Clockworks Terms of Service

August 30, 2019

IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.

These Clockworks Terms and Conditions (“Terms”) govern access to and use of the Clockworks Inc. (“Clockworks,” “Company,” “we” or “us”) web sites (collectively, the “Sites”), applications (collectively, “Apps”), and other workflow automation solutions (collectively with the Site and the Apps, the “Services”) by (i) visitors to the Sites and users of the Apps (collectively, “Visitors”), (ii) individuals or entities who either create an account on the Sites or in the Apps (“Account”) and thereby accept these Terms or otherwise contract for any of the Services directly with Clockworks by entering into a written customer agreement, order form or other contractual document signed by an authorized officer of Clockworks (a “Customer Agreement,” and such individuals or entities who create an Account or enter into a Customer Agreement being referred to herein as “Customers”), (iii) natural persons who are designated by Customers to use the Services on their behalf and under their Accounts (“Authorized Users”), and (iv) natural persons who Customers or Authorized Users designate to receive communications from all or a portion of the Services (together with Authorized Users, “Users”). Visitors, Customers, and Users maybe referred to in these Terms as “you” and “your” as applicable.

BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SERVICES IMMEDIATELY. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms.

1. UPDATES AND COMMUNICATIONS

1.1 We may revise these Terms or any additional terms and conditions that are relevant to a particular Service from time to time to reflect changes in the law, our policies, or to the Services. We will post the revised terms on the Sites with a “last updated” date. PLEASE REVIEW THE SITES ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.

1.2 You agree to receive all communications, agreements, and notices that we provide in connection with the Services (“Communications”), including, but not limited to, Communications related to our delivery of the Services and your purchase of or subscription to the Services, via electronic means, including by e-mail, text, in-app notifications, or by posting them on the Services. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.

1.3 Clockworks is constantly evolving our products and services to better meet the needs of our users. Because of this, we cannot guarantee the availability of certain product features or functionality. Clockworks reserves the right modify, replace or discontinue any part of the Services at any time.

2. OWNERSHIP

2.1 Intellectual Property. The Services contain materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties.

2.1.1 The Services, or parts thereof, are also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in any of the Services. You acknowledge that the Services contain original works that have been developed, compiled, prepared, revised, selected, and arranged by Clockworks and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and which constitute valuable intellectual property of Clockworks and others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Services, shall, as between you and Clockworks, at all times be and remain the sole and exclusive property of Clockworks.

2.1.2 The trademarks, logos, taglines, and service marks displayed on the Services (collectively, the “Trademarks”) are registered and unregistered Trademarks of Clockworks and third-party licensors. The Trademarks may not be used without Clockwork’s prior express written permission. Any rights not expressly granted in these Terms or in a Customer Agreement are reserved by Clockworks and its licensors.

2.2 Software Use Restrictions. Software available for downloading through the Services or third-party websites, including without limitation, the Apps (the “Software”) is the copyrighted work of Clockworks and its third-party licensors. Use of the Software is governed by these Terms, including the limited license granted in Section 5.1 below, and any specific terms included in the applicable Software package. Any rights not expressly granted in these Terms or in a Customer Agreement are reserved by Clockworks and its licensors.

3. RESTRICTIONS ON USE OF THE SERVICES

3.1 In your use of any and all Services you specifically agree not to engage in any activity that:

a) Is illegal or violates any federal, state, or local law or regulation;

b) Advocates illegal activity or discusses illegal activities with the intent to commit them;

c) Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;

d) Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;

e) Interferes with any other party’s use and enjoyment of the Services;

f) Attempts to impersonate another person or entity;

g) Is commercial in a way that violates these Terms, including but not limited to, using the Services for spam, surveys, contests, pyramid schemes, or other advertising materials;

h) Falsely states, misrepresents, or conceals your affiliation with another person or entity;

i) Accesses or uses the account of another User without permission;

j) Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;

k) Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features or part of the Services;

