party Request" means a request from a third party for records relating to a User's use of the Platform. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order or written consent from Customer or User permitting the disclosure.

"User" means anyone having access credentials to the Platform.


SPECIAL TERMS FOR CREATORS AND PORTFOLIO USERS

1. User Accounts

1.1 Eligibility. The Platform is available only to Portfolio Users and Creators who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Further, each Portfolio User and Creator agrees that it is not a citizen or resident of a country in which use of the Platform is prohibited by law, decree, regulation, treaty or administrative act.

1.2 Account Registration. Each Portfolio User and Creator must register for a personal account (“User Account”) to receive access to the Platform. Each Portfolio User and Creator agrees that it is solely responsible for: (i) providing accurate and complete personal information and updating such information as necessary; (ii) maintaining a secure password; and (iii) all activity that occurs on the User Account. Each Portfolio User and Creator further agrees that it will not: (i) access another Party's User Account without permission; (ii) publish or otherwise disseminate User Account information; or (iii) access (or attempt to access) the Platform by any means other than the interface provided. Each Portfolio User and Creator must immediately notify Company of any unauthorized use of a User Account.

1.3 Identity and Account Verification. Company reserves the right to validate information regarding a Portfolio User or Creator's identity at any time, including but not limited to validation through online calls, social media accounts, and/or against third party databases or other official documents to confirm the Portfolio User's or Creator's identity. Each Portfolio User and Creator hereby authorizes Company, directly or through third parties, to make any inquiries necessary to validate User's identity and confirm such Party's: (i) User Account information including email address and other contact information or identification document; and (ii) financial account information. By using a User Account, each Portfolio User and Creator acknowledges and agrees that Company's security procedures are commercially reasonable.

2. Platform License

2.1 License. Subject to and conditioned on strict compliance with all terms and conditions of this Agreement and the Privacy Policy referenced herein, Company hereby grants each Portfolio User and Creator a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Platform. Each Portfolio User and Creator may access the Platform to offer professional services to Company's Customers. In the case of Creators, this may include (i) writing, developing, or editing Content; (ii) drafting press releases; (iii) photography, designing graphics or other visual works; (iv) creating audiovisual recordings; or (v) generating other Self-Managed Content of Managed Content. Except for the limited rights and licenses granted to Portfolio Users and Creators herein, no other license is granted and no other use is permitted. Company retains all rights, title, and interest (including intellectual property and proprietary rights) in and to the Platform.

2.2 Restrictions. Except as expressly permitted in this Agreement, Portfolio Users and Creators shall not: (i) use any of Company's Confidential Information to create any service, software, documentation or data that is similar to any aspect of the Platform; (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code related to the Platform; (iii) sublicense, transfer, rent, lease, or share the Platform in any manner or for the benefit of any third party; (iv) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify, in any fashion, the Platform; (v) fail to comply with applicable laws and regulations, including but not limited to, insofar as it relates to the conduct of a Party, the General Data Protection Regulation made effective in Europe on May 25, 2018 ("GDPR").; or (vi) permit any third party to engage in any of the foregoing prohibited acts.

2.3 Non-solicitation. Portfolio Users and Creators shall not offer or solicit(or accept any offer or solicitation) to receive payments for work done via the Platform by any means not offered by the Platform. You agree to notify us immediately if any User proposes that you receive payments other than through the Platform.

2.4 Multiple Accounts. To prevent fraud and abuse, Creators and Portfolio Users are limited to one active account on the Platform. Any additional account may be disabled. Mass account creation may result in disabling of all related accounts. Note: any violations of this Agreement is a cause for permanent suspension of all accounts.

3. Portfolio Content

3.1 Portfolio Content Guidelines. Each Portfolio User is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Portfolio Content. Portfolio User shall not, and shall not permit any third party, to (a) take any action or (b) upload, download, post, submit, or otherwise distribute or facilitate distribution of any Portfolio Content that:

  • infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
  • Portfolio User knows is false, misleading, untruthful or inaccurate;
  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent;
  • contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or other equipment or to damage or obtain unauthorized access to any system, data, password or other information;
  • impersonates any person or entity, including any of Company’s employees or representatives; or
  • includes sensitive personal, identification or financial information related to any person or entity.

3.2 Intellectual Property Rights. Portfolio User hereby grants to Company a non-exclusive, irrevocable, worldwide license under Portfolio User's Intellectual Property Rights to use, copy, reproduce, publish, edit, adapt, modify, create derivatives, distribute, make available online, the Portfolio Content in whole or in part, in any medium now known or hereafter invented.

