Terms Of Service

Last Updated August 24, 2020.

IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE SERVICES PROVIDED BY CLEARPATH ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.

These User Terms of Service (the “Terms”) create a legal agreement between you (a “User”) and Clearpath EPM / EPM Strategies LLC, and Clearpath Alerts, LLC (“Clearpath,” “we,” “our”). These Terms govern your use of the services, software and websites (together, the “Services”) provided by Clearpath. By accessing or using the Services, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms, our Acceptable Use Policy, and our Privacy & Data Protection Policy. If you do not agree to these Terms, then you have no right to access or use the Services. Organizations or other third parties that have paid for a subscription to Clearpath for use by their team (“Customers”) must separately agree to our Master Subscription Agreement or enter into a written agreement with us (in either case, “Subscriber Agreement”). That Subscriber Agreement permits Customers to create and configure teams and invite others (“End Users”) to join. If you have been invited to a team created by a Customer, you acknowledge and agree that the Customer owns all content that you submit or upload to the Services and controls your use of the Services in accordance with applicable local laws, including but not limited to adding or removing you from a team, enabling or disabling third-party integrations, managing permissions, and accessing, modifying, or removing content that you submit or upload to the Services. We may, from time to time, modify these Terms. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.

1. ELIGIBILITY AND SCOPE

1.1 Eligibility. To use the Services you must be, and represent and warrant that you are competent to agree to these Terms. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). If Clearpath has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.

1.2 Use Outside the United States of America. The Services are controlled and operated by Clearpath from its offices in the United States of America. Clearpath makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other locations do so at their own risk and are responsible for compliance with local law.

2. ACCOUNT REGISTRATION AND USE

2.1 Account Registration and Confidentiality. To access the Services, you must register for a Clearpath account by providing an email address and creating a password, and providing us with other information that we request. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your user name and password. We may assume that any communications we receive under your account have been made by you.

2.2 Unauthorized Account Use. You are responsible for notifying us at [email protected] if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Clearpath will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Clearpath or a third party due to someone else using your account.

3. OUR PROPRIETARY RIGHTS

The Services are owned and operated by Clearpath and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by Clearpath and its partners, as well as other sources, and is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions that may be contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Clearpath and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Clearpath and such others. You agree to protect the proprietary rights of Clearpath and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Clearpath or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Clearpath immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and Clearpath, at all times be and remain the sole and exclusive property of Clearpath. Any unauthorized use of any material contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.

4. USER CONTENT AND SUBMISSIONS

4.1 User Content and Submissions. The Services allow you to submit associated information, text, files, and other materials (collectively, “User Content”) and to share that User Content with others. User Content submitted or otherwise made available (“submitted”) to the Services is subject to the following terms:

4.1.1 End User Content. Content submitted to the Services by End Users of Customer accounts (“End User Content”) is owned and controlled by the Customer as set forth in the introduction to these Terms and the Subscriber Agreement. Clearpath maintains a limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display End User Content for the limited purposes of (i) providing the Services and associated Customer and End User support; (ii) displaying the End User Content to the Customer and other End Users; and (iii) analyzing and improving the Services.

4.2 User Content Representations. You acknowledge and agree that you have all required rights to submit User Content without violation of any third-party rights. You understand that Clearpath does not control, and is not responsible for, User Content, and that by using the Services, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Clearpath for all claims resulting from User Content you post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

5. LICENSE AND ACCEPTABLE USE

5.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services only for your own internal, personal, or non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Services, including the Clearpath Privacy Policy, these Terms, and if applicable, the Subscriber Agreement. Clearpath may revoke this license at any time, in its sole discretion. Upon any such revocation, you must promptly destroy all materials downloaded or otherwise obtained from the Services, as well as all copies of such materials, whether made in accordance with these Terms or otherwise.

5.2 Acceptable Use. Your use of Clearpath services must comply at all times with our Acceptable Use Policy.

5.3 Violations. In addition to any other remedies that may be available to us, Clearpath reserves the right to immediately suspend or terminate your account or your access to the Services upon notice and without liability for Clearpath should you fail to abide by the terms of this Section 5. If you are an End User, Clearpath reserves the right to notify the Customer account owner of any violations of this Section 5, and the Customer retains the right to terminate your access to the Customer’s account for any reason.

