Terms

Introduction; Your Agreement to these Terms of Service.

Welcome to the ClearGears Inc (DBA ClearGears) (“ClearGears,” “Us” or “We”) performance management software services, ClearGears web site, as well as any other web sites, subdomains, or services owned or controlled by ClearGears (collectively, the “ClearGears Services”). To access the ClearGears Services, users must at all times agree to and abide by these Terms. The ClearGears Services allow you to submit, store, and access your software development data, technology, and other development and/or company-related information (collectively, “Information”).

This Terms of Service for the ClearGears Services is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single company, organization, or entity (“You” or, collectively, “Users”), and ClearGears regarding your use of the ClearGears Services. The services hereunder are offered by ClearGears, Inc. located at: 1809 McAdam Road, Darien, IL 60561 and email: support@ClearGears.com.

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. By REGISTERING FOR AND/OR accessing, browsing, using or SUBSCRIBING TO The ClearGears Services, you acknowledge that you have read, understood, and agree to be bound by the following terms, including ANY ADDITIONAL GUIDELINES, AND any FUTURE modifications (collectively, the “TERMS”). If AT ANY TIME you do not agree to these Terms, THEN please TERMINATE YOUR use OF The ClearGears Services.

IF YOU ARE USING OR OPENING AN ACCOUNT WITH CLEARGEARS ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (collectively, the “SUBSCRIBING ORGANIZATION”) THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE an authorized representative of THAT ENTITY WITH THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS; (II) have read the foregoing TERMS; (III) understand THESE TERMS, and (IV) agree to THESE TERMS on behalf of SUCH SUBSCRIBING ORGANIZATION.

  1. Privacy. Your privacy is important to ClearGears. The Privacy Notice for the ClearGears Services is hereby incorporated into these Terms by reference. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.
  2. Individual Features and Services . When using the ClearGears Services, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
  3. Modification of the Terms. ClearGears reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time. You agree to review these Terms and any Guidelines periodically for changes. Your continued use of the ClearGears Services after the posting of changes constitutes your binding acceptance of such changes. If any such revision is unacceptable to you, your only remedy is to terminate your ClearGears User Account. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the ClearGears Services.
  4. Customer Service; Customer Communications and Notice . Please email support@ClearGears.com for further assistance. Under these Terms, you consent to receive communications from ClearGears electronically. We will communicate with you by email or by posting notices on the ClearGears Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
  5. Eligibility. THE CLEARGEARS SERVICES ARE NOT AVAILABLE TO PERSONS UNDER 18 YEARS OF AGE OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE CLEARGEARS SERVICES BY CLEARGEARS. By clicking the "I Agree” button or by otherwise SUBSCRIBING TO or using the ClearGears Services you represent that you are at least 18 years of age.
  6. Account Activity Responsibility.
  1. User Accounts. In order to use certain aspects of the ClearGears Services, you will have to register and create an account (“User Account”). When creating your account for the ClearGears Services, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify ClearGears. You may be liable for the losses incurred by ClearGears or others due to any unauthorized use of your account.
  2. Administrator Accounts. The person who first completes the ClearGears Services registration on behalf of any Subscribing Organization is the initial “Administrator” for purposes of such Subscribing Organization’s use of the ClearGears Services, and exercises certain options to initially determine the level of access, privacy, and security for the ClearGears Services related to the Subscribing Organization (“Administrator Account”). For example, the Administrator will determine who can be a User of the ClearGears Services under the organization associated with that Administrator and Subscribing Organization and the level of privileges that such Users will possess. Each Administrator may designate other Users as additional and/or successor Administrators, and is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the ClearGears Services billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with Section 7.1 above. ADMINISTRATORS ARE FULLY AND SOLELY RESPONSIBLE FOR ALL ACTIVITY OCCURRING UNDER THE APPLICABLE SUBSCRIBING ORGANIZATION ACCOUNT.
