Terms of Service
If you purchase a subscription to the services or any feature of the services (a “Subscription” and each such service a “Subscription Service”), then your subscription will continue for the duration set forth at the time of purchase and will be automatically renewed for additional periods of the same duration as the initial term at Clay’s then-current fee for such subscription services unless you decline to renew your subscription in accordance with section 7.2 below.
Please be aware that section 15, below, contains provisions governing how claims that you and we have against each other are resolved, including, without limitation, any claims that arose or were asserted prior to the effective date of this agreement. In particular, it contains an arbitration agreement which will, with limited exceptions, require disputes between us to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement: (1) you will only be permitted to pursue claims and seek relief against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you are waiving your right to seek relief in a court of law and to have a jury trial on your claims.
Any dispute or claim relating in any way to your use of the services will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this agreement.
⚡️ So, let's get started.
1. Overview of the Services
The Services permit users to stitch together apps, APIs and software code by building, using and tracking automated workflow engines (“Flows”), in a spreadsheet-like interface (“Bases”). Clay’s platform allows users to access the source code specific to those Flows (“Functions”) that can be used as a simple serverless API or within other Flows and Bases.
1.1 Limited License. Subject to your compliance with the Agreement, Clay grants you: (a) permission to access and use the Services; and (b) reproduce, modify, distribute and display the Functions obtained from the Services, and with respect to both (a) and (b), solely for your personal use or internal business purposes in connection with developing and using Bases, Flows and Functions.
1.2 Certain Restrictions. By accessing and using the Services, you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof; (b) frame or utilize framing techniques to enclose any trademark, logo or other portions of the Services (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Clay’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law or permitted by the function of the Services; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Services in order to build a similar or competitive website, application or service; (g) copy, reproduce, distribute, republish, download, display, post or transmit, in any form, or by any means (except as expressly stated herein or permitted by the features and functionality of the Services); (h) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; or (i) take any action or Make Available any Content (as defined in Section 3.1) on or through the Services that: (I) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (II) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive or profane; (III) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (IV) involves commercial activities and/or sales without Clay’s prior written consent, such as contests, sweepstakes, barter, advertising or pyramid schemes; (V) impersonates any person or entity, including any employee or representative of Clay and other users; (VI) interferes with or attempts to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (VII) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services; introducing viruses, worms or similar harmful code into the Services; or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing” or “crashing” the Services. Any future release, update or other addition to the Services shall be subject to the Agreement, unless otherwise stated by Clay at the time such release, update or addition is made available to you. Clay, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Services terminates the licenses granted by Clay pursuant to the Agreement.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to register for an account on the Services (“Account”) or link an account on a social networking service (“SNS”) through which you connect to the Services (each such account, a “Third-Party Account”).
2.2 Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services, you may link your Account with Third-Party Accounts, by allowing Clay to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Clay and/or grant Clay access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Clay to pay any fees or making Clay subject to any usage limitations imposed by such third-party service providers. By granting Clay access to any Third-Party Accounts, you understand that Clay may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Clay’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Services. Please note that your relationship with the third party-service providers associated with your third-party accounts is governed solely by your agreement(s) with such third-party service providers, and Clay disclaims any liability for personally identifiable information that may be provided to it by such third-party service providers in violation of the privacy settings that you have set in such third-party accounts. Clay makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Clay is not responsible for any SNS Content.
2.3 Registration Data. You agree to: (a) provide true, accurate, current and complete information about yourself as prompted in registering your Account or linking your SNS (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Clay immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Clay has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Clay has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree that you shall not have more than one Account registered or SNS linked with the Services at any given time.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3.1 Types of Content. You acknowledge that, except as set forth herein, all scripts, files, materials, data, text, audio, video, images or other content, including Bases, Flows and Functions, (“Content”) uploaded or submitted by a user are the sole responsibility of the party who uploads, posts, transmits or otherwise makes available (“Make Available”) such Content. This means that you, and not Clay, are entirely responsible for all Content that you Make Available through the Services (“Your Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Clay has no obligation to pre-screen Content, although Clay reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. Without limiting the foregoing, Clay shall have the right to remove, at any time in its sole discretion, any Content that violates the Agreement or is otherwise objectionable.
