Terms & Conditions
NOTICE TO USER: please read this agreement carefully before downloading or using the software/service. By clicking on the “ACCEPT” button, by using, installing all or any portion of the Clariance software (“software”) you accept all the terms and conditions of this agreement. You agree that this agreement is enforceable like any written negotiated agreement signed by you. This agreement is enforceable against you and any legal entity that subscribed to the software and on whose behalf it is used.
If you do not agree to all of the terms of this agreement, click the “CANCEL” button and the installation process will not continue.
1. Definitions and Interpretation
1.1. The following terms and expressions shall have the following meanings.
Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Clariance. For the purpose of this definition, the word “control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
Agent: the monitoring agent to be installed at the Customer IT infrastructure.
Agreement: this End User License Agreement, as may be renewed and/or amended from time to time.
Clariance or Clariance®: refers to the company established under the laws of Luxembourg, Clariance S.à R.L., with its address at 66, rue de Luxembourg – L- 4221 Esch-sur-Alzette- Luxembourg, VAT n° LU23723045.
Clariance Portal : means the Clariance Web Site giving the Customer access to the Monitance solution.
Clariance Promotional Materials: any and all trademarks, names, signs, logos, banners, and any other materials, in whatever form, owned and/or used by Clariance for the promotion of its company, its products and activities.
Clariance Staff: the officers, directors, employees and agents of Clariance or its Affiliates, or any other persons hired by Clariance or its Affiliates.
Clariance Website: any and all elements, contents and the ‘look and feel’ of the website available under the URL http://www.Clariance.eu and http://www.Monitance.com and it’s subdomains, – among other URL’s.
Content: means any and all content consisting of text, sounds, pictures, photos, video and/or any type of information or communications.
Customer : You, the end user of the Clariance® Portal.
Documentation: any online or otherwise enclosed documentation provided by Clariance.
Fee: the fee payable by the Customer to Clariance.
Intellectual Property IP Rights (IP Rights ) : IP Rights means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow, trade secrets and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights.
Maintenance Release: release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Modification: any Maintenance Release.
Monitance or Monitance® : means the “Monitoring As a Service” solution offered by Clariance.
New Version: any new version of the Software containing significant differences from the previous versions and, which from time to time, is publicly marketed and offered for purchase by Clariance in the course of its normal business.
Password: refers to a code You select, which, in combination with the User ID, gives You access to Your User Account.
UI: the user interface of the Clariance Websites.
User Account: refers to the account with User ID and Password that You create for Your use of the Clariance® portal.
User ID: refers to an identification code You selected, which in combination with the Password, gives access to Your User Account.
You: You, the end user of the Clariance® Portal, also used in the form “Your” where applicable.
1.2. Any phrase introduced by the expressions “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.3. In the case of conflict or ambiguity between any provision contained in the body of this agreement and any provision contained on the product website www.Clariance.eu or www.Monitance.com, the provision in the body of this agreement shall take precedence.
2. License and Restrictions
2.1. License :
Subject to the terms of this Agreement, Clariance hereby grants Users subscribed to Clariance Portal a limited, commercial or non-commercial, non-exclusive, non-sublicensable, non- transferable, license to use the Software (Services) and to access the Clariance® “Monitoring As a Service” Web Site by login to the User’s Account which is uniquely identified by a Clariance® Monitance Account ID. The Clariance Monitance ID is provided for by Clariance on subscription.
Clariance provides the Customer with a Clariance® Monitance Account ID and an administrator login and password (“The Account Administrator”) to access and manage his account. The Clariance Monitance further enables the Customer, as the Customer Account Administrator, to create additional logins (within the maximum number of User Accounts granted by the User’s subscription to the service) so as to give access to the service to other users of the Customer’s organization that shall be permitted to login to the Customer Clariance Monitance Account. You, as the Customer Account Administrator, have full control over all logins of your account. You can disable, delete and change the accounts of the Customer’s organization. You may also grant administration right to one or more other users of your organization.
The Customer Account Administrator is responsible for securely distributing User Accounts to his users and the Customer agrees to not disclose User Accounts to non-authorised persons. The Customer is solely responsible for maintaining its User Accounts he has created within his Clariance® Account.