  3. Subdomains. Upon registration, the Subscribing Organization may select a subdomain and site name and its Users will each select a password. ClearGears will use reasonable efforts to assign to the Subscribing Organization the subdomain and site name that it selects. However, the Subscribing Organization and its Users may not select or use a subdomain or site name, and ClearGears reserves the right to reject or terminate use of a subdomain or site name if it has been previously assigned to another Subscribing Organization or if ClearGears, in its sole discretion, determines that: (a) the subdomain and site name is offensive or its use violates applicable law; (b) multiple sites have been registered by a Subscribing Organization or its Users to avoid purchasing incremental storage space, or simply to reserve subdomain or site names without the intent to use them; (c) the Subscribing Organization or its Users has selected or is using a subdomain or site name of another party with the intent to impersonate that party; or (d) the subdomain or site name contains, may interfere or be confused with, violate, exploit, or capitalize on, the name, goodwill, trade name, trademark, registered trademark, service mark, or proprietary or other rights of any party. If ClearGears rejects or terminates use of a subdomain or site name because of a violation or threatened violation of this section, it may elect, at its sole discretion and without prior notice to select an alternate subdomain and site name, to allow the Subscribing Organization to promptly select another acceptable subdomain and site name, and/or to terminate such Subscribing Organization’s account hereunder.
  4. SCM System Access. You may choose to allow ClearGears to automatically retrieve data from your SCM system(s) account on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow ClearGears to so automatically access such SCM system(s) and you hereby grant ClearGears permission to access your SCM system(s) and retrieve information therefrom by indicating the same within your ClearGears Services User Account. ClearGears disclaims any and all liability associated with accessing and retrieving Information from your SCM system(s) on your or your Subscribing Organization’s behalf. IF AT ANYTIME YOU DO NOT HAVE THE RIGHT AND AUTHORITY TO ALLOW CLEARGEARS AUTOMATIC ACCESS TO YOUR SCM SYSTEM(S), THEN YOU HEREBY AGREE TO IMMEDIATELY DISABLE SUCH FUNCTIONALITY WITHIN YOUR SUBSCRIBER, ADMINISTRATOR, AND/OR SUBSCRIBING ORGANIZATION ACCOUNT.
  5. Account Information. You acknowledge and agree that ClearGears may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Information violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of ClearGears, its users, or the public.
  • Payment Terms; Charges and Taxes .
    1. You are responsible for paying any applicable fees and applicable taxes associated with the ClearGears Services in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made by the methods specified within the ClearGears Services. You agree to pay for all services that you purchase through the ClearGears Services, and we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, or expiration date) and to notify ClearGears if your selected payment method is cancelled (e.g., for loss or theft).
    2. You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your purchase from or use of the ClearGears Services, including, but not limited to, sales, use, or value-added taxes. To the extent ClearGears is obligated to collect such taxes, the applicable tax will be added to your billing account.
  • Subscription Services. Features of the ClearGears Services may be offered on a subscription-basis (“Subscription Services”). If you open a Subscription Services account on the ClearGears Services, then you hereby agree to pay all charges to your account, including applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable.
    1. Subscription Services Fee Payments . Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your subscription preferences within the ClearGears Services of termination of this authorization or of a change to your selected payment method; provided, however, that such notice will not affect charges submitted before ClearGears could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable service. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.
    2. Subscription Fee Adjustments. ClearGears reserves the right to change the amount of, or basis for determining, any fees or charges for Subscription Services we provide, and to institute new fees, charges, or terms effective upon prior notice to our Users. You will receive notice of any fee change at least five days before the scheduled date of the transaction and failure to cancel your account as set forth herein will constitute acceptance of such fee change. Any changes to fees will apply only on a prospective basis. If you do not agree to any such changes to fees, charges, or terms, your sole remedy is to cancel your subscription. Fees paid for any Subscription Services term are paid in advance and are not refundable in whole or in part. If you have a balance due on any Subscription Services account, you agree that ClearGears can charge these unpaid fees to any payment method that you have previously provided.
    3. Subscription Services Renewal. Your Subscription Services will be automatically renewed and your credit card account (or other payment method account) will be charged as follows without further authorization from you: (i) every month for monthly subscriptions; (ii) upon every one year anniversary for annual subscriptions; (iii) such other periodic rate you have selected from among the options offered on the ClearGears Services.
