(a) “Administrator” shall mean a Subscriber (as defined in Section 1(i)) with authority to designate additional Authorized Users and/or Administrators, and commit the Subscriber to additional services from Themis.
- Exhibit A – Themis Service Level Commitments and Support Services
- Exhibit B – Themis Data Protection Addendum for GDPR Compliance
- Exhibit C – Themis Authorized Subprocessors
(c) “Authorized User” shall mean an individual subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
d) “Confidential Information” shall mean the Content (as defined in Section 1(e)) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
(e) “Content” shall mean any information you upload or post to the Service and any information provided by you to Themis in connection with the Service, including, without limitation, information about your Authorized Users or Registered Clients, as defined in Section 1(g).
(f) “Primary Subscriber” shall mean the Subscriber who initiated the Services offered by Themis and is assumed by Themis to have the sole authority to administer the subscription.
(g) “Registered Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized User.
(h) “Service” shall mean any software or services provided by Themis, including but not limited to Clio Manage, practice management software, and Clio Grow, customer relationship management (CRM) and client intake software.
(i) “Subscriber” shall refer to the purchaser of the Services provided by Themis and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
(j) “Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Themis’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.
2. Limited License & Use of the Service
2.1 Subscriber is granted a non-exclusive, non-transferable, limited license to access and use the Service.
2.2 Themis does not review or pre-screen the Content and Themis claims no intellectual property rights with respect to the Content.
2.3 Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Themis.
2.4 Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Themis, or any other software or service provided by Themis.
2.5 Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.6 Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.7 Except for the non-exclusive license granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with Themis.
2.8 Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). It is the responsibility of the Authorized User to determine if the Service being shared is appropriate for each Registered User. Themis reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.
2.9 Themis reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Themis shall provide Subscriber with 30-days notice of any modification that materially reduces the functionality of the Service, during which time an Administrator may cancel a subscription and receive a pro-rata refund for the unused portion of the subscription. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.
2.10 Themis reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days notice prior to any such suspension. Such notice shall be provided to you in advance by way of notification within the Service, email or other notification method deemed appropriate by Themis. Further, Themis shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Themis will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.11 Themis stores all Content on redundant storage servers. The Subscriber may elect to, at a regular interval, replicate all Content associated with the subscription to a third party storage service (“Escrow Agent”). The replicated Content (“Escrowed Data”) will be held under the terms of a separate agreement exclusively between the Subscriber and the Escrow Agent (“Escrow Agreement”). The Subscriber may also elect to replicate all Content associated with the subscription on its own storage device.
2.12 Subscriber grants to Themis a non-exclusive, royalty-free right during Subscriber’s use of the Service, to use the Confidential Information for the sole purpose of performing Themis’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Themis to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1.
2.13 Themis uses one code-base for all jurisdictions. Subscriber is required, using settings available within the Service, to configure the Service for its own jurisdiction and to verify that the settings meet the Subscriber’s requirements. Themis will highlight known features that may require Subscriber review.
3. Access to the Service
3.1 Subscriber is only permitted to access and use the Service if he/she is an Authorized User or a Registered Client. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
3.2 Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.3 The initial Administrator shall be the Primary Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
3.4 Administrators are responsible for all use of the Service by, and any other actions taken using, an account on the list of active Authorized Users associated with their subscription to the Service (even if the action is not taken by the Authorized User).
3.5 As between Themis and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. Upon Cancellation or Termination of Service as discussed in Section 10 below, Themis shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.
3.6 Subject to Section 3.7, all access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
3.7 Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:
(a) any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by these Terms of Service;
(b) to the maximum extent permitted by law, Themis shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Themis has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;
(c) Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. Themis, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Authorized User prior to suspension; and
(d) Themis reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice where Themis considers it appropriate for the security or performance of the Service.
4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.2 Themis and any third party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement; (b) in compliance with Section 7 of this Agreement, or (c) as otherwise authorized by you in writing.
5. Security and Access
5.1 Themis is responsible for providing a secure method of authentication and accessing its Service. Themis will provide mechanisms that:
(a) allow for user password management
(b) transmit passwords in a secure format
(c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
5.2 Subscriber will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.3 Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify Themis upon suspicion that a username and password has been lost, stolen, compromised, or misused.