The Customer acknowledges that the Password should never be shared with anyone.
2.2 Trial Account License :
Subject to the terms of this Agreement, Clariance hereby grants Users who request a Time-Limited Free Trial Access a limited, non-commercial, non-exclusive, non-sublicensable, non-assignable, license to use the Software (Services) and to access the Clariance® Monitance Web Site by login to the User’s Account which is uniquely identified by a Clariance® Monitance Account ID. The Clariance Monitance Account ID is provided for by Clariance to Users who sent Clariance a request for a Trial Account.
It is at the discretion of Clariance to provide trial accounts to Users who sent Clariance a request for such account. Clariance may disable or delete a Trial Account at any time and without giving any reason to the User.
2.3. The Customer agrees that Clariance will (but not obliged), in the course of its normal business, proceed with the development of the Clariance Portal (Server part of the Monitance solution) and may release the modifications and new versions without notice or liability at any time.
2.4. The Customer agrees that Clariance will (but not obliged), in the course of its normal business, proceed with the development of the Monitance Agent. This new Monitance Agent will be made available to the customer via the Monitance Portal whereby
i. Modifications (Maintenance Release) are free of charge
ii. New Versions may be payable, at Clariance’s decision, and need to be purchased
2.5. Clariance may also impose limits on certain features without notice or liability.
2.6. Browser Compatibility: Clariance® Monitance complies with the HTML/XHTML standards and therefore is compatible with specific web browsers only. Clariance publishes this list of compatible web browsers on their sites www.Clariance.eu and/or www.Monitance.com. Clariance cannot be held responsible for any incompatibilities arising from the use of any other web browser other than those recommended by Clariance.
2.7. The initial term of this agreement will start on the date the Customer accepted the terms of the agreement by clicking the ACCEPT button and shall continue indefinitely unless terminated by either the Customer or Clariance within the terms of this agreement.
2.8. No Modifications: The customer will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Clariance® Software or any part thereof except to the extent permitted by law.
2.9. No Removal of Notices: The Customer agrees that he will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Clariance’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
3. Warranties, Disclaimers and Limitation of Liability
3.1. Clariance warrants that the Software will conform in all material respects to the Specification, as described on the website www.Monitance.com, for a period of 90 days from the date of this agreement (Warranty Period). If, within the Warranty Period, the Customer notifies Clariance in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having used the Software outside the terms of this agreement, for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by Clariance, Clariance shall, at Clariance’s option, do one of the following:
i. replace the Software; or
ii. repair the Software; or
iii. terminate this agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to date of termination),
provided the Customer provides all the information that may be necessary to assist Clariance in resolving the defect or fault, including sufficient information to enable Clariance to re-create the defect or fault.
3.2. To the fullest extent permissible pursuant to applicable law, Clariance disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of satisfactory quality, merchantability or fitness for use for a particular purpose or the warranty of non infringement.
Without limiting the foregoing, Clariance does not represent or warrant that:
i. the use of the Software and the delivery of the Services will be accurate, reliable, uninterrupted, secure, without delay or error-free;
ii. defects in the Software and Sites will be corrected;
iii. the Sites or the server that makes it available are free of viruses or other harmful components.
Limitation of liability: in no event shall Clariance, its affiliates, its licensors or the Clariance staff be liable, whether in contract, warranty, tort (including negligence), or any other form of liability for:
i. any indirect, special, incidental or consequential damages (including without limitation any loss of or corruption to data, interruption, computer failure or pecuniary loss), arising out of the use or inability to use the Clariance Monitance, that may be incurred by the Customer ;
ii. any loss of data, income, goodwill, business or profits (whether direct or indirect) that may be incurred by the customer; and
iii. Any claim, damage, or loss which may be incurred by the Customer as a result of (a) the availability of merchants’ Software, websites and/or any other third party websites, (b) any reliance placed by you on any advertising, products, services or other content or materials on, or available from, such third party websites; or (iii) any of the Customers transactions with merchants.