l) “Hacks” or accesses without permission any part of the Services not otherwise accessible to your Account or proprietary or confidential records of any Customer or User;

m) Improperly solicits personal or sensitive information from other Users including without limitation, credit card or financial account information or passwords;

n) Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Services, unless, and then only to the extent, permitted by applicable law without consent;

o) Removes, circumvents, disables, damages, or otherwise interferes with security-related features or features that enforce limitations on use of the Services;

p) Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Services, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as scraping;

q) Modifies, copies, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Services;

r) Uses the Services for benchmarking or to compile information for a product or service;

s) Downloads (other than through page caching necessary for personal use), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms, any applicable Customer Agreement, or with the prior written consent of Clockworks;

(t) Uses the Services or allows access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms or any applicable Customer Agreement.

u) Licenses, sub-licenses, sells, re-sells, rents, leases, transfers, distributes or time shares or otherwise makes any portion of the Services or then-current technical and functional documentation for the Services (“Documentation”) available for access by third parties except as otherwise expressly provided in these Terms or any applicable Customer Agreement;

v) Accesses or uses the Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allows access by a direct competitor of Clockworks; or

w) Attempts to do any of the foregoing.

3.2 You agree that Clockworks shall be entitled to determine in its sole discretion whether any of the activities under Section 3.1 have occurred and its determination shall be final and binding.

3.3 Any violation of Section 3.1 may, in our sole discretion, result in termination of your use of and access to the Services effective immediately.

3.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Services for violations of these Terms or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.

3.5 In the event you become aware of a violation of these Terms, we ask that you report it to us at https://getclockworks.com/support.

4. PRIVACY

You acknowledge that except as described in these Terms or an applicable Customer Agreement, the information you provide to us or that we collect will be subject to our Privacy Policy, which is hereby incorporated by reference.

5. ACCESS AND PAYMENT TERMS

5.1 Right to Use. Subject to these Terms and any applicable Customer Agreement, Clockworks will provide the Services to Customers and their respective Users in accordance with each such Customer’s Subscription Plan, and Clockworks hereby grants to each Customer a limited, non-exclusive, non-transferrable right and license during the applicable term of such Customer’s Subscription Plan, solely for its internal business purposes and in accordance with the Documentation and these Terms and any Customer Agreement between Clockworks and such Customer, to: (a) use the Services covered by such Subscription Plan; (b) implement, configure, and permit its Authorized Users to access and use the Services up to any applicable limits or maximums; (c) implement, configure, and permit other Users to receive communications from the Services up to any applicable limits or maximums; and (d) access and use the Documentation.

5.2 Authorized Users. Authorized Users of a Customer must be identified by a unique identifier and two or more natural persons may not use the Services as the same Authorized User. If the Authorized User or other User is not an employee of Customer, use of the Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the Services solely to support Customer’s internal business purposes.

5.3 Account Administrator. Customer may assign and expressly authorize an Authorized User(s) as its agent to manage Customer’s Account (an “Account Administrator”), and management of Customer’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, executing approved workflows, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions. Customer may appoint an employee, agent, or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.

5.4 Eligibility to Use. Customer, together with each Authorized User and other User, hereby represents and warrants that he, she or it: (a) is, if a natural person, of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms; and (b) is not located in, under the control of, or a national or resident of a U.S. embargoed country or territory and not a prohibited end user under Export Control Laws (as defined below). You acknowledge that you are not permitted to use the Services if you cannot make these representations.

5.5 Payment Terms.

5.5.1 Subscription Plan. The prices of the Services depend on the Subscription Plan selected as well as any changes instigated by Customer. Clockworks reserves the right to change the prices for Subscription Plans from time to time at its discretion upon advance notice. This alteration will not effect currently active Subscription Plans until the end of their applicable terms. The renewal of your Subscription Plan shall be deemed to be your acceptance of the new terms and conditions applicable to such Subscription Plan.