4. Creator Content

4.1 Content Request. Customers and Company may use the Platform to post Content Requests. Content Requests shall dictate and control: (i) the form, length, and substance of the Creator Content; and (ii) the amount of compensation to be paid to the Creator (the "Fee"). Creator may review and apply to fulfill a given Content Request. If selected by a Customer or Company to fulfill a Content Request, Creator shall submit completed Creator Content to Customer or Company for review within the Platform. Any Creator Content that fails to adhere to the terms of this Agreement shall be deemed rejected.

4.2 Acceptance of Creator Content. Customers are required to accept, submit a revision request, or reject Creator Content within fourteen (14) calendar days of receiving Creator Content submitted by Creator or Company. Customers or Company shall retain the sole and exclusive right to reject Creator Content insofar as such Creator Content does not comply with the Content Request or for any other reason, in Customer's or Company's sole discretion. Both Company and Customer may terminate any Content Request at any time prior to Customer's final and unconditional acceptance of the Creator's submission. Customers are prohibited from publishing, distributing or otherwise using Creator Content unless and until such Creator Content has been accepted.

4.3 Compensation. After Customer's acceptance of the Creator Content, Company shall: (i) withhold twenty-five (25%) percent of the Fee paid by the Customer as non-refundable compensation to Company for providing the Platform; and (ii) credit the remaining seventy-five (75%) percent of the Fee to Creator's account within ten (10) business days. Company shall not be responsible or liable for any amounts not received from Customers.

4.4 Intellectual Property Rights (content). Creator hereby assigns to Customer Creator's entire right, title, and interest in and to the Creator Content, and any associated Intellectual Property Rights (as defined below) which Creator may solely or jointly author, contribute to, conceive, reduce to practice, create, derive, develop or make in response to the Content Request. All works of authorship and associated copyrights in the Creator Content will be deemed to be “works made for hire” within the meaning of the U.S. Copyright Act. To the extent any right, title and interest in and to any Creator Content cannot be assigned by Creator to Customer, Creator hereby grants to Customer an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to use, sell, copy, reproduce, publish, edit, adapt, modify, create derivatives, distribute, make available online, in whole or in part, and allow others to engage in any of the foregoing activities, in any medium now known or hereafter invented. Intellectual Property Rights includes, without limitation, all patent rights, copyright rights, trademark rights, moral rights, publicity rights, privacy rights and any other intellectual property rights or similar rights anywhere in the world covering or embodied in or relating to the Creator Content. The applicable Customer shall be the exclusive owner of the Creator Content and the Intellectual Property Rights therein and shall have the exclusive right to secure registration of the Creator Content. No rights in the Creator Content, or in the copyright of the Creator Content, shall be retained by Creator, nor shall there be any reversion of those rights to Creator in the future. The assignment above includes all rights in and to the Creator Content. Creator hereby consents to all uses and revisions to the Creator Content and Intellectual Property Rights therein and hereby waives any moral rights (including, but not limited to any rights or attribution or integrity). Creator shall assist the applicable Customer to further evidence, record and perfect Customer's rights in the Creator Content and any licenses granted hereunder and to perfect, obtain, maintain, enforce and defend any assigned rights.

5. Representations and Warranties

5.1 Conduct of Portfolio Users and Creators. Portfolio Users and Creators shall: (i) conduct themselves in a professional and workmanlike manner; (ii) disclose any potential conflicts of interest to the Customer or Company before accepting a Content Request; (iii) give credit and proper attribution whenever necessary; (iv) always produce original work, never plagiarizing and never repurposing old work for a Content Request; and (v) deliver Creator Content on time and in accordance with the specifications of the Content Request.

5.2 Other Representations and Warranties. Portfolio Users and Creators shall not and shall not permit any third party to (a) take any action or (b) upload, download, post, submit, or otherwise distribute or facilitate distribution of any Creator Content that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty; (ii) such Portfolio User or Creator knows is false, misleading, untruthful or inaccurate; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent; (iv) contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or other equipment or to damage or obtain unauthorized access to any system, data, password or other information; (v) impersonates any person or entity, including any of Customer or Company's employees or representatives; or (vi) includes sensitive personal, identification or financial information related to any person or entity.