The above limitations on Clariance liability to you shall apply whether or not Clariance, its affiliates or the Clariance staff have been advised of the possibility of such losses or damages arising.
Nothing in this agreement is intended to exclude or restrict or shall be construed as excluding or restricting the liability of Clariance for (i) the death or personal injury caused by the negligence of Clariance, the Clariance staff or its agents, or (ii) any liability which cannot be limited or excluded by law.
3.3. Your Own Risk: You acknowledge and agree that the entire risk arising out of Your use of the Clariance® Monitance remains with You, to the maximum extent permitted by law.
3.4. Jurisdiction’s Limitations: As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to the Customer. In such event the liability will be limited to the maximum extent possible within the applicable legislation.
4. Intellectual Property Rights (IP Rights)
The Customer acknowledges that any and all IP Rights in the Clariance Monitance, the Clariance Software, the Clariance Website and the Clariance Promotional Materials are and shall remain the exclusive property of Clariance and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to the Customer, or to vest any such IP Rights in. The Customer is only entitled to the limited use of the Software granted to the Customer in this Agreement. The Customer will not take any action to jeopardize, limit or interfere with Clariance’s IP Rights. Any unauthorized use of Clariance’s IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
5. Third Party Sites
The Sites may include hyperlinks to other websites and contents and introduce the Customer to various third party merchants (“Merchant(s)”).
The Customer use of each of these third party websites is subject to the terms and conditions posted on the applicable website. Clariance has no control over such third party websites and the inclusion on the Sites of a hyperlink to any third party website is not an endorsement by Clariance of such website, or to any content, products or services available on it.
The Customer acknowledges and agrees that Clariance is not involved in any transactions between the Customer and any Merchant whose products and/or services are listed on the Sites. Clariance does not control, is not responsible for and does not guarantee: (i) the pricing, quality, performance, availability or terms and conditions of purchase of products or services provided by the Merchant; (ii) any payment transactions, delivery, returns or after sales activities related to the products or services purchased on the Merchants’ websites; (iii) the availability of the Merchant’s websites; (iv) the completeness, truth or accuracy of any advertising or other materials on, or available from, the Merchants’ websites, nor any listing or other content about such products and services displayed on the Sites; (v) links to the Merchants’ websites that are featured on the Sites.
Any questions, complaints, or claims related to any product or service provided by a Merchant should be directed to the applicable Merchant.
6. Online Behaviour
6.1. Please exercise respect when participating in any of Clariance’s community features such as Forums, Blogs, Email functions, etc. The Customer may not submit or publish through Clariance any User Materials that are libellous, defamatory, pornographic, an invasion of privacy, obscene, abusive, illegal, racist, offensive, harmful to a minor or an infringement on any intellectual property rights of a third party or would otherwise violate the rights of any third party. Furthermore, the Customer may not submit or publish User Materials through Clariance that solicit funds or services, contain advertising or include programs that contain viruses or any other programs designed to impair the functionality of any computer.
The Customer shall not copy, post or use text, photos, pictures, images or any other content from any third party or source (“Third Party Content”) without specific permission from the owner. Such Third Party Content may be protected by intellectual property laws and the owners of the intellectual property rights in such content may object to its use. The Customer must not use any Third Party Content without first obtaining the permission of the owner of the intellectual property rights in such content.
If Clariance receives any notification that any Third Party Content or any User Materials that you post or use are inappropriate, infringes any rights of any third party, or if Clariance wishes to remove any Third Party Content or User Materials posted by you for any reason whatsoever, Clariance reserves the right to automatically remove any such content for any reason immediately or within such other timescales as may be decided from time to time by Clariance in its sole discretion. The content shall be taken down without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved. The Customer acknowledges and agrees that Clariance is under no obligation to put back such content at any time.
6.2. Lawful purposes: The Customer agrees to use the Clariance® Monitance solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any content which is not intended for You; (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Clariance Monitance; (c) send any unsolicited communication not permitted by applicable law (d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; or (f) use (including as part of your User Name) any material or content that is subject to any third party proprietary rights, unless you have a license or permission from the owner of such rights.