    4. Subscriptions. For annual subscriptions, you will have thirty days after the date that any renewal fee is posted to your account to give notice that you want to cancel your subscription, and the subscription will be cancelled upon receipt of such notification and a credit will be posted to your account equal to the latest renewal fee charged. For monthly accounts or other accounts with a periodic subscription cycle of less than one year, there are no refunds for cancellations for periodic charges. For monthly subscriptions, you must cancel your subscription within the ClearGears Services at least five business days prior to the first day of the next calendar month to avoid being charged the renewal fee for such month. For all other subscriptions, you must cancel your subscription within the ClearGears Services at least five business days prior to the first day of the next subscription period to avoid being charged the renewal fee for such subscription period.
  • Restrictions – when USING THE CLEARGEARS SERVICES YOU AGREE not TO:
    1. Upload or send to other ClearGears Users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
    2. Use the ClearGears Services for any purpose that is unlawful or is otherwise prohibited by these Terms;
    3. Use the ClearGears Services in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the ClearGears Services;
    4. Attempt to gain unauthorized access to the ClearGears Services, or any part of them, other accounts, computer systems or networks connected to the ClearGears Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the ClearGears Services or any activities conducted on the ClearGears Services;
    5. Modify the ClearGears Services in any manner or form, or use modified versions of the ClearGears Services, including (without limitation) for the purpose of obtaining unauthorized access to the ClearGears Services;
    6. Use any robot, spider, scraper, or other automated means to access the ClearGears Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the ClearGears Services;
    7. Impersonate another person or access another User’s account without that person’s permission or to violate any contractual or fiduciary relationships;
    8. Share ClearGears-issued passwords with any third party or encourage any other User to do so;
    9. Misrepresent the source, identity, or content of Information transmitted via the ClearGears Services;
    10. Modify, adapt, translate or create derivative works based upon the ClearGears Services;
    11. Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the ClearGears Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
    12. Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the ClearGears Services to any third party or use the ClearGears Services for any purpose other than your own internal personal or business use or to provide time sharing or similar services for any third party;
    13. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the ClearGears Services, features that prevent or restrict use or copying of any content accessible through the ClearGears Services or ClearGears Services, or features that enforce limitations on use of the ClearGears Services or ClearGears Services; or
    14. Access the ClearGears Services if you are a direct competitor of ClearGears, except with ClearGears’s prior written consent, or for any other competitive purposes.
  • Violations; Termination. You agree that ClearGears, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have with ClearGears. In addition, ClearGears reserves the right to discontinue any aspect of the ClearGears Services at any time, including the right to discontinue the display of any Information. You agree that any termination of your access to the ClearGears Services or any account you may have or portion thereof may be affected without prior notice, and you agree that ClearGears will not be liable to you or any third-party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the ClearGears Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies ClearGears may have at law or in equity.
  • User Provided Information.
    1. Definition of User Provided Information; Ownership . ClearGears may now or in the future permit the uploading of Information through the ClearGears Services (“User Provided Information”), and the hosting, sharing, display and/or analysis of such User Provided Information. You understand that whether or not such User Provided Information is displayed, ClearGears does not guarantee any confidentiality with respect to any User Provided Information. Users retain all right, title, and interest in and to all User Provided Information .
    2. License Grant to ClearGears . By submitting User Provided Information to ClearGears Services, you hereby grant to ClearGears a worldwide, non-exclusive, assignable, fully paid-up, and royalty-free license to use, display, reproduce, distribute and analyze your User Provided Information within the ClearGears Services in any formats and through any applicable channels for the purposes of providing the applicable features and functionality of the ClearGears Services and improving the way the ClearGears Services work and look, and to create new features and functionality. This license does not grant ClearGears the right to use your User Provided Information for any other commercial purposes.
