Clockwork – Terms of Service
Last Updated: June 11th, 2020
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “ACCEPT TERMS” BUTTON, REGISTERING FOR A CLOCKWORK ACCOUNT, OR ACCESSING OR USING THE CLOCKWORK SERVICE, OR BY DOWNLOADING, SUBMITTING OR POSTING ANY CONTENT FROM, OR ON, OR THROUGH THE CLOCKWORK SERVICE, OR BY ENTERING INTO A SERVICE AGREEMENT OR STATEMENT OF WORK WITH CLOCKWORK, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE CLOCKWORK SERVICE OR SITE CONTENT. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
“Authorized User” means an employee or contractor of Customer that has (i) been assigned a unique username-password combination to access and use the Clockwork Services, and (ii) registered online to access and use the Clockwork Services, as described under “Account Registration” below. Each Authorized User shall be subject to these Terms of Service.
“Content” means text, graphics, photos, software, audio, video, information or other materials.
“Customer” means an Authorized User that is a company or other legal entity, rather than an individual.
“Clockwork Content” means Content that Clockwork makes available through the Site or Clockwork Service, including any Content licensed to Clockwork from a third party, but excluding User Content.
“Fees” means the fees described in the Customer’s Service Agreement or Statement of Work.
“Hosting Services” means any third-party service that Clockwork uses or may use to provide the Clockwork Services.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“User Content” means Content that an Authorized User posts, uploads, publishes, submits or transmits to be made available through the Clockwork Service.
“Site Content” means Clockwork Content and User Content.
“Software” means any Clockwork or third-party software used by Clockwork to provide the Clockwork Services.
Clockwork reserves the right, at its sole discretion, to modify, discontinue or terminate the Clockwork Service or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms of Service or on the Site. By continuing to access or use the Clockwork Service after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Clockwork Service.
Certain portions of the Clockwork Service may, or may in the future, have different terms and conditions posted on the Site or may require you to agree with and accept additional terms and conditions. Clockwork may, in its sole discretion, make premium or different applications, software or services available to you that is subject to different terms and conditions and narrower licenses than as set forth therein. If there is a conflict between these Terms of Service and terms and conditions posted for a specific portion of the Clockwork Service, the latter terms and conditions shall take precedence with respect to your use of or access to that portion of the Clockwork Service.
If you are a party to a Service Agreement or Statement of Work between you and Clockwork (a "Service Agreement" or a “Statement of Work”), these Terms of Service shall begin on the Effective Date of the Service Agreement or Statement of Work and, unless terminated pursuant to a Termination for Cause (as such term is defined below), shall continue through the term set forth in the Service Agreement or Statement of Work (the “Term”) and will automatically renew for a successive term of equal length following the end of each Term, unless you notify Clockwork in writing, not less than ninety (90) days prior to the end of the then current Term, of your intention not to renew. For the avoidance of doubt, Clockwork may, in its sole discretion, increase the price you pay by up to 5% for each successive renewal term hereunder.
Either party to a Service Agreement or Statement of Work may, by written notice, request any changes, additions, deletions, or modifications to any Service Agreement or Statement of Work. No changes to a Service Agreement or Statement of Work will be effective until a written amendment has been signed by both Parties. If any such change affects the amount due or the time of performance thereunder, the Parties shall negotiate in good faith a mutually acceptable appropriate adjustment.
In the event of conflict or inconsistency between these Terms of Service and those of any Service Agreement or Statement of Work, the Service Agreement or Statement of Work shall control.
By accessing or using the Clockwork Service you represent and warrant to Clockwork that: (i) you are of legal age to form a binding contract; (ii) all registration information you submit is accurate, current and complete; (iii) you will maintain the accuracy and completeness of such information; (iv) if you are accepting these Terms of Service on behalf of a company or other legal entity, you have the authority to bind that company or legal entity to these Terms of Service. You also certify that you are legally permitted to use and access the Clockwork Service and take full responsibility for the selection and use of and access to the Clockwork Service. These Terms of Service are void where prohibited by law, and the right to access the Clockwork Service is revoked in such jurisdictions.
In order to access the Clockwork Service, you must register to create an account (“Account”) and become an Authorized User. When registering with Clockwork you agree to: (a) provide true, accurate, current and complete information about yourself (or, if applicable, the Customer you represent) as prompted by the Clockwork Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Clockwork Service (or any portion thereof).