6.3. Representations: The Customer represents and warrants that he’s authorized to enter into and comply with this agreement. Furthermore, The Customer represents and warrants that he will at any and all times meet with the obligations under this agreement, as well as any and all laws, regulations and policies that may apply to the use of the Clariance® Monitance, the Clariance Services and/or the Clariance Website.
6.4. Indemnification: The Customer agrees to indemnify, defend and hold Clariance and its affiliates harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of the (a) violation or breach of any term of this agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Clariance Monitance.
6.5. Utilization of Your Computer: If Your use of the Clariance® Monitance is dependent upon the use of a processor and bandwidth owned or controlled by a third party, You acknowledge and agree that Your license to use the Clariance® Monitance is subject to You obtaining consent from the relevant third party for such use. You represent and warrant that by accepting this Agreement and using the Clariance® Monitance, You have obtained such consent.
Certain parts of the Sites may ask for written suggestions or problem reports such as using our contact form, problem report form (“Submissions”) or change suggestions (“Change Requests”). In such a case, please read carefully the specific terms, which govern those Submissions (“Additional Terms”). In the absence of Additional Terms, the Clariance Terms and Conditions shall govern the Customer’s legal rights with respect to those Submissions.
The Submissions and Change Requests shall be deemed the property of Clariance. Clariance shall exclusively own all now known or hereafter existing rights to the Submissions and Change Requests throughout the universe in perpetuity and shall be entitled to use the Submissions and Change Requests for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions or Change Request. In any event, any Submissions and Change Request the Customer send to Clariance will not be treated as confidential and Clariance shall not be liable for any disclosure of the Submissions or Change Request.
8. Payment and Billing
8.1. Clariance provides the registered user online services, Clariance® Monitance, over Internet and makes the service available under a fee.
Because Clariance® Monitance is Web based, it requires the use of a password, a valid email address. Therefore, at a minimum, we require such necessary information during the registration process.
Except for the Trial Account License, the Customer agrees
i. to provide Clariance with accurate billing information and to keep this information up to date.
ii. To give Clariance the right to charge his credit card or to bill him via other payment methods, for every fee connected with the current agreement such as the use of Monitance or fees for the provision of SMS.
iii. Clariance to invoice the Customer monthly for the use of the Service. The Customer shall pay the invoices received from Clariance within 30 days from the date of the invoice.
8.2. All fees are exclusive of VAT, which shall be charged at the applicable rate.
8.3. If the Customer fails to pay any amount payable by it under this agreement, Clariance shall be entitled (but not obliged) to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of 3% per annum above the base rate of the Central Bank of Luxembourg. Such interest shall accrue on a daily basis and be compounded quarterly.
9.1. The Customer may terminate the agreement with Clariance at any time
i. on written notice by e-mail to Clariance (support@Clariance.eu);
ii. by deleting the Account on the Clariance Portal.
9.2. Clariance may terminate its agreement with the Customer at any time if the Customer has breached any term or condition of this Agreement. In such event, no notice shall be required by Clariance to effect such termination.
9.3. Notwithstanding clause 9.2, Clariance may at any time terminate this agreement for any reason by giving written notice to the Customer via e-mail and/or via the Monitance Portal.
9.4. The Customer acknowledges and agrees that in NO EVENT termination will allow the Customer to claim any fee reimbursement by Clariance.
9.5. Upon termination of this Agreement, the Customer agrees
i. that all rights granted to the Customer under this agreement will cease;
ii. to cease all activities authorised by this agreement;
iii. to pay immediately to Clariance any sums due to Clariance under this agreement;
iv. to cease to use the Service by de-installing all the agents running on the Customer IT infrastructure; and
v. to destroy immediately or return to Clariance (at Clariance’s option) all copies of the Software then in its possession, the User Materials together with all backup copies, modifications, printed or written materials, and merged portions in any form.
10. Force majeure
Neither party will be liable for any failure or delay in its performance under this Agreement due to reasons beyond its reasonable control, including acts of war, acts of God, earthquake, flood, riot, embargo, sabotage, governmental act or failure of the Internet.
For the avoidance of doubt, nothing in clause 9 shall excuse the Customer from any payment obligations under this agreement.