5.5.2 No Refunds. Customer will timely pay Clockworks all fees associated with its Subscription Plan, Account, or use of the Services, including, but without limitation, by Authorized Users and other Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OR UNDER A CUSTOMER AGREEMENT.

5.5.3 Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Subscription Plan either through the payment method you provide, such as a credit card, or through an intermediary provider, or if agreed in a Customer Agreement, via invoice. Customer must promptly notify Clockworks of any change in its payment information and must update its Account with any changes related to its payment information. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN WITH A PAYMENT METHOD, CUSTOMER AUTHORIZES CLOCKWORKS OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES. The Authorization continues through the applicable term of the Subscription Plan.

5.5.4 Late Fees & Collection Costs. If Clockworks does not receive payment from Customer’s payment method or payment when due under a Customer Agreement, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Clockworks to collect any amount that is not paid when due. Clockworks may accept payment in any amount without prejudice to Clockwork’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Clockworks may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from Clockworks.

5.5.5 Invoices. Clockworks will provide billing and usage information in a format we choose, which may change from time to time. Clockworks reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.

5.5.6 Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on Clockwork’s net income (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to, or use of the Clockwork’s Services. Taxes shall not be deducted from the payments to Clockworks, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Clockworks receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that Clockworks can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for Tax purposes. Clockwork’s and Customer’s obligations under this Section shall survive the termination or expiration of these Terms.

5.6 Trial Subscriptions.

5.6.1 Clockworks may from time to time offer new functionality, new Services, and/or additional Services on a trial basis (“Trial Subscriptions”) often for a reduced price or with certain fees and expenses waived. You may be presented with additional terms and conditions when registering for a Trial Subscription, and any such additional terms and conditions are hereby incorporated into these Terms by reference and are legally binding.

5.6.2 Clockworks reserves the right to reduce the term of a Trial Subscription or end it altogether without prior notice.

5.6.3 The version of the Services that is available for a Trial Subscription may not include or allow access to all features or functions and may include certain features or functions in a beta or test form.

5.6.4 Notwithstanding any other provision of these Terms , including without limitation the warranties described under “Warranties and Disclaimers” below or any service-specific terms and conditions applicable to a particular Service, during a Trial Subscription, the Services are provided “AS IS” and “as available” without any warranty that may be set forth in these Terms, and CLOCKWORKS DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND CLOCKWORK’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO USE OF THE TRIAL SUBSCRIPTION IS $100.

6. DATA

6.1 Data Generally. You shall be responsible for data that you provide or use in connection with the Services. You are solely responsible for determining the suitability of the Services for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Services.

6.2 Personal Data. Customer warrants that its collection and use of any personal information or data provided while using the Services complies with all applicable data protection laws, rules, and regulations. Customer and its Authorized Users acknowledge that Clockworks may process such personal data in accordance with the Privacy Policy.

7. TERM AND TERMINATION

7.1 Termination – Visitors. A Visitor may terminate its use of the Services at any time by ceasing further use of the Services. Clockworks may terminate your use of the Services and deny you access to the Services in our sole discretion for any reason or no reason, including for violation of these Terms.

7.2 Term and Termination – Customers.

7.2.1 Suspension of Access to Services. Clockworks may suspend any use of the Services, remove any content or disable or terminate any Account or User that Clockworks in good faith believes violates these Terms or any Customer Agreement.

7.2.2 Initial Term and Automatic Renewals. Subscription Plans commence for an Initial Term selected when a Customer creates an Account or enters into a Customer Agreement (the “Initial Term”). Each Initial Term will automatically renew for successive renewal terms of the same length as the Initial Term (each a “Renewal Term”), unless, either party gives notice of cancellation to the other party prior to the start of the next Renewal Term. Customer may give notice of termination at getclockworks.com/support/subscription.

7.2.3 Termination by Customer. You may terminate your Subscription Plan at any time, however, all fees and charges for the then current Initial Term or Renewal Term, as applicable, will remain due and payable and fees and charges previously paid shall be nonrefundable.