You may not authorize any third party (other than, if applicable, the employees, consultants or agents of the Customer you represent) to access or use the Clockwork Service on your behalf. You are responsible for maintaining the confidentiality of the user ID and password, and are fully responsible for all activities that occur under your user ID or password. You agree to immediately notify Clockwork of any unauthorized use of your user ID or password or any other breach of security. Clockwork cannot and will not be liable for any loss or damage arising from any unauthorized use of your account. Authorized User may access and use the Clockwork Services solely for its internal business purposes and such access and use is expressly limited to the number of Authorized Users for which Customer has paid Fees in accordance with the Service Agreement or Statement of Work. Clockwork reserves all rights not granted to Authorized User pursuant to these Terms of Service.
By providing us with your email address, you agree to receive all required notices electronically, to that email address. From time to time, Clockwork will use this email address to send you notifications about product updates and improvements, company news and events, and updates from our community.
If the Customer requests Clockwork to perform any services that are different from or in addition to the Clockwork Services set forth herein (“New Services”), and Clockwork is willing to provide such different or additional services, Clockwork shall provide a written quote to the Customer listing the fees for such requested New Services (“New Service Fees”). If Customer accepts such quote in writing within fifteen (15) days: (a) Clockwork shall perform the New Services; (b) the Service Agreement or Statement of Work shall be adjusted to reflect the New Service Fees; and (c) such New Services shall be deemed Clockwork Services.
Fees and Payment
All Fees paid for the Clockwork Service are non-refundable and non-transferable except as expressly provided in these Terms of Service. All Fees and applicable taxes, if any, are payable in United States dollars. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of Clockwork Service and/or any related transactions (except for taxes assessed on Clockwork’s net income or personal property). If for any reason Clockwork pays any such taxes, duties or excises, you will reimburse Clockwork for such taxes, duties or excises, other than taxes on Clockwork’s net income.
Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of these Terms of Service. Customer may provide a copy of the Terms of Service to its Authorized Users in the course of carrying out its obligations under this section. Customer shall promptly notify Clockwork of any suspected or alleged violation of the terms and conditions of these Terms of Service and shall cooperate with Clockwork with respect to: (a) investigation by Clockwork of any suspected or alleged violation of these Terms of Service and (b) any action by Clockwork to enforce the terms and conditions of these Terms of Service. Clockwork may suspend or terminate without notice any Authorized User’s, or if necessary, Customer’s, access to the Clockwork Services in the event that Clockwork determines that such Authorized User has violated the terms and conditions of these Terms of Service, and may without notice remove any content (i) that violates this Terms of Service or (ii) if Clockwork receives complaints concerning any illegality or infringement of third party rights in such content, including in all cases set forth above during any investigation of any suspected or alleged violation of this Terms of Service or any action by Clockwork to enforce the terms and conditions of this Terms of Service. Violation of any of the General Prohibitions set forth in this Terms of Service shall be deemed a material breach. Customer shall be liable for any violation of this Terms of Service of by any Authorized User.
Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Clockwork Services is dependent upon access to telecommunications and internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and internet services and other hardware and software required to access and use the Clockwork Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Clockwork shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
Clockwork Service. Clockwork shall own and retain all right, title, and interest in and to the Clockwork Service (except for any licensed content and software components included therein). Authorized User agrees not to reverse engineer, decompile, distribute, license, sell, transfer, disassemble, copy, alter, modify, or create derivative works of the Clockwork Service or otherwise use the Clockwork Service in any way that violates the use restrictions contained in these Terms of Service. Clockwork does not grant to Authorized User any license, express or implied, to the intellectual property of Clockwork or its licensors. Authorized User further acknowledges and agrees that any information regarding the design, “look and feel”, specifications, components, functionality or operation and payment terms and pricing (if applicable) of the Clockwork Service is considered the confidential and proprietary information of Clockwork (collectively “Clockwork Confidential Information”).
User Data. Customer and Authorized User shall retain all right, title and interest in and to (a) all graphics, images, files, data and other information transmitted by Customer and Authorized User to Clockwork in connection with its use of the Clockwork Service and (b) reports and other materials generated by the Clockwork Service following such transmission (collectively, “User Data”), provided, however, that Customer and Authorized User hereby grant to Clockwork a worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Customer and Authorized User ‘s use of the Clockwork Service solely for purposes of (x) maintaining and improving the Clockwork Service and (y) providing Customer and Authorized User with access to special product offers and promotions, (ii) non-identifiable, anonymous, aggregated data regarding Customer and Authorized User ‘s use of the Clockwork Service compiled by Clockwork (iii) providing parties involved in a Customer’s project with archival copies of applicable Customer Data from the project, (iv) notifying Customer and other parties involved in Customer’s projects of changes in candidate job titles that relate to such projects and, (v) providing Customer or Authorized Users with access to and information about customized features, new functionality, and partner integrations.
Clockwork Logos and Designs. Clockwork’s graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Clockwork in the U.S. and/or other countries. Clockwork’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without Clockwork’s prior written permission.
Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Clockwork Service (“Feedback”). You acknowledge and agree that all Feedback will be the sole and exclusive property of Clockwork and you hereby irrevocably assign to Clockwork and agree to irrevocably assign to Clockwork all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Clockwork’s request and expense, you will execute documents and take such further acts as Clockwork may reasonably request to assist Clockwork to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Clockwork and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Clockwork in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Clockwork upon termination of these Terms of Service for any reason whatsoever. The term “Confidential Information” shall mean any information that is designated to be confidential or proprietary or that would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Clockwork Confidential Information includes, without limitation, the Clockwork Services and any Software whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Clockwork Services or the Software. Customer Confidential Information includes User Data. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of your relationship with Clockwork pursuant to a Service Agreement or Statement of Work, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than as permitted under these Terms of Service. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of these Terms of Service, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
You agree not to do any of the following:
Clockwork will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Clockwork may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Clockwork has no obligation to monitor your access to or use of the Clockwork Service, or to review or edit any User Content, but has the right to do so for the purpose of operating the Clockwork Service, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Clockwork Service, please notify Clockwork’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:
Clockwork’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
Clockwork ESE, Inc.
2030 Franklin St. Suite 202
Oakland, CA 94612
For clarity, only DMCA notices should go to the Clockwork, Inc. Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Clockwork via support@Clockworkrecruiting.com.
Links to Third-Party Websites
Use of Google APIs
The Clockwork Recruiting application makes use of Google APIs. Information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
Subscription Services - Adding User Seats to your Account
All Subscription services contracts Terms are annual or multi-annual, whether they are paid with annually or in monthly installments payment terms.
You can add to Seats licenses to your subscription at any time during your term. Adding Seats during the Term of your subscription will increase your Seat License Fee obligation for the remainder of the Term of your subscription. If you pay annually then you will be invoiced a pro rata amount based on the remainder of the term of your subscription. If you pay monthly then you will be invoiced a pro rated monthly bill for the remainder of the month in which you add a user and then you will receive an adjusted monthly invoice based on your monthly subscription rate.
Subscription Services - Deactivating User Seats
All Subscription services contracts Terms are annual or multi-annual, whether they are paid with annually or in monthly installments payment terms.
User Seats can be deactivated any time throughout the term of the annual subscription. You can still access that user Seat and can invite other users to utilize those Seats for the remainder of your subscription contract Term.
Deactivating a user does not change your Seat License Fee and Payment Obligation. The Seat License and Payment Obligation will remain until the end of your contract term. You will not be issued a refund (for annual payment terms) or have your monthly fee obligation lowered (for monthly payment terms) even if that Seat license is not utilized. For example, if you start with 2 contract Seats for a 1-year contract and then deactivate one user at of the second month of your contract, you will still have 2 contract Seats on your Account until the end of your annual subscription Term, and you will be responsible to pay for that unused Seat according to your contract terms.
At the end of your subscription term you can change the number of licensed Seats by providing written notice not less than ninety (90) days prior to your contract renewal date.
Termination and Account Cancellation
Termination for Cause. Clockwork or Customer may terminate their relationship under this Terms of Service and your Service Agreement or Statement of Work upon written notice if the other party materially breaches this Terms of Service and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days (“Termination for Cause”). Notwithstanding the foregoing, verbal, physical, written or other abuse (including threats of abuse or retribution) of any Clockwork customer, employee, member, or officer will result in immediate termination of your access to Clockwork Services.
Termination for Convenience. Customer may terminate their relationship with Clockwork for any reason by (i) providing Clockwork with ninety (90) days’ written notice. Clockwork may terminate the relationship created under this Terms of Service and your Service Agreement or Statement of Work for any reason by providing you ninety (90) days’ written notice.
Termination for Insolvency. Subject to Title 11 of the United States Code, if Customer becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then Clockwork may cease providing Clockwork Services to Customer and any of its Authorized Users upon sixty (60) days’ written notice.