6. LEGAL COMPLIANCE

You acknowledge, consent, and agree that Clearpath may access, preserve, and disclose your information and/or any User Content you submit to the Services if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by Clearpath’s Privacy & Data Protection Policy or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process; (2) to enforce these Terms, our Privacy & Data Protection Policy, or other contracts with you, including investigation of potential violations thereof; (3) to respond to claims that any content violates the rights of third parties; (4) to respond to your requests for customer service; and/or (5) to protect the rights, property, or personal safety of Clearpath, its agents and affiliates, its users, and the public. This includes exchanging information with other companies and organizations for fraud protection, and spam/malware prevention, and similar purposes.

7. PRIVACY

For information about how we collect, use, and share the data we collect from and about you, please see our Privacy & Data Protection Policy which is incorporated by reference into these Terms.

8. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY

THE SERVICES AND ITS CONTENTS, WHETHER PROVIDED BY CLEARPATH, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, CLEARPATH DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT, AND THE DURESS, PICTURE AND VIDEO CAPTURE FUNCTIONS) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL CLEARPATH OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT CLEARPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100. CLEARPATH DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICES, AND CLEARPATH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. CLEARPATH WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.

9. EXCLUSIONS AND LIMITATIONS

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 8. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 8 specifically do apply to you.

10. INDEMNITY

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD CLEARPATH AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES, YOUR CONNECTION TO THE SERVICES, YOUR VIOLATION OF THE TERMS OR CLEARPATH PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF USER CONTENT TO THE SERVICES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

11. THIRD-PARTY LINKS AND SERVICES

The Services may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. Clearpath is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Clearpath shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.

12. MODIFICATION AND TERMINATION

12.1 Modification of Services. Clearpath reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that Clearpath shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.

12.2 Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at Clearpath’s sole discretion, the deletion of your account and/or User Content.

13. MANDATORY ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

13.1 Application. You and Clearpath agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 13 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

13.2. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at [email protected] and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Clearpath, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

13.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 13.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of Clearpath shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules. The AAA rules will govern payment of all arbitration fees.

13.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

13.5 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration (“Demand”) that (i) briefly explains the dispute, (ii) lists your and Clearpath’s names and addresses, (iii) specify the amount of money in dispute, if applicable, (iv) identify the requested location for a hearing if an in-person hearing is requested, and (v) state what you want in the dispute; (b) Send one copy of the Demand to the AAA, along with a copy of these Terms and the filing fee required by the AAA; and (c) Send one copy of the Demand for Arbitration to us at [email protected].

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Broward County, Florida, United States, and you and Clearpath agree to submit to the personal jurisdiction of any federal or state court in Broward County, Florida, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

13.6 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CLEARPATH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

13.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in Broward County, Florida for disputes or claims within the scope of that court’s jurisdiction.

13.8 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Site or within 30 days of changes to this section being announced on the Site. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Clearpath also will not be bound by them.

13.9 Changes to This Section. Clearpath will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.

13.10 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.

14. CONTROLLING LAW AND SEVERABILITY

These Terms shall be construed in accordance with and governed by the laws of Florida notwithstanding its conflicts of law principles. Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of Broward County, Florida, and you and Clearpath consent to the exclusive jurisdiction of such courts.

15. GENERAL TERMS

15.1 Force Majeure. Under no circumstances shall Clearpath or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.

15.2 No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of Clearpath to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.

15.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.

15.4 Statute of Limitations. Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

15.5 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Clearpath and govern your use of the Services, and supersede any prior agreements between you and Clearpath on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Clearpath without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Clearpath. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.

15.6 Notices. We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) 1126 S Federal Highway Suite 508, Fort Lauderdale, FL 33316; or (2) [email protected].

16. QUESTIONS

If you have any questions about these Terms, please contact us at [email protected].

Privacy and Data Protection Policy

Last Updated August 24, 2020.

Please do not use our applications if you do not agree to the terms of this Policy. By using this Policy, you are agreeing to the terms below.