3.3 Content Provided by Other Users. The Services may contain Content provided by other users. Clay is not responsible for and does not control such Content. Clay has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to user provided Content. You use all such Content and interact with other users at your own risk.
3.4 Your Content. Clay does not claim ownership of Your Content. When you Make Available Your Content on or in the Services, you represent that you have all necessary right, title, interest and authorization to Make Available Your Content and to grant the rights and licenses granted hereunder in Your Content.
3.5 License Grant to Clay. Subject to any applicable account settings that you select, you grant Clay a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other users.
3.6 License Grant to Other Users. By Making Available Your Content to other users of the Services, you grant those users a non-exclusive license to access and use Your Content as permitted by the Agreement and the functionality of the Services.
3.7 Access to Your Content. Unless expressly agreed to by Clay in writing elsewhere, Clay has no obligation to store any of Your Content that you Make Available on the Services. Clay has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Clay retains the right to create reasonable limits on Clay’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity and similar limits described on the Services and as otherwise determined by Clay in its sole discretion.
4. Rights and Ownership
4.1 Generally. Clay and its licensors expressly reserve all of their rights, title and interest, including all intellectual property rights, in and to the Services (including but not limited to, any computer code, methods of operation and documentation). Clay and all related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Clay and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. Except with respect to Your Content, you agree that you have no right, title or interest in or to any Content that appears on or in the Services except as expressly set forth herein.
4.2 Feedback. You agree that submission or provision of any ideas, suggestions, documents and/or proposals to Clay related to Clay or its products or services (“Feedback”) is at your own risk and that Clay has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Clay a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Clay’s business.
Clay may, but is not obligated to, monitor or review the Services and Content at any time. Although Clay does not generally monitor user activity occurring in connection with the Services or Content, if Clay becomes aware of any possible violations by you of any provision of the Agreement, Clay reserves the right to investigate such violations, and Clay may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
6. Third-party Services
6.1 Third-Party Websites, Applications, Ads, APIs and Services. The Services may contain links and integrations to third-party websites, applications, advertisements, services and application programming interfaces (collectively “Third-Party Services”), and are subject to the terms and conditions (including privacy policies) of each such Third-Party Service. Such Third-Party Services are not under the control of Clay, and Clay is not responsible for any Third-Party Service. Clay provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to Third-Party Services, or their products or services or the functions thereof, including any Third-Party Services for which you build, Bases, Flows or Functions. Your use of the Third-Party Services is at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Service, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. Fees and Purchase Terms
7.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may be required to provide Clay with a valid credit card (Visa, MasterCard or any other issuer accepted by us) or PayPal account (“Payment Provider”), as a condition to upgrade from a free Subscription to a paid Subscription. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Clay with your credit card number or PayPal account and associated payment information, you agree that Clay is authorized to immediately invoice your Account for all fees and charges due and payable to Clay hereunder and that, except as required by applicable law, no additional notice or consent is required. You agree to immediately notify Clay of any change in your billing address or the credit card or PayPal account used for payment hereunder. Clay reserves the right at any time to change its prices, charge for previously free Services and change its billing methods on a going forward basis, either immediately upon posting on the Services or by e-mail delivery to you. Except as set forth in the Agreement, all fees are non-refundable.