5.4 At all times, Themis, and any third party vendors and hosting partners it utilizes to provide the Service, will:
(a) use information security best practices for transmitting and storing your Content, adhering to industry standards;
(b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
(c) ensure its host facilities maintain industry standards for security and privacy; and
(d) within thirty (30) days of a request by Subscriber, provide Subscriber with a (SOC2 or SOC3) audit report or industry standard successor report or a comparable description of its security measures in respect of the data center facilities used to host the Service and the Content. In order to obtain such a report, Subscriber must enter into an agreement with the third party provider of the report.
5.5 Themis shall report to Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that Themis reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Themis shall make such report within 72 hours after learning of the Security Breach.
5.6 In the event of a Security Breach, Themis shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (d) use commercially reasonable endeavours to mitigate any harmful effect of the Security Breach.
6. EU Data Protection
The parties agree to comply with the provisions of the Data Processing Addendum set out in Exhibit B.
7. Legal Compliance
7.1 Themis maintains that its primary duty is to protect the Content to the extent the law allows. Themis reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If Themis is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Themis will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Themis may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
7.2 Themis will only accept legal requests for production of Content or other Confidential Information through the procedures listed on https://www.clio.com/au/legal-service.
8. Managed Backup and Archiving
8.1 Themis’s managed backup services must be designed to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Themis shall ensure recovery of the last backup of lost or corrupted Content at no cost to you. Following any cancellation or termination of Service for any reason, Subscriber shall have ninety days to retrieve any and all Content.
9. Payment, Refunds, and Subscription Changes
9.1 Subscribers with paid subscriptions will provide Themis with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal, or other taxes which Subscribers agree to pay based on where the Subscriber is located. Invoices will include (i) subscription fees and (ii) all applicable sales, goods and services or value-added taxes, as amended from time to time, for the jurisdiction in which the Subscriber is located. In the event of updated tax rates, Themis will apply the new tax rate without notice to the Subscriber. In addition to any fees, the Subscriber may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
9.2 Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. Monthly Subscribers will thereafter be charged in advance each 30 days. Annual Subscribers will thereafter be charged annually on the anniversary date of the initial subscription charge. To the extent permitted by law and except as provided in this Agreement, all charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
Subscribers who purchased setup or professional services, like tailored live training, customized forms and documents, or migration services, must initiate those services within sixty (60) days (Service Window) following their purchase. Absent a separate invoice, the date of purchase for setup or professional services will be deemed to be the initial date of entry of a valid credit card for payment as required in Section 9.1. Failure of the Subscriber to initiate purchased setup or professional services within Service Window will result in those services no longer being available and no refund will be issued.
9.3 To the extent permitted by law and except as expressly provided by this Agreement, no refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.
9.4 There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
9.5 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Adding Authorized User subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes Themis to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
9.6 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
9.7 Subscriber is responsible for paying all taxes associated with the subscription to the Service. If Themis has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides Themis with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.8 Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Themis receives an amount equal to the sum it would have received had no such deduction or withholding been made.
10. Cancellation and Termination
10.1 Administrators are solely responsible for canceling subscriptions. An Administrator may cancel their subscription at any time by accessing the Service and visiting au.app.clio.com/settings/subscription/edit as applicable. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation URL within the Service. The Administrator may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by any other means.
10.2 Themis in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement or (b) create a Security Emergency.
10.3 If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Themis provides Subscriber with commercially reasonable notice of this violation; (iii) Themis uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Themis’s reasonable satisfaction within thirty (30) days of such notice, then Themis reserves the right to suspend access to the Service.
10.4 As required by Section 8 above (“Managed Backup and Archiving”), upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service. All Escrowed Data, if any, will continue to remain available for a period of six months upon cancellation or termination of a subscription in accordance with the terms of the Escrow Agreement.
11. Limitation of Liability
11.1 To the maximum extent permitted by law, except as provided in Section 13.2 below (“Indemnification”), Themis shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Subscriber by Themis. For any liability that cannot be excluded but can be limited, Themis’s liability is limited to Themis’s choice of re-supplying the services or paying the cost of re-supplying the services.
11.2 Subscriber agrees that Themis is not and will not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including without limitation, attorney fees) relating to this agreement. These disclaimers apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, whether those damages are foreseeable and whether Themis has been advised of the possibility of those damages. These disclaimers are not applicable to the indemnification obligation set forth in section 13.2 or in respect of liability which Themis may not lawfully exclude. Each provision of this agreement that provides for a limitation of liability, disclaimer of damages, or exclusion of damages is to allocate the risks of this agreement between the parties. This allocation is reflected in the pricing offered by Themis to Subscriber and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable from and independent of all other provisions of this agreement.