• Protection and security of Personal Data are important. Personal Data supplied online by any Consumer will be collected, secured, processed and used fairly and in accordance with applicable law.
• When collecting any Personal Data from a Consumer online, we will provide the Consumer with a reasonable notice of the purposes for collecting and using said Personal Data. The notice will explain to the Consumer:
  • the specific types of Personal Data collected and how the Personal Data will be used, including any potential third-party use;
  • that the Consumer has the option of not providing the requested Personal Data and the consequences of not providing it;
  • the steps taken by the Company to protect the quality and integrity of the Personal Data as well as the confidentiality of said Personal Data from unauthorized access;
  • the method by which the Consumer can correct or update the Consumer’s Personal Data.
• In the event that the Company places a “cookie” on the computer of a Consumer, the Company will disclose the fact that the Company is using a cookie. Consumer will be provided with an opportunity to opt out of the collection and use of such Personal Data.
• If any Consumer voluntarily submits the Consumer’s Personal Data to the Company, the Consumer will be deemed to have consented to the use of Personal Data to fulfill any transaction agreed to by the Consumer and to any other uses and purposes disclosed in Company’s notices.
• If Company wishes to use a Consumer’s Personal Data for a new purpose not disclosed in Company’s notices, Company will provide the Consumer with a reasonable notice and opportunity to opt out of the new use and any related disclosure.
• In the event of transferring Personal Data to a third party for processing on behalf of the Company, Company will ascertain the adequacy of the Personal Data protection practices of the third party.
• Company will use Personal Data, including sensitive Personal Data, supplied by a Consumer only for the purposes disclosed to the Consumer, unless a use of the Personal Data for any additional use is required by law, is necessary to preserve a legal claim or defense, or is necessary to prevent fraud or other illegal activities.
• These guidelines do not apply to the collection of Personal Data from any publicly available sources.
• Company may gather and analyze certain data (such as the Internet browser and operating system used, the domain name of an originating website, the number of visits, average time of visit, and accessed websites) which do not identify any specific Consumer and thus are not any Personal Data. Company and its affiliates may use these data for purposes such as improving performance, etc.  However, if this type of data is later combined with other available data and identifies a Consumer, and falls within the definition of Personal Data, Company will treat it in accordance with these Guidelines.
• Company will take reasonable measures to protect Personal Data collected from a Consumer against loss, manipulation, falsification, unauthorized access or unauthorized disclosure by any party inside or outside the Company.
• Company will adopt procedures to respond to reasonable Consumer requests for updating or correcting inaccurate information.
• Company’s services may contain links to other websites. Subject to applicable law, Company is not responsible for the content of, or, the Personal Data protection policies or practices on such other websites.

Subscriber Terms

Last Updated August 24, 2020.

1. This Subscriber Agreement

(the “Subscriber Agreement”) is between Clearpath EPM / EPM Strategies and Clearpath Alerts, LLC (“Clearpath”) and the entity accepting to these terms (“Customer”). This Subscriber Agreement controls Customer’s access to Clearpath’s services (the “Service”) and its associated applications and website. By clicking “I Agree,” or using the Service as a subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is accepting this Subscriber Agreement on behalf of an entity such entity shall be deemed the Customer hereunder and such individual hereby represents and warrants that he/she has the power and authority required to bind such entity to this Subscriber Agreement. IF CUSTOMERS REGISTER FOR A FREE TRIAL OR ARE OTHERWISE GIVEN EVALUATION ACCESS OF CLEARPATH’S SERVICES, THIS AGREEMENT WILL ALSO APPLY.

CUSTOMER ACKNOWLEDGE THAT CLEARPATH’S SERVICES ARE GENERIC AND LIMITED, DESIGNED TO ONLY ASSIST CUSTOMER IN THE PREPARATION AND MANAGING OF CUSTOMER’S OWN EMERGENCY PLANNING AND COMMUNICATION PROCESS, AND THAT CLEARPATH’S SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR CUSTOMER’S ACTUAL DETAILED, CUSTOMIZED OR COMPREHENSIVE EMERGENCY PLANS AND TRAINING.  THE FOREGOING SHALL SPECIFICALLY INCLUDE, BUT NOT BE LIMITED TO, THE DURESS AND VIDEO/PICTURE CAPTURE FUNCTIONALITY. 