    3. Limited License Grant to other ClearGears Users . By submitting User Provided Information to ClearGears Services, in cases where you display your User Provided Information for other Users to view or when you directly exchange or otherwise provide your User Provided Information to other Users as permitted by certain ClearGears Services functionality and these Terms, you hereby grant to such Users of the ClearGears Services a non-exclusive license to use, display, and reproduce such User Provided Information as necessary for such Users to use the relevant ClearGears Services functionality or features.
    4. License Termination. The foregoing licenses granted by you terminate as to specific User Provided Information once you remove or delete such User Provided Information from the ClearGears Services; except for ClearGears’s right to use such Information in aggregate form to improve the way the ClearGears Services work and look, and to create new features and functionality.
    5. Required Rights. You shall be solely responsible for your own User Provided Information and the consequences of posting or publishing it. In connection with User Provided Information, you affirm, covenant, represent and warrant that you own, or have the necessary licenses, rights, consents, and permissions to use and to authorize ClearGears and ClearGears’s Users to use the User Provided Information uploaded by you as necessary to exercise the licenses granted by you in this Section 13, and otherwise in the manner contemplated by ClearGears and these Terms.
    6. User Provided Information Representations . In connection with User Provided Information, you further agree that you will not: (i) submit material that is copyrighted, protected by patents or trade secrets or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the Information and to grant ClearGears all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage ClearGears or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person.
    7. User Provided Information Disclaimer . You understand that when using ClearGears Services you will be exposed to User Provided Information from a variety of sources, and that ClearGears is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Provided Information. You further understand and acknowledge that you may be exposed to User Provided Information that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against ClearGears with respect thereto, and agree to indemnify and hold ClearGears, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of User Provided Information. ClearGears does not endorse any User Provided Information or any opinion, recommendation or advice expressed therein or based upon such User Provided Information, and ClearGears expressly disclaims any and all liability in connection with User Provided Information. If notified by a User or a content owner of User Provided Information that allegedly does not conform to these Terms, ClearGears may investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Provided Information, which it reserves the right to do at any time. ClearGears does not permit copyright infringing activities on ClearGears Services .
  • Ownership; Proprietary Rights . The ClearGears Services are owned and operated by ClearGears Inc. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of the ClearGears Services provided by ClearGears, but expressly excluding any of the foregoing owned or licensed by and posted to the ClearGears Services at the direction of Users (including without limitation User Provided Information) (“Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any technology licensed by ClearGears, which is owned by and provided by our third-party licensors, all Materials contained in the ClearGears Services are the property of ClearGears or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to ClearGears or its affiliates and/or third-party licensors. Except as expressly authorized by ClearGears, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
  • Third-Party Sites, Third-party Information .
    1. The ClearGears Services may call the servers of other web sites or services solely at the direction of and as a convenience to Users (“Third-party Sites”). ClearGears makes no express or implied warranties with regard to the Information, or other material, products, or services that are contained on or accessible through Third-party Sites. Access and use of THIRD-PARTY sites, including the information, material, products, and services on SUCH sites or available through SUCH sites, is solely at your own risk.
    2. YOU ACKNOWLEDGE THAT CLEARGEARS DOES NOT MANAGE OR CONTROL THE SUBSCRIBER PROVIDED INFORMATION THAT YOU ACCESS, STORE OR DISTRIBUTE THROUGH THE CLEARGEARS SERVICES, AND ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR THAT INFORMATION REGARDLESS OF WHETHER SUCH SUBSCRIBER PROVIDED INFORMATION IS TRANSMITTED TO OR BY YOU IN BREACH OF THESE TERMS. CLEARGEARS MAKES NO WARRANTY WITH RESPECT TO SUCH SUBSCRIBER PROVIDED INFORMATION YOU MAY ACCESS, STORE OR DISTRIBUTE THROUGH THE CLEARGEARS SERVICES. IN PARTICULAR, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLEARGEARS MAKES NO WARRANTY THAT SUCH SUBSCRIBER PROVIDED INFORMATION WILL BE FREE OF ANY VIRUS, WORM, TROJAN HORSE, EASTER EGG, TIME BOMB, CANCELBOT, OR OTHER DESTRUCTIVE OR MALICIOUS CODE OR PROGRAMS. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against ClearGears with respect TO THIRD-PARTY AND/OR SUBSCRIBER PROVIDED INFORMATION THAT YOU CHOOSE TO ACCESS, STORE OR DISTRIBUTE, THROUGH THE CLEARGEARS SERVICES.