7.2.4 Default; Termination for Cause. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to Clockworks; (b) it or a User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the Services or any Customer Agreement; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the Services by the Customer (or its Users) creates legal risk for Clockworks or presents a threat to the security of the Services or our other Customers or Users. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us.

7.3 Termination - Users. As a User your use of the Services is subject and subordinate to the owner of the Account under which you are registered. In the event that account is terminated or suspended, your use will also be terminated or suspended, as the case may be. In addition, Clockworks may terminate your use of the Services and deny you access to the Services in our sole discretion for any violation of these Terms.

7.4 Effect of Termination. If these Terms expire or are terminated for any reason: (a) Customer will pay to Clockworks any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of Customer’s liabilities to Clockworks that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer and its Users with respect to the Services and intellectual property will immediately terminate; (d) Clockwork’s obligation to provide any further services to Customer under these Terms (including access of Users to the Services) will immediately terminate, except any such services that are expressly to be provided following expiration or termination of these Terms; and (e) the provisions of the Sections entitled “Ownership,” “Restrictions on Use of the Services,” “Privacy,” “No Refunds,” “Recurring Charges,” “Late Fees and Collection Costs,” “Tax Responsibility,” “Trial Subscriptions,” “Data,” “Effect of Termination,” “Warranties and Disclaimers,” “Indemnification Obligations,” “Limitations of Liability,” and “General” will survive.

8. WARRANTIES AND DISCLAIMERS

8.1 Warranties by Clockworks. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. CLOCKWORKS AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (COLLECTIVELY, “CLOCKWORKS PARTIES”): (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM YOUR USE OR THE USE OF YOUR USERS OF THE SERVICES.

THE CLOCKWORKS PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SERVICES HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES CONTENT AND ASSUMES NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SERVICES; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CLOCKWORKS TO ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.

THE CLOCKWORKS PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, AND THE CLOCKWORKS PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES.

8.2 Warranties by Customers. Each Customer hereby represents and warrants to Clockworks that: (a) it has all requisite rights and authority to use the Services under these Terms and any Customer Agreement and to grant all applicable rights herein; (b) it is responsible for all use of the Services associated with its Account, including by Users; (c) it is solely responsible for maintaining the confidentiality of its Account names and password(s); (d) it agrees to immediately notify Clockworks of any unauthorized use of its Account of which it becomes aware; (e) it agrees that Clockworks will not be liable for any losses incurred as a result of a third party’s use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) it will use the Services for lawful purposes only and subject to these Terms; and (g) any information it submits to Clockworks is true, accurate, and correct.

9. INDEMNIFICATION OBLIGATIONS

You will defend, indemnify, and hold each of the Clockworks Parties harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Services or the access and use of the Services by your Users (if applicable); (b) violation of these Terms or any Customer Agreement by you or your Users (if applicable); (c) infringement of any intellectual property or other right of any person or entity by you or your Users (if applicable); (d) the nature and content of all your data processed by the Services; or (e) any products or services purchased or obtained by you or your Users (if applicable) in connection with the Services.

Clockworks retains the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against any of the Clockworks Parties. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

10. LIMITATIONS OF LIABILITY

10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, CLOCKWORKS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE CLOCKWORKS PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (a) USE OF THE SERVICES; (b) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (c) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES; (d) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (e) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; (f) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (g) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SERVICES; (h) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE CLOCKWORKS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR (i) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS OR OUR PRIVACY POLICY.

Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section may not apply to you.

10.2 Cap on Damages. THE TOTAL LIABILITY OF THE CLOCKWORKS PARTIES TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY OF THESE TERMS OR ANY CUSTOMER AGREEMENT BETWEEN YOU AND CLOCKWORKS OR TO YOUR USE OF ANY OF THE SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO CLOCKWORKS FOR THE SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.

10.3 Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.