THE CLOCKWORK SERVICE AND SITE CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, CLOCKWORK EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CLOCKWORK MAKES NO WARRANTY THAT THE CLOCKWORK SERVICE OR SITE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. CLOCKWORK MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, CLOCKWORK SERVICE OR SITE CONTENT PURCHASED OR OBTAINED THROUGH THE CLOCKWORK SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE CLOCKWORK SERVICE. CLOCKWORK DOES NOT WARRANT THE RESULTS OF USE OF THE CLOCKWORK SERVICE, AND CLIENT ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CLIENT SHOULD NOTE THAT IN USING THE CLOCKWORK SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD-PARTY INFRASTRUCTURES WHICH ARE NOT UNDER CLOCKWORK’S CONTROL (SUCH AS A THIRD-PARTY SERVERS AND THE INTERNET). CLOCKWORK MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLOCKWORK OR THROUGH THE CLOCKWORK SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE CLOCKWORK SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE CLOCKWORK SERVICE. YOU UNDERSTAND THAT CLOCKWORK DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE CLOCKWORK SERVICE, NOR DOES CLOCKWORK MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE CLOCKWORK SERVICE. CLOCKWORK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE CLOCKWORK SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE CLOCKWORK SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE CLOCKWORK SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE CLOCKWORK SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Indemnification by Customer. Customer shall defend (or settle), indemnify and hold harmless Clockwork, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any claim (including any third-party claim) that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or an Authorized User’s use of the Clockwork Services (other than any claim for which falls under Indemnification by Clockwork); (ii) Customer or any Authorized User has used the Clockwork Services in a manner that violates the Terms of Service; or (iii) arises from Customer’s breach of any representation and warranty made by Customer under this Terms of Service. Customer’s obligations under these Terms of Service are contingent upon: (a) Clockwork providing Customer with prompt written notice of such claim and (b) Clockwork providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim.
Indemnification by Clockwork. Clockwork shall defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Clockwork Services infringe or misappropriate the Intellectual Property Rights (other than patent rights, including patent applications and disclosures) of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. Clockwork’s obligations under these Terms of Service are contingent upon: (a) Customer providing Clockwork with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Clockwork, at Clockwork’s expense, in the defense and settlement of such claim; and (c) Clockwork having sole authority to defend or settle such claim. In the event that Clockwork’s right to provide the Clockwork Services is enjoined or in Clockwork’s reasonable opinion is likely to be enjoined, Clockwork may obtain the right to continue providing the Clockwork Services, replace or modify the Clockwork Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Terms of Service without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF CLOCKWORK AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE CLOCKWORK SERVICES. Clockwork shall have no liability under these Terms of Service to the extent that any third-party claims described herein are based on use of the Clockwork Services in a manner that violates this Terms of Service or the instructions given to Customer by Clockwork.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE CLOCKWORK SERVICE AND SITE CONTENT REMAINS WITH YOU. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER CLOCKWORK OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CLOCKWORK SERVICE OR SITE CONTENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, CLOCKWORK SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR CLOCKWORK SERVICE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF CLOCKWORK SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SITE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE CLOCKWORK SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE CLOCKWORK SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CLOCKWORK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL CLOCKWORK’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF CLOCKWORK SERVICE OR FROM THE USE OF OR INABILITY TO USE THE CLOCKWORK SERVICE OR SITE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO CLOCKWORK FOR USE OF THE CLOCKWORK SERVICE OR CONTENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLOCKWORK AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Controlling Law and Jurisdiction
These Terms of Service and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Compliance with Laws
Clockwork, the Customer and any Authorized Users agree to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
Arbitration. Should a dispute arise out of or relating to these Terms of Service, the parties shall engage in good faith, informal dispute resolution for a minimum period of thirty (30) days to resolve the dispute. Should the parties fail to resolve such dispute informally, they shall engage in mediation with JAMS (as defined below), at their joint and equal expense. Should the mediation fail to resolve such dispute, the parties thereafter shall engage in binding arbitration conducted in accordance with the then-current Commercial Dispute Rules of JAMS/Endispute (“JAMS”) strictly in accordance with the terms of these Terms of Service and the substantive law of the State of California. The arbitration shall be held at the office of JAMS located in San Francisco, California, and it shall be conducted by one arbitrator, pursuant to JAMS arbitration rules, and shall be conducted in accordance with JAMS’ Optional Expedited Arbitration Procedures. The binding arbitration shall be at the parties’ joint and equal expense, with attorneys’ fees and costs to the prevailing party upon conclusion.
Relationship Between the Parties
Nothing in this Terms of Service shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
These Terms of Service constitute the entire and exclusive understanding and agreement between Clockwork and you regarding the Clockwork Service and Site Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Clockwork and you regarding the Clockwork Service.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Clockwork’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Clockwork may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: by Clockwork (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Except as described under Indemnification, the exercise by either party of any remedy under these Terms of Service will be without prejudice to its other remedies under this Terms of Service or otherwise.
Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Terms of Service may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, and notwithstanding any provision in this Terms of Service to the contrary, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
The headings in this Terms of Service are for the convenience of reference only and have no legal effect
The failure of Clockwork to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Clockwork. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
If you have any questions about these Terms of Service, please contact Clockwork at email@example.com. You acknowledge and agree that when contacting Clockwork, whether by email, chat, or otherwise, you will not include any personally identifiable information in your communications, and that if such information is included in your communications with Clockwork, Clockwork will have no legal obligation or liability with regard to such information.