Provision of Limited Services and Content. As a part of the Services and Content, Customer will receive potentially helpful and useful emergency planning and preparation ideas and concepts. Customer may also receive access to the EPM Dashboard, which is web-based emergency planning management tool, which has been designed to allow Customer to conduct a self-guided and thought-provoking emergency planning exploration for Customer’s organization, as well as central place to more easily and usefully store, track and update a variety of Customer’s customized planning information. While Clearpath strives to assist Customer in emergency planning and preparation, Customer acknowledge that Clearpath Services and Content are general and generic in nature, limited in scope, and can in no way be considered a replacement for a comprehensive or detailed crisis or emergency plan or implementation.  No matter which of Clearpath’s subscription packages Customer selects, Clearpath strongly recommend that Customer independently engage qualified law enforcement or security experts who are familiar with Customer’s locale and circumstances to assist Customer with customized emergency plan development and training. Clearpath cautions to that Services are strictly preparatory in nature, and in no way are they intended to be used during an actual ongoing crisis situation, incident, or emergency.  Furthermore, Customer understands that Customer alone (and not Clearpath) is solely responsible for the creation of Customer’s emergency planning.

2. The Service and Associated Software.

Customer and users of the Service under Customer’s account (“End Users”) may access and use the Services in accordance with this Subscriber Agreement and Clearpath’s User Terms of Use, a current copy of which can be found at http://clearpathalerts.com, and Privacy & Data Protection Policy, a current copy of which can be found at http://clearpathalerts.com/. Clearpath may update or modify the Services from time to time. If, in Clearpath’s reasonable judgment, any such modification to the Service materially reduces the Service’s functionality, Clearpath will inform Customer via the email address associated with Customer’s account no less than twenty (20) days prior to such change. Clearpath will use technical and enterprise security measures to protect the integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or processing of such Customer Data. For purposes of this Subscriber Agreement, “Customer Data” shall mean the structured data and any files or attachments submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer and its End Users. Clearpath will take steps to protect the Service from any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service. If Customer has engaged a third-party purchasing agent to purchase Services on its behalf, such purchasing agent is not the Customer, and Customer agrees that Customer is still solely responsible for compliance with this Subscriber Agreement.

3. Customer Obligations.

a. Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users in accordance with applicable local laws. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscriber Agreement. Clearpath shall not be held liable for any actions on the part of Customer’s Administrator(s).

b. End User Conduct; Compliance. Customer is responsible for use of the Service by its End Users and for their compliance with Clearpath’s User Terms of Use. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use, and disclose the content posted by the End Users on the Service; and (ii) to allow Clearpath to provide the Administrator with access to such End User content. The Service is not authorized for use by persons under the age of 13 and Customer will ensure that it does not allow any person under 13 to use the Service. Customer will promptly notify Clearpath if it becomes aware of any unauthorized access to Customer’s account or the Service.

c. Restrictions. Customer will not: (i) rent, sell, resell or lease the Service to any third party; (ii) use the Service for any purpose where either the use or the failure of the Service might lead to personal injury, death or physical damage; or (ii) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.

d. Suspension. Clearpath may request that Customer suspend the account of any End User who: (i) violates the User Terms of Use or (ii) is using the Service in a manner that Clearpath reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for Clearpath. If Customer fails to promptly suspend or terminate such End User’s account, Clearpath reserves the right to do so.

e. Customer’s Use of Third Party Services. Clearpath does not warrant or support any third party service (e.g., a service that utilizes the Clearpath API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.

4. Intellectual Property Rights.

a. Limited License to Use Customer Content. Customer hereby grants to Clearpath a limited, nonexclusive and nontransferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display the Customer Data for the limited purpose of (i) providing the Service and associated customer support to Customer; (ii) displaying the Customer Data to the End Users; and (iii) analyzing and improving the Service.

b. Reservation of Rights. Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Clearpath any rights or interest in or to the Customer Data or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Clearpath Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.

c. Use of Customer Suggestions. Clearpath may incorporate into the Service any suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of Clearpath. Clearpath may also share and publish aggregate, anonymized data about the use of our Service by our customers.

d. Clearpath Customer List. Clearpath may include Customer’s name in a list of Clearpath’s Customers online and in print and electronic marketing materials.