7.2 Automatic Renewal. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Clay’s then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your Subscription prior to the Renewal Commencement Date, by logging into and going to the “Account Settings” page. If you do not wish for your Subscription to renew automatically, or if you want to change or terminate your Subscription, please contact Clay at email@example.com. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription fee paid for the then-current Subscription period. If you fail to make any payment hereunder when due: (a) you agree to pay all amounts due on your Account upon demand; and/or (b) you agree that Clay may either terminate or suspend your Subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
7.3 Taxes. The payments required under Section 7.1, above, do not include any Sales Tax that may be due in connection with the Services provided under the Agreement. If Clay determines it has a legal obligation to collect a Sales Tax from you in connection with the Agreement, Clay shall collect such Sales Tax in addition to the payments required under Section 7.1 above. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Clay, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Clay for any liability or expense Clay may incur in connection with such Sales Taxes. Upon Clay’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.4 Free Trials and Other Promotions. Any free trial or other promotion that provides access to Subscription Services for free for a limited period of time must be used within the specified time of the trial (“Free Trial Period”). NOTWITHSTANDING ANYTHING CONTAINED HEREIN, ANY SERVICE PROVIDED DURING THE FREE TRIAL PERIOD IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES. At the end of the trial period, your use of that Subscription Service will expire and any further use of the Subscription Service is prohibited unless you pay the applicable Subscription fee. Clay may terminate your ability to access or use a Subscription Service on a free trial or promotion basis at any time and for any reason.
7.5 Third Party Service Providers. Clay uses Stripe, Inc. (“Stripe”) as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). Your use of the Platform and the payment processing provided by Stripe is subject to the Stripe Connected Account Agreement that includes the Stripe Services Agreement as may be modified by Stripe from time to time (collectively, the “Stripe Agreement”). As a condition of using Stripe’s payment processing, you must provide accurate and complete information about you and your business and you authorize us to share this information to Stripe. All bank and credit card information is sent directly to and stored with Stripe using their security protocols. Clay does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of Stripe’s payment processing is conditioned upon your compliance with the Stripe Agreement, and if the Stripe Agreement is terminated by Stripe you may not be able to use access the Services, or have your Account or paid Subscription suspended or terminated. We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions.
8.1 You agree to indemnify and hold Clay, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers and licensors (each, a “Clay Party” and collectively, the “Clay Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) violation of the Agreement; (c) your violation of any rights of another party, including any other users; or (d) your violation of any applicable laws, rules or regulations. Clay reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Clay in asserting any available defenses. This provision does not require you to indemnify any of the Clay Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
9. Disclaimer of Warranties and Conditions
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW:
- YOUR USE OF THE SERVICES, INCLUDING ANY CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, IS AT YOUR SOLE RISK, AND THE SERVICES, INCLUDING ANY CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS;
- CLAY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES;
- CLAY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES, INCLUDING ANY CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES, INCLUDING ANY CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING ANY CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, WILL BE ACCURATE OR RELIABLE;
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT; AND
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLAY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2 Beta Services. FROM TIME TO TIME, CLAY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CLAY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.3 No Liability for Conduct of Third Parties and Users. YOU ACKNOWLEDGE AND AGREE THAT CLAY PARTIES ARE NOT LIABLE FOR THE CONDUCT OF THIRD PARTIES ON THE SERVICES, INCLUDING ANY CONTENT OR THIRD PARTY SERVICES PROVIDED BY SUCH THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT CLAY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES.
9.4 Limitations. NOTWITHSTANDING THE FOREGOING, THE CLAY PARTIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT UNDER THIS SECTION 9 THAT THE CLAY PARTIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
10. Limitation of Liability
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE CLAY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CLAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CLAY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A CLAY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A CLAY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL CLAY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAID TO CLAy by you for the use of the service during the one-month period prior to the act, omission or occurrence giving rise to such liability; and (B) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CLAY PARTY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY A CLAY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A CLAY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLAY AND YOU.
11. Procedure for making claims of copyright infringement
It is Clay’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Clay by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Clay’s Copyright Agent for notice of claims of copyright infringement is as follows: firstname.lastname@example.org.
12.1 Breach. In the event that Clay determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the Services, Clay reserves the right to, in addition to any rights available to Clay hereunder or under applicable law:
- Delete any of Your Content provided by you or your agent(s) to the Services;
- Discontinue your registration(s) with any of the Services, including any Clay community;
- Discontinue your subscription to any Services; and/or
- Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action.