  • Disclaimers; No Warranties . THE CLEARGEARS SERVICES AND ANY THIRD-PARTY OR SUBSCRIBER PROVIDED INFORMATION, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH CLEARGEARS SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CLEARGEARS, ITS SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
    • CLEARGEARS, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN CLEARGEARS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE (INCLUDING WITHOUT LIMITATION ANY FORECASTS OR PREDICTIONS RELATED TO THE PROJECT MANAGEMENT FUNCTIONALITY AND BASED UPON SUBSCRIBER PROVIDED INFORMATION THEREIN), THAT THE CLEARGEARS SERVICES WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT CLEARGEARS SERVICES OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
    • CLEARGEARS, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF CLEARGEARS SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT CLEARGEARS NOR ITS SUPPLIERS, LICENSOR OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THIRD-PARTY OR SUBSCRIBER PROVIDED INFORMATION, MATERIAL, OR DATA THROUGH THE USE OF CLEARGEARS SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH THIRD-PARTY OR SUBSCRIBER PROVIDED INFORMATION, MATERIAL, OR DATA. CLEARGEARS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY THIRD-PARTY OR SUBSCRIBER PROVIDED INFORMATION.
    • CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    1. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL CLEARGEARS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE INFORMATION OR MATERIALS ON CLEARGEARS SERVICES, OR ANY OTHER INTERACTIONS WITH CLEARGEARS, EVEN IF CLEARGEARS OR A CLEARGEARS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, CLEARGEARS’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
    • IN NO EVENT WILL CLEARGEARS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF CLEARGEARS SERVICES, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER CLEARGEARS SERVICES MEMBERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING CLEARGEARS SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
    • YOU ACKNOWLEDGE AND AGREE THAT CLEARGEARS HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND CLEARGEARS.
    1. Consumer End Users (Outside of the U.S.A.). The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for solely personal use otherwise than in the course of a business outside of the U.S.A. The limitations or exclusions of warranties, remedies or liability contained in these Terms apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
    1. Indemnification; Hold Harmless . You will indemnify, save, and hold ClearGears, its officers, investors, directors, employees, shareholders, agents, licensors and subcontractors, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claims, actions or proceedings brought against ClearGears or its officers, directors, investors, employees, shareholders, agents, licensors and subcontractors that may arise from your breach of these Terms or from any use which you or your Subscribing Organization make of the ClearGears Services. ClearGears will have the right to control the defense, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by ClearGears. ClearGears will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same. Without limiting the generality of the foregoing, you agree that the indemnity provided in this section will include and apply to any liabilities, losses, damages, costs and expenses arising from any third-party or User Provided Information you use or transmit to others using the ClearGears Services.
    2. Miscellaneous.
    1. Notice. ClearGears may provide you with notices, including those regarding changes to ClearGears’s terms and conditions, by email, regular mail or postings on the ClearGears Services. Notice will be deemed given twenty-four hours after email is sent, unless ClearGears is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the ClearGears Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the ClearGears Services is deemed given 30 days following the initial posting.
    2. Waiver. The failure of ClearGears to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by ClearGears.
    3. Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
    4. Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or ClearGears will be filed only in the state or federal courts in and for Santa Clara County, California, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
    5. Severability. If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
    6. Assignment. These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ClearGears without restriction.
    7. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, Sections 1, 3, 6, 7, and 10 through 19 herein.
    8. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
    9. Entire Agreement. This is the entire agreement between you and ClearGears relating to the subject matter herein and will not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by ClearGears as set forth in Section 3 above.
    10. Claims. YOU AND CLEARGEARS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE CLEARGEARS SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    11. Disclosures. The services hereunder are offered by ClearGears, Inc., located at: 1809 McAdam Road, Darien, IL, 60561 and email: support@ClearGears.com .