5.3 Indemnification. Each Portfolio User and Creator shall defend, indemnify, and hold harmless Company and its Customers and their respective affiliates and each of their respective employees, contractors, directors and representatives from all liabilities, claims, and expenses, including reasonable attorney's fees, that arise from or relate to: (i) such Portfolio User's or Creator's use or misuse of, or access to, the Platform; (ii) any Creator Content submitted by such Portfolio User or Creator; (iii) such Portfolio User's and Creator's violation of this Agreement, including without limitation its or its employees' or authorized users' failure to comply with the requirements of applicable law, including the GDPR, only to the extent the GDPR applies to the conduct of such Portfolio User or Creator or their respective agents; (iv) infringement by such Portfolio User or Creator, or any third party using their User Account or identity in the Platform, of any Intellectual Property Rights or other right of any person or entity. Company and its Customers, as the case may be, reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event such Portfolio User or Creator will assist and cooperate with Company and such Customer in asserting any available defenses.

6. Term and Termination

6.1 Term. The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 6.2 below.

6.2 Termination. Company may terminate Portfolio User's or Creator's access to all or any part of the Platform at any time, for any reason, in Company's sole discretion, with or without notice. Each Portfolio User or Creator may terminate their User Account by following the instructions within the Platform. Any Fee owed to User after termination will be paid in accordance with Section 4.3 of this Agreement.


GENERAL TERMS AND CONDITIONS

Unless otherwise superseded by the Special Terms for Portfolio Users and Creators above, the following terms shall apply to all Users.

1. The Service. We provide brands and agencies with content that helps them rank and convert. Our in-house teams and freelance network of thousands of writers, producers and creators work together to create quality content for a variety of marketing needs.

As a condition to the use of the Site and/or the Platform, you warrant and represent that (i) all of the submissions are and will be true, complete and accurate and in compliance with all of the terms in this Agreement and any applicable laws and regulations; and (ii) you have all necessary right, power and authority to enter into and perform under this Agreement.

All rights in and to the content available on the Site and/or Platform are reserved to the Company or its licensors. To the extent legally permissible, the Site, the Platform and the content available therein are provided on an "AS IS" basis. The Company will not be liable for any damages or loss incurred to Users as a result or in connection with the use of the Site and/or the Platform, and/or the content available therein. Your use of the Site, the Platform and/or the content is at your sole risk.

2. Personal Information. By providing us with personally identifiable information (“Personal Information”), you hereby warrant and represent that: (i) you have the legal right to provide us such Personal Information; (ii) the Personal Information is complete, accurate and up to date. Please note that by using our services you hereby provide your informed consent to the processing of your Personal Information by the Company, all, for the purposes and the terms set forth in our Privacy Policy available at: https://www.clearvoice.com/terms/privacy-policy/ .

4. Feedback Rights. To the extent that you provide the Company with any comments, suggestions or other feedback regarding the Site or the Platform as a whole, as well as other products or services offered by the Company (collectively, the "Feedback"), you will be deemed to have granted the Company an exclusive, royalty-free, fully paid up, perpetual, irrevocable, worldwide ownership rights in the Feedback. The Company is under no obligation to implement any Feedback it may receive from Users.

5. Links to third party Sites. We may provide links within the Site or the Platform that permit Users to leave our Site and/or Platform and enter other sites or services, which are unrelated to the Company. Those linked sites and services are provided solely as a convenience to you. These linked sites and services are not under the control of the Company. The Company is not responsible for the availability of such external sites or services, and does not endorse and is not responsible or liable for the content, privacy policies or practices available from such linked sites and services or any link contained in linked sites or services. Most of such linked sites and services provide legal documents, including terms of use and privacy policy, governing the use thereof. It is advisable to read such documents carefully before using those sites and services. Please note that your access and/or use of any such sites, services and content are at your sole risk.


6. Confidential Information.

6.1 Obligations. Each Party will: (a) hold and keep the other Party's Confidential Information in strict confidence; (b) protect the other Party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (c) not disclose the Confidential Information, except to Affiliates, employees and agents. Each Party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates, employees and agents in violation of this Section 6.

6.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew as evidenced by its written records; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by a third party.

6.3 Required Disclosure. Each Party may disclose the other Party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other Party; (b) gives the other Party the opportunity to challenge the disclosure; and (c) releases only so much of the Confidential Information as required by law and properly requests confidential treatment of that information.

6.4 Third Party Requests. Customer is responsible for responding to Third Party Requests. Company will, unless it is prohibited by law or by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request in a manner permitted by law; (b) comply with Customer's reasonable requests, at Customer's expense, regarding its efforts to oppose a Third Party Request; and (c) provide Customer, at Customer's expense, with the information or tools required for Customer to respond to the Third Party Request.

7. Intellectual Property Rights (Platform).

7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other's content or any of the other Party's Intellectual Property Rights. As between the Parties, Customer owns all Intellectual Property Rights in its Content and Data, and Company and its licensors own all Intellectual Property Rights in the Platform.