10.4 Jurisdictional Limitations. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).

11. GENERAL

11.1 Third Party Content and Services. The Services may provide or require integration with, use of, or other links to, third-party web sites, services, or resources that are not controlled by Clockworks. We make no representations as to the quality, suitability, functionality, or legality of any such web sites, services, and/or resources, and you hereby waive any claim you might have against us with respect to such web sites, services, and resources. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any dealings you may have with such third-party web sites, services, or resources even if you access them through our Services.

11.2 Relationship. You and Clockworks are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of Clockworks or are otherwise authorized to bind or commit Clockworks in any way without Clockwork’s prior written authorization.

11.3 Export Control Laws. You acknowledge that the Services and any related products, information, documentation, Software, technology, technical data, and any derivatives thereof, that Clockworks makes available (collectively “Excluded Data”) is subject to export control laws and regulations of the United States (including, without limitation, the U.S. Export Administration Act and the sanctions regulations administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”)) and other jurisdictions (collectively “Export Laws”). You represent and warrant that you will not access, download, use, export, or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by Export Laws (including, without limitation, to any end user in a U.S. embargoed country or territory or an end user included on OFAC’s listing of Specially Designated Nationals or the U.S. Commerce Department’s Entity List or Denied Persons List) without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Services.

11.4 Assignability. You may not assign your rights or obligations under these Terms without Clockwork’s prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. Clockwork’s may freely assign its rights, duties, and obligations under these Terms.

11.5 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the Services will be effective only if it is in writing and sent using: (a) the Services; (b) by certified or registered mail; or (c) overnight courier, to the appropriate party at the address set forth in Customer’s registration information or on the Sites for Clockworks, with a copy, in the case of Clockworks, to legal@getclockworks.com. Customer or Clockworks may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given upon receipt if delivered using Services, two (2) business days following the date of mailing, or one (1) business day following delivery to an overnight courier.

11.6 Force Majeure. Except for any payment obligations, neither you nor Clockworks will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.

11.7 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

11.7.1 You agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms or any prior; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.

11.7.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at legal@getclockworks.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and Clockworks agree to use their reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with Clockworks, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

11.7.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms and any applicable Customer Agreement, the parties’ relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.

11.7.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms (and any related Customer Agreement), including but not limited to any claim that all or any part of these Terms (and any related Customer Agreement) is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

11.7.5 Filing a Demand. To an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) send one copy of the Demand for Arbitration to us at: legal@getclockworks.com.

11.7.6 Fees & Costs. If your claim(s) total is less than US $5,000.00, then: (a) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing; (b) Clockworks will reimburse your filing fees up to a maximum of US $1,500.00 unless the arbitrator determines that your claims are frivolous; and (c) Clockworks will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

11.7.7 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

11.7.8 Venue. Arbitration shall be initiated and take place in in San Jose, California, United States, and you and Clockworks agree to submit to the personal jurisdiction of any federal or state court in San Jose, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

11.7.9 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CLOCKWORKS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

11.7.10 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).

11.7.11 Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Services.

11.8 Entire Terms. These Terms, which include the language and paragraphs preceding Section 1, togther with any applicable Customer Agreement, are the final, complete, and exclusive expression of the agreement between you and Clockworks regarding the Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Services under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, except a Customer Agreement that expressly amends these Terms. Clockworks hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on these Terms and conditions of these Terms as offered by Clockworks. Except as explicitly permitted in these Terms, no modification or amendment of these Terms shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted.

11.9 Governing Law & Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. For purposes of determining the governing law, you and Clockworks agree that Clockworks is the proponent of these Terms. Notwithstanding Customer’s and Clockworks agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Jose, CA, as necessary to protect the party’s rights or property pending the completion of arbitration. Customer and Clockworks submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Jose, California, U.S.A.

11.10 Language and Translations. Clockworks may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.

11.11 Waiver. The waiver by either you or Clockworks of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.

11.12 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

11.13 How to Contact Us. If you have any questions about the Services or these Terms, pricing, complaints, or other inquiries, please contact Clockworks at 7522 Donegal Dr. Cupertino, CA 95014, United States. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.