13. Term and Termination
13.1 Term. The Agreement will remain in full force and effect until terminated in accordance with the Agreement.
13.2 Termination of Services by Clay. Clay may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at Clay’s sole discretion, including for any use of the Services in violation of the Agreement. You agree Clay shall not be liable to you or any third party for any termination of your Account.
13.3 Termination of Services by You. If you want to terminate your Account or the Agreement, you may do so by: (a) notifying Clay at any time at: email@example.com or (b) accessing the “management page” on your Account and selecting “cancel my account”. SUBSCRIPTION SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.2.
13.4 Effect of Termination. Upon termination of any Service, your Account and right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Clay will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers and limitation of liability.
14. International Users
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Clay intends to announce such Services or Content in your country. The Services are controlled and offered by Clay from its facilities in the United States of America. Clay makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15. Dispute Resolution
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Clay and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Clay, will be resolved by binding arbitration, rather than in court, except that: (a) you may assert claims in small claims court if your claims qualify; and (b) you or Clay may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH CLAY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CLAY ALLEGING CLASS, COLLECTIVE AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST CLAY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, CT Corporation, 28 Liberty St 42nd Floor New York, NY 10005. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available here; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at here. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Clay will pay them for you. In addition, Clay will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to: (a) determine the scope and enforceability of this Arbitration Agreement; and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Clay. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND CLAY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Clay are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by e-mailing us at: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Clay username (if any), the email address you used to set up your Account (if you have one) and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.7 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Clay.
15.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Clay makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by e-mailing Clay at: email@example.com.
16. General Provisions
16.1 Electronic Communications. The communications between you and Clay may take place via electronic means, whether you visit the Services or send Clay e-mails, or whether Clay posts notices on the Services or communicates with you via e-mail. For contractual purposes, you: (a) consent to receive communications from Clay in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures and other communications that Clay provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
16.2 Release. You hereby release Clay Parties and their successors from claims, demands, any and all losses, damages, rights and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Clay Party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder.
16.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Clay’s prior written consent, and any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void.
16.4 Force Majeure. Clay shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.6 Exclusive Venue. To the extent the parties are permitted under this Arbitration Agreement to initiate litigation in a court, both you and Clay agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the state of New York.
16.7 Governing Law. The AGREEMENT and any action related thereto will be governed and interpreted by and under the laws of the State of NEW YORK, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
16.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
16.9 Notice. Where Clay requires that you provide an e-mail address, you are responsible for providing Clay with your most current e-mail address. In the event that the last e-mail address you provided to Clay is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Clay’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Clay at the following e-mail: email@example.com. Such notice shall be deemed given when received by Clay by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.12 Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport or transfer, directly or indirectly, any U.S. technical data acquired from Clay, or any products utilizing such data, in violation of the United States export laws or regulations.
16.13 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.14 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
17. Data Security
Clay Labs will maintain an information security program including administrative, physical and technical security policies and procedures with respect to its processing of Raw Data under this Agreement.
17.1.1 Breach Notification. Clay Labs will promptly without undue delay notify Customer in the event of an unauthorized access or disclosure of Raw Data. Clay Labs will not notify, for or on behalf of Customer (or any Authorized User), any regulatory authority, consumer or other person of unauthorized access or disclosure to Raw Data unless Customer explicitly requests in writing that Clay Labs do so.
17.1.2 Security Standards. Clay Labs will maintain appropriate administrative, physical and technical safeguards. These safeguards will include, but not be limited to, measures designed to prevent unauthorized access to or disclosure of Raw Data.