e. Fees and Payment. By subscribing to the Service and providing payment account information, Customer agrees to these payment terms and conditions. If Customer subscribes to the Service under any promotional subscription fee, some additional restrictions may apply. Free or discounted introductory offers are only available to new users of the Service, except where expressly stated. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Clearpath to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and require recurring payments. Fees will be charged on an annual or monthly basis based on Customer’s subscription. Clearpath may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has terminated the Service or Clearpath terminates the Service. Customer must cancel the Service prior to its renewal date in order to avoid billing of the next period’s fee. If Customer chooses to cancel the Service, Customer may use the Service until the end of the current period but will not be issued a refund for the most recently (or any previously) charged fees. Customer can cancel Service anytime online by going into the Customer’s account settings prior to its renewal date if Customer has a monthly plan.

Subscriptions. Unless otherwise provided in the applicable Order, (a) Services and Content are purchased at a one-year subscription minimum, (b) subscription months may be added at current pricing levels on a prorated basis, (c) periods may be added on a multi-year period up to five (5) years at current pricing levels, (d) subscription periods must run continuously, and any break of subscription service coverage will likely result in loss of Your previously entered data. 

Usage Limits. Services and Content subscription packages are subject to usage limits. Usage limits are based on Customer’s Order.  Generally, usage limits are based on factors that include the size of your facility, the location of your facility, the dispersion of facilities, and number and type of anticipated Users. Pricing discounts can be arranged for multiple locations or enterprise versions. Multiple facility offerings must be directly owned or closely affiliated with Customer, and Services cannot be shared, re-sold or leased to separate organizations or to any form of bureau service.

From time to time, Beta versions of Services or a portion thereof may be made available. If and the extent such Beta versions are offered, they will be marked as “Beta” and will be provided without warranty of any kind to Customer and on an AS IS basis. Uses of Beta Services are entirely voluntarily, and unless otherwise specified in writing, are free of charge. Clearpath provides Beta versions of Services to variously assist Clearpath with testing functionality, determining their utility, and gathering general feedback on certain features of the Services. However, by their nature Customer understands that Beta Services are highly likely to contain defects, and that should Customer’s Users elect to work with Beta Services, that they may encounter serious performance problems and/or loss of data. Clearpath may discontinue Beta Services at any time in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with use of a Beta Service.

Clearpath may revise fee rates and/or the billable amount structure for the Service from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in fees at least thirty (30) days prior. Customer is responsible for providing complete and accurate billing information to Clearpath. Clearpath may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on Clearpath’s net income) and Clearpath will charge tax when required to do so by law.

Customer will pay all fees as specified in Customer’s Order. Except as otherwise specified herein or in an Order, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) new members (and lapsed members whose subscriptions have been expired or unpaid for 45 or more days) are subject to specified one-time Set-Up fees, (iv) any promotional or other discounts must be applied at the time of the Orders and not in arrears, and (v) Services and Content that are not specifically included in an Orders may be available for additional fees, and may be subject to discounts for follow-on or existing customers. The pricing of fees are subject to change by Clearpath at any time.

Invoicing and Payment. Clearpath will invoice Customer in accordance with the terms of the Order of the Services. Unless otherwise stated in the Order, invoiced charges are due in full and net 30 days from the invoice date. Alternatively, Clearpath can accept credit card payments. If Customer provides credit card information to Clearpath, Customer authorizes Clearpath to charge such credit card for all Purchased Services listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. 

The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional of one year period at the expiration of the existing subscription, unless You provide 21 days written notice prior to end of the scheduled subscription term. Subscriptions may be upgraded or downgraded on a pro-rated basis, if applicable.

Taxes. Our fees do not include 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 whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder.

Other Charges. We are not responsible for any other fees or charges that you may incur directly or indirectly in connection with use of Our Services. You are solely responsible for any and all other fees, which may include but are not limited to any telecommunications fees, local or long distance phone charges, local internet costs or access fees, and any other charges. 

Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Subscriber Agreement that are clearly marked as such on the face of the Purchase Order, any terms and conditions on a Customer purchase order that conflict with this Subscriber Agreement will not apply and are null and void.