11.3 Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.
12. Disclaimer of Warranties
12.1 To the maximum extent permitted by law, Themis hereby disclaims all warranties of any kind, whether express, implied or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights with respect to any services provided by Themis. Nothing in this section 12.1 shall modify Themis’s obligation to indemnify Subscriber as required by section 13.2 of this agreement (“Indemnification”) or Themis’s non-excludable liability to consumers under the Australian Consumer Law or similar state or territory legislation.
12.2 Themis makes no warranty that its services when provided to Subscriber in digital or electronic format will be compatible with Subscriber computer and/or other equipment, or that these Services will be secure or error free. Nor does Themis make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 12.2 shall modify Themis’s obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or Themis’s obligation to indemnify you as required by Section 13.2(b) of this Agreement (“Indemnification”).
12.3 Themis hereby disclaims all warranties of any kind related to Subscriber’s hardware or software beyond the warranties provided by the manufacturer of Subscriber’s hardware or software.
13.1 Subscriber hereby agrees to indemnify and hold harmless Themis from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following:
a. Authorized Users’ breach of any obligation stated in this Agreement, and
b. Authorized Users’ negligent acts or omissions.
Themis will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber will undertake, at Subscriber’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Themis. Themis reserves the right to participate in the defense of the claim, suit, or proceeding, at Themis’ expense, with counsel of Themis’ choosing.
13.2 Themis shall defend, indemnify and hold Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party
a. alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. or Australian patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Subscriber:
(a) promptly gives written notice of the Claim to Themis (provided, however, that the failure to so notify shall not relieve Themis of its indemnification obligations unless Themis can show that it was materially prejudiced by such delay and then only to the extent of such prejudice); (b) gives Themis sole control of the defense and settlement of the Claim (provided that Themis may not settle any Claim unless it unconditionally releases Subscriber of all liability); and (c) provides to Themis, at Themis’s cost, all reasonable assistance. Themis shall not be required to indemnify Subscriber in the event of: (x) modification of the Service by Subscriber in conflict with Subscriber’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Themis to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use; or
b. arising out of or related to a violation by Themis of its obligations under Section 4 above (“Confidentiality”).
14.1 Technical support and training are available to Authorized Users with active subscriptions, and is available by telephone, email or electronic support ticket, as defined at support.clio.com/home and in Exhibit A.
14.2 Subscriber acknowledges and agrees that Themis may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
14.3 The Services may allow you to access or use or integrate with third party providers of products and services (“Third Party Services”). Such Third Party Services are not “Services” under this Agreement and are not subject to any terms related to Services, including related warranties, indemnities, service commitments or other obligations . The availability of any Third Party Services through the Services does not imply Themis’s endorsement of or affiliation with the provider. Access to and use of any Third Party Services are subject to the separate terms and conditions required by the providers of the Third Party Services. Themis does not control the Third Party Services and will have no liability to Subscriber in connection with any Third Party Service. Themis has no obligation to monitor or maintain any Third Party Service and may replace, disable or restrict access to any Third Party Service or cancel related integrations at any time, without notice. The calculation of downtime pursuant to Exhibit A does not include the unavailability of any integration to a Third Party Service. By using or enabling any third party service, subscriber expressly acknowledges that any liability and remedies related to a third party service is wholly governed by the applicable third party agreement and Themis disclaims all liability related to such third party service.
14.4 Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and, to the maximum extent permitted by law, Themis will not be liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Themis, with strict business reasons, may access and transfer the Content and only to provide Subscriber with the Service. Themis will make reasonable efforts to provide notice to Subscriber prior to such access and transfer. Themis’ actions will comply with its obligations under Sections 4 and 5 of this Agreement.
14.5 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
14.6 This Agreement constitutes the entire agreement between Authorized Users and Themis and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Themis (including, but not limited to, any prior versions of this agreement).
14.7 Themis reserves the right to amend this Agreement. In the event of material changes to the Agreement, Themis will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of any new terms.
14.8 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
14.9 Governing Law and Venue. This Agreement and your relationship with Themis shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the state of New South Wales, Australia and shall be considered to have been made and accepted in New South Wales, Australia, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of New South Wales in Sydney, and Subscribers consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.