17.2.1 Availability. The service shall be available for an uptime percentage of at least 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance according to Clay Labs’s then-current policies and schedules. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Clay Labs’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Clay Labs’s entire liability, in connection with service availability shall be that for each period of downtime lasting longer than six hours, Clay Labs will credit Customer 5% of the applicable fees for each period of 6 hours or more of downtime; provided that no more than one such credit will accrue per day. Customer may subscribe to Clay Labs’s email notification feed for alerts on downtime or may notify Clay Labs of any outages that it recognizes. For calculation purposes, downtime will be defined as periods in which all Clay Labs services are unavailable, and will begin to accrue as soon as Customer (with notice to Clay Labs) recognizes that downtime is taking place, and continues until the availability of the Service is restored. In order to receive downtime credit, Customer must notify Clay Labs in writing within 24 hours from the time of downtime; failure to provide such notice will forfeit the right to downtime credit. Any credits will be applied to Customer’s next payment for services, which will be the sole form in which such credits will be granted (no refunds will be issued for any such credits) The total amount of credit for downtime will not exceed one (1) week’s worth of applicable fees in any given one (1) calendar month in any event.
17.3.1 Process Integrity. Customer will be responsible for obtaining and maintaining, at Customer’s expense, all telecommunications, computer hardware, software, and Internet connectivity required by Customer or any Authorized User to access the Service from the Internet, as well as for enabling integration with any systems used by Customer as required for the operation of the Subscription Service. Customer and its Authorized Users will have access to the Raw Data and will be responsible for all changes to and/or deletions of Raw Data. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service, safeguard the Access Protocols, and will notify Clay Labs promptly of any such unauthorized use known to Customer. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Raw Data. Customer agrees that the Subscription Service will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer represents and warrants that any Raw Data submitted to the Subscription Service will not (a) infringe or misappropriate any Intellectual Property Rights of any person; (b) be deceptive, defamatory, obscene, or unlawful; or (c) contain any viruses, worms or other malicious computer programming codes intended to damage Clay Labs’s systems or data. Clay Labs will have the right to review and monitor all use of the Subscription Service to ensure compliance with the terms of this Agreement.
17.3.2 Customer will not include in Raw Data any PHI (defined as personal health information regulated by the Health Insurance Portability and Accountability Act of 1996 or similar laws of other applicable jurisdictions) unless Customer has entered into a Sales Order Form that explicitly permits Customer to process PHI in the Subscription Service and a Business Associate Agreement with Clay Labs, which upon mutual execution, will be incorporated by reference into and subject to this Agreement. Customer will not include in Raw Data any cardholder data as defined under the Payment Card Industry Data Security Standard. Customer represents and warrants: (A) that its use of the Subscription Service will comply with Applicable Laws; (B) Raw Data will not contain (i) any data for which Customer does not have all rights, power, and authority necessary for its collection, use, and Processing as contemplated by this Agreement; or (ii) any data with respect to which Customer’s usage as contemplated herein would violate Applicable Laws; (C) Clay Labs’s processing of Raw Data as directed pursuant to this Agreement will not cause Clay Labs to violate Applicable Laws; and (D) Customer has all rights necessary to enable Clay Labs to integrate with any systems designated by Customer in the course of implementation of the Subscription Service for Customer, and Customer grants Clay Labs all necessary rights for enabling and/or implementing such integration, implementation, and subsequent operation, of the Subscription Service with Customer’s designated systems during the term of any outstanding Sales Order Form.
17.4.1 Confidentiality. Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, the Subscription Service, Documentation, output of the Service, and all enhancements and improvements thereto, will be considered Confidential Information of Clay Labs, and the Raw Data will be considered Confidential Information of Customer. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to its and its affiliates’ employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy/erase all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement. The obligation to return or destroy Confidential Information or copies thereof will not extend to back-up or archival copies generated in the ordinary course of the Receiving Party’s information systems procedures or to material that must be retained under applicable law, provided that such archived and/or legally required to be retained copies will (i) be erased or destroyed in the ordinary course of such party’s data processing procedures and (ii) remain subject to the obligations of confidentiality stated herein for so long as they are retained. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with efforts of the Disclosing Party to seek an appropriate protective order.