5. Term and Termination.

This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. A party may terminate this Agreement (i) upon 21 days written notice to the other party, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We reserve the right to terminate this Agreement, and the right to terminate Your or any User’s use the Services or Dashboard, or both, for any breaches of the terms of this Agreement by You or the User.  Subscription fees following Termination are not refundable in accordance with Section 5.1 (Fees). In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Subscriber Agreement: Sections 4(b) and (c), 6-9, 12, and 13.

6. Confidentiality

a. Confidentiality. During the course of their performance under this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to the Customer, Confidential Information also includes the Customer Data.

b. Obligations. Except as otherwise expressly permitted under this Services Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. Clearpath may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing Clearpath’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Customer may disclose Clearpath’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.

c. Exclusions. The obligations set forth in Section 7(b) above shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.

7. Idemnification.

a. By Customer. Customer hereby agrees to indemnify, defend and hold harmless Clearpath, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “Clearpath Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of any claim by a third party against Clearpath or the Clearpath Affiliates regarding: (i) use of or access to the Service by Customer or its End Users in violation of this Subscriber Agreement or our User Terms of Use; or (ii) any data or Customer Data transmitted or received through, or posted or stored in, Customer’s account.

b. By Clearpath. Clearpath hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates to the extent based on an allegation that the Service or Clearpath’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Clearpath have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by Clearpath; (ii) use of any third party app developed using Clearpath’s API; or (iii) any content, information, or data provided by Customer, End Users, or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY VIOLATION BY CLEARPATH OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

c. Infringement Claims. If the Service becomes, or in Clearpath’s reasonable judgment is likely to become, the subject of a claim of infringement, then Clearpath may: (i) obtain the right, at Clearpath’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that it is no longer infringing. If Clearpath, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Clearpath may suspend or terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.

e. Process. The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.

8. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL CLEARPATH BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CLEARPATH BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO CLEARPATH HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

9. Hosting of the Service; Export Restrictions.

The Service is controlled and operated from facilities in the United States. Clearpath makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that Clearpath may transfer, store and process Customer Data in locations other than Customer’s country. The export and re-export of Content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.

10. Modifications.

Clearpath may revise this Subscriber Agreement from time to time by posting the modified version on its website at least twenty (20) days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Clearpath’s obligations unless affirmatively agreed to by Customer in advance. If, in Clearpath’s sole and reasonable discretion, the modifications being proposed are material, Clearpath will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Clearpath’s obligations hereunder, Customer agrees to be bound by such modifications.

11. Governing Law; Binding Arbitration and Class Action Waiver. 

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Subscriber Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. The parties agree that the Subscriber Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Customer Agrees to contact Clearpath to attempt to resolve the dispute in good faith. Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Broward County, Florida. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Subscriber Agreement, including, but not limited to any claim that all or any part of the Subscriber Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Broward County, Florida. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Broward County, Florida. Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Services (collectively, “IP Claims”) shall not be subject to arbitration.

12. Miscellaneous

a. Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.

b. Force Majeure. Except for payment obligations, neither Clearpath nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.

c. Assignment. Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.

d. Entire Agreement. This Subscriber Agreement, together with any Customer purchase order or order form associated herewith (as limited by Section 6), constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.

e. No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.

f. Communications from Clearpath. You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in connection with the Service (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the Clearpath website or through the Service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 For questions about these or any Clearpath terms or policies, email us at [email protected].

Acceptable Use of the Service

Last Updated: August 24, 2020

All users of the service provided by Clearpath EPM/EPM Strategies, LLC and Clearpath Alerts, LLC (collectively, “Clearpath”) are expected to comply with this Acceptable Use Policy.

Disruption of the Service. You may not:

• access, tamper with, or use non-public areas of the Service, Clearpath’s computer systems, or the technical delivery systems of Clearpath’s providers;
• probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
• access or search the Service by any means other than Clearpath’s publicly supported interfaces (for example, “scraping”);
• attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time)
• interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.

Misuse of the Service. You may not utilize the Service to carry out, promote or support:

• any unlawful or fraudulent activities;
• the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
• activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
• the publishing or posting other people’s private or personally identifiable information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission;
• the sending unsolicited communications, promotions advertisements, or spam;
• the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
• promotion or advertisement of products or services other than your own without appropriate authorization.
• Content Standards Within the Service. You may not post any Content on the Service that:
• violates of any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
• is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
• contains viruses, bots, worms, or similar harmful materials; or
• contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.

