Updated: January 1, 2021
You and/or your company or law firm (“Subscriber”) have requested access to the Clearstone FTO online patent review management platform (the “Platform”) provided by ClearstoneIP, Inc. (“Company”). The Platform includes three different service levels: (1) Clearstone FTO Free (“FTO Free”); (2) Clearstone FTO Professional (“FTO Pro”); and (3) Clearstone FTO Team (“FTO Team”). Unless otherwise noted, this agreement applies to all service levels of the Platform. You, and each of your users, agree that the Platform is subject to the following terms of service agreement (“Agreement”):
Term
Agreement Term
The term of your subscription begins on the date you activate your account. Our default subscription term is monthly, however, you can choose a different subscription term at the time of activation. A subscription to FTO Free continues until terminated, while a paid subscription (i.e., for FTO Pro or FTO Team) has a term that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions.
Auto-Renewal
Unless stated otherwise during account registration, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or Subscriber may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Subscriber is responsible for its users, including for any breaches of this Agreement caused by its users. We may terminate the Agreement immediately on notice to Subscriber if we reasonably believe that the Platforms are being used by Subscriber in violation of applicable law.
Termination Without Cause
Subscriber may terminate its free subscriptions immediately without cause. We may also terminate Subscriber’s free subscriptions without cause, but we will provide Subscriber with thirty (30) days prior written notice.
Effect of Termination
Upon any termination for cause by Subscriber, we will refund Subscriber any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Subscriber will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Subscriber of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Fees
No fees will be assessed for users of FTO Free. For users of FTO Pro or FTO Team, fees are specified at the registration interface “check-out” and in the upgrade flow within the Platform — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event Subscriber downgrades any subscriptions from a paid plan to a free plan, Subscriber will remain responsible for any unpaid fees under the paid plan, and services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Subscriber will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
If we don’t receive timely payment, we reserve the right to suspend or terminate your account. in case of non-payment, we will suspend your account, but store your data for a period of 30 days, with a late fee of $10.00 added to your balance. If after 30 days we still have not received payment from you, we will terminate your account and delete all data from the system. Any accrued but unpaid fees will accrue late charges at the rate of 1% of the balance per month, or the maximum rate permitted by law, whichever is lower, and you give us permission to use your payment information to process payment for such accrued and unpaid fees at any time on or after they have accrued.
Additional Users
Each user needs a unique email address and password to use our Platform. Sharing user credentials is not permitted, as it is both a security risk and may result in technical difficulties in providing the service.
No Refunds
We don’t issue refunds or pro-rated credits. If you contract with us for an annual subscription and decide a few months later that you’d like to cancel, we don’t issue a refund relating to prepaid amounts associated with the remainder of any unused term. We also don’t issue refunds or credits because you didn’t use the service over any particular period of time. The policy helps us efficiently plan for and address anticipated server loads, staffing needs, and product improvements.
Service Access and Availability
Subscriber shall be solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Platform, and for paying all third-party access charges incurred while using the Platform. We will use commercially reasonable efforts to make the Platform available 24 hours a day, seven days a week, except for: maintenance carried out during the maintenance window of 9:00 pm to 3.00 am Pacific Time; and unscheduled maintenance, provided that we has used reasonable efforts to give Subscriber at least six hours’ notice in advance.
Your Responsibilities
The person in whose name the account is activated is ultimately responsible for all use of the account, all actions of users, and all the data uploaded to the account. As such, we strongly recommend that you and each of your users follow “good computing” practices, such as: keeping all user IDs and passwords confidential; frequently changing your passwords; using good anti-virus and security software; and keeping multiple copies of important data in secure, remote locations. Your password should be strong, utilizing combinations of upper and lower-case characters, numbers, and special characters, and at least 8 characters long.
Privacy and Subscriber Data
All data entered into the Platform by the Subscriber (“Subscriber Data”), or its agents, is and shall remain the exclusive property of the Subscriber. The Subscriber acknowledges, and agrees, that Subscriber shall remain solely responsible for the accuracy, integrity, reliability, quality, and legality, of Subscriber Data, and we will not be held accountable or liable for any correction, deletion, loss, destruction, or failure to store any such Subscriber Data. All Subscriber Data is considered confidential. We will not share, rent, sell, trade or otherwise disclose any personally identifiable information or Subscriber identifiable information. We will use all reasonable efforts to protect the Subscriber’s data and conduct regular data backups.
Security
Subscriber shall notify us immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each user accessing the Platform by means of an account established by Subscriber) or any other breach of security. We will not be liable for any loss or damage arising from Subscriber’s failure to comply with these requirements.