7.2 License to Customer. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license in and to Company's Intellectual Property Rights solely to the extent necessary to use the Platform pursuant to this Agreement.

7.3 License to Company. Subject to the terms and conditions of this Agreement, Customer grants Company a royalty-free, worldwide, and revocable license in and to Data and Customer's Intellectual Property Rights solely to the extent necessary for Company to provide Customer with the Platform and to provide and make available in the Platform the Content to Customer.

7.4 Suggestions. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer.

8. Restrictions on Use.

At all times, Customer will comply, and will ensure Users comply with the Privacy Policy. Customer will not, and will ensure Users do not: (a) attempt to gain unauthorized access to the Platform; (b) access the Platform other than through Company's interface; (c) use the Platform in any manner that disables, disrupts, or otherwise interferes with Company's ability to furnish the Platform; (d) engage in High Risk Activities; and (e) use the Platform in any manner that is unlawful or otherwise prohibited by this Agreement; (f) use information related to the Platform for any purpose other than the purpose for which it was made available; (g) engage in any activity that interferes with or disrupts the functioning of the Platform; (h) upload or attach any unknown or malicious file; (i) insert any unknown or malicious external links or any links offering goods or services other than the Platform; or (j) use or provide software (except for general purpose web browsers, email clients, or other software expressly provided or licensed by Company) or services that interact or interoperate with the Platform; (k) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code related to the Platform; (l) sublicense, transfer, rent, lease, or share the Platform in any manner or for the benefit of any third party; (m) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify, in any fashion, the Platform; (n) collect or use, for any purpose and by any means, data from the Platform; (o) permit any third party to engage in any of the foregoing prohibited acts.

9. Misconduct and copyrights agent. We care for your safety. If you believe a User acted inappropriately including (but not limited to) offensive, violent or sexually inappropriate behavior, or that your work has been copied in a way that constitutes copyright infringement, please report immediately to us at safety@clearvoice.com.

10. Availability. The Site's and/or Platform's availability and functionality depends on various factors, for example, communication networks. The Company does not warrant or guarantee that the Site or Platform will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access or error-free, and will not be held liable for any service disruptions, whether temporary or not. We may for any reason, in our sole discretion refuse service or terminate the services at any time, and may immediately suspend or terminate your account (if any) and block any and all current or future access to and use of the Site or the Platform (or any portion thereof), without derogating from any other right or remedy that we may have by law, equity or otherwise. Grounds for such termination may include, but are not limited to, our determination that you violated this Agreement or an infringement of the rights of others or any applicable laws or regulations.

11. Publicity.

Unless Customer notifies Company otherwise in writing, Customer hereby consents to Company's inclusion of Customer's name in a customer list and in press releases and such notification will only apply to materials that are not yet printed or available as of the date of the notification.

12. Representations and Warranties.

Each Party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all applicable laws and regulations applicable to its provision, or use, of the Platform.

13. Disclaimer.

THE PLATFORM IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND SUITABILITY OF CONTENT IS SOLELY WITH CUSTOMER. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, AND WARRANTIES OF QUALITY AND ACCURACY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

14. Voiding of Warranties and Indemnifications.

Any and all warranties and indemnifications will be void as to Platform where the non-compliance is caused by or related to (a) the acts or omissions of Customer personnel or third parties; (b) misuse, theft, vandalism, fire, water or other peril; (c) any impermissible alterations or modifications made to any Platform by Customer, its employees, independent contractors, representatives or agents; or (d) use of the Platform in violation of this Agreement.

15. Indemnification.

15.1 By Customer. Customer shall and hereby does indemnify and agrees to pay, defend, and hold harmless Company and its Affiliates and each of their respective officers, directors, shareholders, employees and independent contractors and their successors and assigns for, from, and against any loss, liability, claim demand, cost, or expense (including attorneys' fees) arising out of or pertaining in any manner to Customer's use of the Platform and the Content, or otherwise arising out of: (a) the relationship between Customer and any of its employees or independent contractors; (b) any Content or Data; (c) Customer Content infringing or misappropriating any Intellectual Property Rights; (d) Customer's or its employees or independent contractors use of the Platform in violation of this Agreement or applicable law, including without limitation its or its employees' or authorized users' failure to comply with the requirements of the GDPR, but only to the extent the (GDPR) applies to the conduct of Customer or its agents; and (e) suspension of any User.