Violations of this Acceptable Use Policy. 

In addition to any other remedies that may be available to us, Clearpath reserves the right to immediately suspend or terminate your account or your access to the Service upon notice and without liability for Clearpath should you fail to abide by this Acceptable Use Policy. If you are a user of the Service under your employer or organization’s account, Clearpath reserves the right to notify your employer or organization of any violations of this Acceptable Use Policy.

Modifications. 

Clearpath may amend or modify this Acceptable Use Policy from time to time in its sole and reasonable discretion. We will post any such changes on our website. If you object to any such change(s), your sole recourse shall be to cease using the Service. Continued use of the Service following notice of any such changes shall constitute your acknowledgement and acceptance of such changes.

For questions about these or any Clearpath terms or policies, email us at [email protected].

Law Enforcement Data Request Guidelines

Last Updated: August 24, 2020

These guidelines are intended to provide law enforcement authorities with information regarding the process for requesting records from Clearpath EPM/EPM Strategies, LLC and Clearpath Alerts, LLC (collectively “Clearpath”). So that we can ensure compliance with our user Terms of Service and Privacy & Data Protection Policy, we respond only to law enforcement requests that adhere to established legal process and applicable law.

U.S. Legal Process Requirements. 

We disclose user information solely in accordance with our published Terms of Service and applicable U.S. law, including the federal Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712. In accordance with U.S. law:

A jurisdictionally valid subpoena, issued in connection with an official criminal investigation, is required to compel the disclosure of basic user records, which may include name, length of service, credit card information (including billing address), email address(es), and an IP address, if available.

A court order is required to compel the disclosure of certain records or other information related to a user account (not including contents of communications), which may include message headers and IP addresses, in addition to the basic user records identified above.

A search warrant properly issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures, based on a showing of probable cause, is required to compel the disclosure of the stored contents of any account, which may include messages, attachments, or other content of communications within a user’s account.

International Legal Requirements. 

In the case of requests from law enforcement outside of the U.S., a Mutual Legal Assistance Treaty (MLAT) request or letter rogatory may be required to compel the disclosure of the contents of an account.

Account Preservation Requests. We will take reasonable steps to preserve account records in connection with official criminal investigations for a period of 90 days pending our receipt of a formal legal request for user data. You may request the preservation of records via email, fax or mail as indicated below.

Information Required in Connection with Your Request.

• Your Contact Information.
• Requesting Agency’s name
• Requesting Agent’s name
• Requesting Agent’s badge/identification number
• Requesting Agent’s Agency-issued Email address
• Requesting Agent’s telephone number, including extension
• Requesting Agent’s mailing address (PO Box not acceptable)
• Requested response date (please allow at least 3 weeks for processing)

Data Request Information

• Full (first and last) name of the Clearpath User
• Email address(es) associated with the User’s account
• A clear and specific description of the data being requested (we will be unable to process overly broad or vague requests)

Data Availability. 

We will search for and disclose data that is specified with particularity in an appropriate form of legal process and which we are reasonably able to locate and retrieve.

User Notification. 

Clearpath’s policy is to notify users of requests for their information, which includes a copy of the request, prior to disclosure so that they may have an opportunity to challenge such request unless: (a) we are prohibited from doing so by law or court order; (b) there are exceptional circumstances, such as an emergency involving the risk of bodily injury or death to a person or group of people or potential harm to minors; or (c) prior notice would be counterproductive (for example, if we believe that the account in question has been hijacked). Law enforcement officials who believe that notification would jeopardize an investigation should obtain a proper court order or other appropriate process establishing that notice is prohibited. Please note that Officer authored affidavits, cover letters or similar statements are not sufficient to preclude notice to our users. Please note that in situations where a data request draws attention to an ongoing violation of our Terms of Service we may, in order to protect our service and its Users, take action to prevent any further abuse, including actions that could notify the User(s) who are the subject of your data request that we are aware of their misconduct.

Submitting Your Request. 

A data request may be served by fax to 877-376-9133, or by certified mail at the following address: Clearpath EPM, 1126 S Federal, Suite 508, Fort Lauderdale, FL 33316.

For questions about these or any Clearpath terms or policies, email us at [email protected].