We will maintain technical and organizational measures designed to secure our systems from unauthorized access, use or disclosure. These measures will include: (i) storing Subscriber Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Subscriber Data from unauthorized disclosure. However, we take no responsibility and assume no liability for any Subscriber Data other than its express security obligations in this Agreement.
Confidentiality and Disclosure
“Confidential Information” means any non-public information that Subscriber provides by means of entry into the Platform. Confidential Information includes, but is not limited to, technical, business, sales or marketing information, customer buying patterns, algorithms, trade secrets, customer and prospect lists, sales plans, inventions, developments, discoveries, intellectual property assets including patent, trade secret and other assets along with legal and technical analyses thereof, software, know-how, methods, techniques, formulae, data, and processes, whether or not protectable under patent, trademark or copyright law and all notes, analyses, and interpretations thereof. Confidential Information includes modifications or derivatives that are based upon or contain Confidential Information, including summaries, reports or analyses of Confidential Information.
We will not use the Confidential Information for any reason other than for usability, support, and development purposes in providing the Platform to Subscriber. We will only access Confidential Information upon explicit authorization by Subscriber on a per-case basis. We will not disclose Confidential Information to any third party other than Company’s representatives who need to know the Confidential Information in order to provide the Platform to Subscriber and are under an obligation of confidentiality. We will protect the Confidential Information by using the same degree of care as we use to prevent the unauthorized disclosure of our own confidential information, but no less than a reasonable degree of care.
We may disclose Confidential Information if required to do so by law or regulation provided that we: (a) give Subscriber prompt written notice before making the disclosure; (b) take reasonable actions and provide reasonable assistance to the Subscriber to secure confidential treatment of the Confidential Information; and (c) disclose only such Confidential Information as is required. Subscriber agrees that we may disclose the fact that the Subscriber is a paying customer. In relation thereto, Subscriber agrees that we may use the Subscriber’s name and logo to identify the Subscriber as a customer ours on our website, and as part of a general list of our customers for use and reference in our promotional and marketing literature.
Proprietary Software and License
Subscriber acknowledges, and agrees, that the Platform uses proprietary software (the “Software”) owned or licensed by Company, and the Subscriber is being granted an individual, limited, non-exclusive, non-transferable license to use the Software subject to the terms and conditions of this Agreement. The Subscriber acknowledges, and agrees, that the Subscriber, its employees and agents, are expressly prohibited, directly or indirectly, from attempting to discover the source code, underlying algorithms, or technology of the Software; renting, leasing, selling, assigning, or transferring rights to the Software; modifying or making derivative works based on the Software; or using the Software in any service bureau or timeshare capacity. The Subscriber acknowledges, and agrees, that Company retains exclusive ownership throughout the world of its Software, including portions or copies, and all rights not expressly granted to the Subscriber are reserved by Company.
We welcome your comments and suggestions, and our design team regularly reviews them. Submitting comments and suggestions is completely voluntary. We don’t provide any compensation or acknowledgement for them, but we value them as important feedback. Upon providing it to us, you grant to us a perpetual, irrevocable, worldwide, royalty-free license to use and incorporate the feedback in any manner relating to the use, improvement, marketing or operation of the application. Please don’t ever send us anything that may infringe upon someone else’s rights or violate any confidences. We don’t want any such information, we would never purposefully accept or use any such information, and assume no responsibility for it.
Use Restrictions
Subscriber agrees to only use the Platform for purposes authorized herein, in compliance with all applicable laws. Subscriber agrees to use the Platform for its own business purposes and may not perform work for any third party as a service bureau. SUBSCRIBER AGREES TO DEFEND, INDEMNIFY AND HOLD COMPANY HARMLESS AGAINST ANY CLAIM OR ACTION THAT ARISES FROM SUBSCRIBER’S USE OF THE SERVICE IN AN UNLAWFUL MANNER OR IN ANY MANNER INCONSISTENT WITH THE RESTRICTIONS AND POLICIES STATED HEREIN.
Relationship of the Parties
Company, in providing the Platform, is acting as an independent contractor and does not undertake by this Agreement or otherwise to perform any regulatory or contractual obligation of the Subscriber. Company has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be performed by Company under this Agreement.