15.2 By Company. Company shall and hereby does indemnify and agrees to pay, defend, and hold harmless Customer, its Affiliates, and their successors and permitted assigns for, from, and against any loss, liability, claim demand, cost, or expense (including attorneys' fees) arising out of or pertaining in any manner to a third party claim that Company's Intellectual Property Rights in and to the Platform infringe or misappropriate any third party Intellectual Property Rights. Notwithstanding the foregoing and in addition to the events stated in Section 13, in no event will Company have any obligations or liability under this Section 14.2 arising from: (a) use of any Platform in a modified form or in combination with materials not furnished by Company, and (b) any Content, information or Data provided by Customer or any User.

15.3 Possible Infringement. If Company reasonably believes the Platform infringes a third party's Intellectual Property Rights, then Company will: (a) obtain the right for Customer, at Company's expense, to continue using the Platform; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Platform so that it no longer infringes. If Company does not believe the foregoing options are commercially reasonable, then Company may Suspend or terminate Customer's use of impacted portions of the Platform. If Company terminates the impacted portions of the Platform, then Company will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the Platform.

15.4 General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party's prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES, RIGHTS AND REMEDIES IN THIS SECTION 14 ARE THE ONLY REMEDIES UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

16. Limitation of Liability.

16.1 Limitation of Liability. Customer acknowledges and agrees that, in light of the many potential tasks for which the Platform may be used and the diverse environments in which the Platform may be used, use of the Platform and the performance and testing of the Platform for any Content remains the sole responsibility and liability of Customer. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR REVENUES, EQUIPMENT DOWN-TIME, LOSS OF DATA, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND OF COMPANY'S LICENSORS.

16.2 Limitation on Amount of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY'S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE LIABILITY.

16.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations or violations of a Party's Intellectual Property Rights by the other Party.

17. Miscellaneous

17.1 No Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.

17.2 Severability. In the event that any provision of this Agreement is deemed unlawful or otherwise unenforceable by any tribunal of competent jurisdiction, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Each and every provision or restriction set forth in this Agreement is independent and severable from the others, and no provision or restriction will be rendered unenforceable by virtue of the fact that, for any reason, any other provision or restriction may be unenforceable in whole or in part.

17.3 Equitable Relief. Nothing in this Agreement will limit either Party's ability to seek equitable relief. Customer acknowledges and agrees that the breach or threatened breach of Sections 6, 7, and 8 will cause immediate and irreparable harm to Company for which monetary damages would be an inadequate remedy and, in the event of such a breach or threatened breach, Company will have, in addition to any other rights it may have, the right to seek equitable relief, including injunctive relief, without an obligation to prove actual damages, post bond or other security.

17.4 Governing Law and Disputes. This Agreement, and any disputes arising out of or related to this Agreement, will be governed exclusively by the laws of the State of Delaware, without regard to conflicts of laws principles or the United Nations Convention on the International Sale of Goods. Except for the rights granted in Section 15.3, any and all disputes of any kind or nature arising out of or related to this Agreement will be decided by arbitration conducted under the commercial arbitration rules of the American Arbitration Association. The arbitration will take place in Phoenix, Arizona. The Parties will act in good faith to select a single arbitrator. If the Parties do not agree on an arbitrator within twenty (20) days of a Party initiating arbitration, then the American Arbitration Association will select the arbitrator. The decision of the arbitrator will be final and binding, and not subject to appeal for any reason. The arbitrator will award attorneys' fees, costs, and all costs and fees of the American Arbitration Association to the prevailing Party in the arbitration as determined by the arbitrator. The arbitration award or other orders can be confirmed and/or enforced through the courts in Maricopa County, Arizona. THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, AND WAIVE ALL OBJECTIONS TO FORUM IN, THE COURTS IN MARICOPA COUNTY, ARIZONA.

17.5 Amendments to the terms. The Company may, at its sole discretion, change these terms from time to time, including any other policies incorporated thereto, so please re-visit this page frequently. In case of any material change, we will make reasonable efforts to post a clear notice on the Site and/or will send you an email (to the extent that you provided us with such email address) regarding such change. Such material changes will take effect five (5) days after such notice was provided on our Site or sent via email, whichever is the earlier. Otherwise, all other changes to these terms are effective as of the stated “Effective date” and your continued use of the Site and the Platform on or after the Effective date will constitute acceptance of, and agreement to be bound by, those changes. In the event that these terms should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.

17.6 Survival. Sections 4.4, 5.3 and 6 through 16 survive the expiration and termination of this Agreement.

17.7 Interpretation of Conflicting Terms. If there is a conflict between the Order Form and this Agreement, the Order Form will control.

18. Contact us. If you have any questions (or comments) concerning these terms, you are most welcome to send us an email to support@clearvoice.com.