11. Not Fault Tolerant
Monitance and the Software may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the software products could lead to death, personal injury, or severe physical, property or environmental damage.
12. Local restrictions:
The Clariance Portal is controlled and operated by Clariance from its offices in Luxembourg. Clariance does not represent that the Clariance Website is appropriate or available for use elsewhere. Access to this website may not be legal by certain persons or in certain countries. If you access the website from outside Luxembourg, you are responsible for compliance with the laws of your jurisdiction.
The services provided on this website are not provided to and should not be used by any person or legal entity accessing from or domiciled in the United States or Canada. Any person or legal entity in respect of whom this principle applies MUST NOT access or use these services.
13. Data Protection
13.1. Personal information : Because of the nature of our product, the Customer needs a Clariance Account to access Clariance Monitance. Clariance must collect personal information from users during the registration process, including first and last names, a valid credit card to process payment for service (if payment via credit card is desired), an email address and contact information. Your Clariance Monitance account is protected by your Account ID, your Login and your Password. You can change your Login and Password through the Clariance Monitance “Profile Settings” pages.
13.2. The Customer email address may be used to send issues and feedbacks regarding the monitored Infrastructure and periodic information about Clariance® Monitance, but only upon your express consent. To ensure the quality of our product, we reserve the right to maintain data, evaluation and feedback records indefinitely.
13.3. The Customer acknowledges that Clariance Monitance stores, processes and maintains system IT relevant data, contact lists and other data you enter related to your account for the purpose of complying with its obligations under this agreement. Clariance’s servers record data about resource utilization (such as CPU, memory, network and storage utilization) and event data. The data will, after reception, become the propriety of Clariance.
13.4. The Customer furthermore acknowledges that, similar to other web services, Clariance records personal information such as account activity, data displayed or clicked on (including UI elements); and other log information (including browser type, IP-address, date and time of access, cookie ID, and referrer URL). This information is captured for the sole purpose of securing and improving Clariance Monitance and to track availability and speed of service.
13.5. Clariance shall not disclose personal data to third parties, but may process such data in duly anonymised and aggregate form for purposes such as internal statistics, commercial sale and promotion, including but not limited to blog posts.
13.6. Clariance will take all steps reasonably necessary to ensure that personal data is treated securely.
13.8. In addition to required member information, Clariance may conduct surveys and ask users to volunteer demographic information to be used on an aggregate basis for internal market research, joint research projects with outside companies involved in product development. Clariance uses such information to better focus our product and personalize the scope of services offered to each individual user.
14. Confidentiality and publicity
14.1. Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party, any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party.
14.2. The provisions of clause 13 shall remain in full force and effect for 1 year after the termination of this agreement for any reason.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
In the event any provision of these agreement is held by a court or other tribunal of competent jurisdiction to be illegal and/or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the other provisions of these agreement will remain in full force and effect.
17. Titles and headings
The titles and headings of the sections and paragraphs of these Terms & Conditions are exclusively for convenience and shall not be taken as defining or limiting in any way the scope of application or the meaning of the section or paragraph to which they refer.
Clariance may amend this agreement from time to time and shall notify such amendments to the Customer via e-mail and/or via the Monitance Portal.
19. Third party rights
No term of this agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this agreement.
Any notice required to be given pursuant to this agreement shall be in writing, and shall be sent to the other party by first-class mail or e-mail.
21. Entire agreement
This agreement, the website www.Clariance.eu and www.Monitance.com, in so far as it describes the Specification and the Software, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
22. Governing law and jurisdiction
This agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of Luxembourg, and shall be subject to the jurisdiction of the courts of the district of Luxembourg.
Clariance, Clariance® and Monitance® are registered trade marks in some jurisdictions.
The content and compilation of contents included on Clariance’s and Monitance’s websites, such as text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of Clariance S.à R.L. and are protected by international copyright laws.
25. More information
If you have any questions about this agreement, the practices of this site, or your dealings with this Web site, you can contact:
Attn: Privacy Management for Clariance
Clariance S.à R.L.
9 avenue des Hauts-Fourneaux