DISCLAIMER OF WARRANTIES
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NONE OF COMPANY, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “COMPANY PARTIES”) GUARANTEES THE TIMELINESS, ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY OF THE PRODUCTS OR SERVICES, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR FREE OR VIRUS FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE AND THE TIMELINESS, USEFULNESS, ACCURACY OR COMPLETENESS OF THE PRODUCTS AND SERVICES IS ASSUMED SOLELY BY SUBSCRIBER. ALL OF THE COMPANY PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL OF THE COMPANY PARTIES DISCLAIM ANY WARRANTIES WITH RESPECT TO ANY RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS WEBSITE, THE PRODUCTS OR SERVICES. THE FUNCTIONALITY AND CONTENT OF THE SERVICE DO NOT REPRESENT LEGAL ADVICE OR ANALYSIS. COMPANY DOES NOT WARRANT THAT USE OF THE SERVICE SATISFIES ANY DUTY UNDER THE LAW. COMPANY DOES NOT WARRANT THAT PATENT INFORMATION PROVIDED THROUGH THE SERVICE IS CORRECT AS A MATTER OF FACT OR LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR COMPANY’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF WARRANTIES PROVIDED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY DIRECTLY OR INDIRECTLY AS A RESULT OF PATENT INFRINGEMENT BY ANY SUBSCRIBER PRODUCT OR PRODUCT-RELATED PROCESS. COMPANY’S TOTAL LIABILITY TO SUBSCRIBER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID. THE LIMITATIONS PROVIDED IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
Ownership
Company is the sole and exclusive owner of the Products and Services, and all Intellectual Property Rights therein. Except for the limited rights granted herein with respect to Subscriber Data, the Subscriber acquires no rights therein.
General Provisions
Successors and Assigns
The Parties agree that this Agreement shall be binding upon each of its successors and assigns and that this Agreement may not be assigned to any other third party, without the written consent of Company, which shall not be unreasonably withheld.
Amendments
No modification, supplement, termination, extension, waiver or amendment to or of this Agreement (or any attachments or exhibits) or any of its provisions may be made, and any attempts, shall not be binding unless agreed to by The Parties in writing, by pen on paper, by duly authorized representatives of the Parties. There shall be no oral agreements. Electronic writings, including E-mail messages, text messages, tweets, instant messages, etc., their contents, and any attachments, and any prior or subsequent communications including oral discussions or negotiations concerning some or all of the Agreement, or anything at all, are not intended to represent and do not reflect an offer or acceptance to enter into (or amend, modify, revise, terminate, abrogate, extend, waive a breach or damages of, etc.) a binding contract, transaction or agreement, and are not intended to and do not bind any party to this Agreement.
Waiver
Any party which is entitled to the benefits of this Agreement may, and has the right to, waive any term or condition hereof at any time on or prior to the time when such term or condition is required to be fulfilled under this Agreement; provided, however, that such waiver shall be evidenced by written instrument duly executed on behalf of such party by a duly authorized agent. The waiver by a party of any term or condition hereof shall not operate as a waiver of that party’s rights under this Agreement in respect of any other term and condition (whether of the same or any other nature). No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity. No agreed waiver by either Party of a provision or breach of this Agreement shall operate or be construed as a subsequent waiver of the same, or waiver of a different, provision, including a waiver of the same but subsequent breach of this Agreement or a waiver of a different such breach.
Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Governing Law
This Agreement shall be governed by and construed in all respects in accordance with the laws of the State of California as they apply to agreements entered into and to be performed by the Parties herein.
Alternative Dispute Resolution
The parties shall attempt to resolve any dispute arising out of or relating to this contract through negotiations between senior executives of the parties, who have authority to settle the same. If the matter is not resolved by negotiation within 30 days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) procedure, or in default of agreement, through an ADR procedure administered by the American Arbitration Association.
Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all other prior and contemporary agreements, understandings, and commitments between the parties regarding the subject matter of this Agreement. This Agreement may not be modified or amended except by a written instrument executed by the parties. In particular, any provisions, terms, or conditions contained in Subscriber’s Purchase Orders or other similar forms that are in any way inconsistent with or in addition to the terms and conditions of this Agreement shall not be binding upon Company.
Severability
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Headings
The headings for sections herein are for convenience only and shall not affect the meaning of the provisions of this Agreement. Such headings shall not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part thereof, nor shall they otherwise be given any legal effect.
Survival
Those sections of this Agreement, that should logically survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement.
Attorneys’ Fees
In the event of litigation or arbitration relating to the subject matter of this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
Authority
Each person signing warrants and represents that he or she has full authority to enter into this Agreement, and that all representations and warranties in this Agreement, are true and correct.
Contacting ClearstoneIP
Please feel free to contact us if you have any questions about ClearstoneIP’s terms of service. You may contact us at support@clearstoneip.com or at our mailing address below:
ClearstoneIP, Inc.
2625 Middlefield Rd, #162
Palo Alto, CA 94306