THESE TERMS OF USE (THE “TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU (“USER”) AND CLOCKWORK UNIVERSE, INC. (“CLOCKWORK”). BY CHECKING THE “I ACCEPT” BOX OR USING THE CLOCKWORK UNIVERSE PLATFORM, USER ACKNOWLEDGES THAT USER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “USER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “USER” REFERS TO THAT ENTITY. IF USER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE CLOCKWORK UNIVERSE PLATFORM. CLOCKWORK MAY MAKE CHANGES TO THE CLOCKWORK UNIVERSE PLATFORM AT ANY TIME. IN ADDITION, CLOCKWORK MAY MAKE CHANGES TO THESE TERMS AT ANY TIME THAT ALL USERS WILL BE REQUIRED TO ACCEPT UPON NEXT SIGN IN. USER’S CONTINUED USE OF THE CLOCKWORK UNIVERSE PLATFORM AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY USER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.
PLEASE NOTE THAT THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER PROVISION BELOW IN SECTION 14.3. PLEASE REVIEW THIS SECTION CAREFULLY.
1. DEFINITIONS.
1.1 “Authorized Purposes” means for User’s internal business purposes.
1.2 “Authorized Users” means, where User is a business entity, User’s employees, consultants, contractors, and/or agents: (a) for whom a subscription to access to the Clockwork Universe Platform during the Subscription Term has been purchased by User, (b) who are authorized by User to access and use the Clockwork Universe Platform, and (c) who have been supplied user identifications and passwords for such purpose by User (or by Clockwork at User’s request).
1.3 “Clockwork Universe Platform” means the Clockwork Universe Platform hosted software platform provided by Clockwork at https://cwuniverse.app; provide that such definition excludes any Open Source Software that may be used to provide the platform or through our marking website at
https://www.clockwork.app.
1.4 “Documentation” means the printed, electronic or online user instructions and help files made available by Clockwork for use with the Clockwork Universe Platform, as may be updated from time to time by Clockwork.
1.5 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.6 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.7 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License(LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.8 “Service Tier” means the package of Clockwork Universe Platform functionality for which User has subscribed.
1.9 “Services” means the Clockwork Universe Platform and Support Services.
1.10 “Subscription Term” means the period for which User has subscribed to access and use the Clockwork Universe Platform.
1.11 “Support Services” means the support and maintenance services provided by Clockwork to Clockwork Universe Platform subscribers, as further described https://support.cwuniverse.app
1.12 “Third Party Offerings” means online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Clockwork Universe Platform.
1.13 “User Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of User or its Authorized Users and received and analyzed by the Clockwork Universe Platform.
1.14 “User System” means User’s internal website(s), servers and other equipment and software used to access and use the Clockwork Universe Platform.
2. LICENSES; RESTRICTIONS.
2.1 Access and Use License. Subject to User’s compliance with the terms and conditions contained in these Terms, Clockwork, during the relevant Subscription Term, herby grants User and, if applicable its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Clockwork Universe Platform in accordance with the Documentation in each case solely for User’s Authorized Purposes and not to provide products or services to any other person or entity. User’s use of the Clockwork Universe Platform may be subject to certain limitations – for example, certain functionality is not available at all Service Tiers.
2.2 Restrictions. User shall not, directly or indirectly, and User shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Clockwork Universe Platform; (b) modify, translate, or create derivative works based on any element of the Clockwork Universe Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Clockwork Universe Platform; (d) use the Clockwork Universe Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of User and Authorized Users; (e) remove any proprietary notices from the Documentation; (f) use the Clockwork Universe Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Clockwork Universe Platform; (h) introduce any Open Source Software into the Clockwork Universe Platform; or (i) attempt to gain unauthorized access to the Clockwork Universe Platform or its related systems or networks.
2.3 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to User or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Clockwork.
3. THIRD PARTY OFFERINGS; THIRD PARTY HOSTING.
3.1 Use of Third Party Offerings. Clockwork or third parties may from time to time enable User to use the Clockwork Universe Platform in connection with Third Party Offerings. Any use by User of any such Third Party Offerings, and any exchange of data between User and any provider of a Third Party Offering, is solely between User and the applicable provider of the Third Party Offering. Clockwork does not warrant or support any Third Party Offering, whether or not it are designated by Clockwork as “certified” or otherwise. If User installs or enables any Third Party Offering for use with Clockwork Universe Platform, User acknowledges that Clockwork may allow providers of that Third Party Offering to access User Data as required for the interoperation and support of such Third Party Offering with the Clockwork Universe Platform. Clockwork shall not be responsible for any disclosure, modification or deletion of User Data resulting from any such access by the providers of Third Party Offerings. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Clockwork Universe Platform features on reasonable terms, Clockwork may cease providing such features without entitling User to any refund, credit, or other compensation.
3.2 Access Codes. To the extent that Clockwork requires that User grant Clockwork with authorizations, passwords or other user credentials to a Third Party Offering (“Access Codes”) to retrieve User Data or to enable interoperability with the Clockwork Universe Platform, User shall promptly provide such Access Codes. Clockwork shall not share, reassign, divulge or disclose any Access Codes except to Clockwork employees or contractors specifically engaged in the performance of the Services.
3.3 Third Party Hosting. Clockwork may use the services of one or more third parties to deliver all or part of the Clockwork Universe Platform. Clockwork will pass-through any warranties to the extent that Clockwork receives any from its then current third-party service provider that it can provide to User. User agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to User from time to time.
4. PASSWORDS.
4.1 Passwords. User and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. User is solely responsible for any and all access and use of the Clockwork Universe Platform that occurs using any Authorized User’s account. User shall restrict its Authorized Users from sharing passwords. User agrees to immediately notify Clockwork of any unauthorized use of any account or login and password issued to User and/or its Authorized Users. Clockwork shall have no liability for any loss or damage arising from User’s or its Authorized Users failure to comply with the terms set forth in this Section.
4.2 No Circumvention of Security. Neither User nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Clockwork Universe Platform. User will immediately notify Clockwork of any breach, or attempted breach, of security known to User.
5. USER OBLIGATIONS.
5.1 User System. User is responsible for (a) obtaining, deploying and maintaining the User System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Clockwork Universe Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a separate agreement between User and Clockwork referencing these Terms, Clockwork shall not be responsible for supplying any hardware, software or other equipment to User under these Terms.
5.2 Acceptable Use. User shall be solely responsible for its actions and the actions of its Authorized Users while using the Clockwork Universe Platform. User acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to User’s use of the Clockwork Universe Platform, including without limitation the provision and storage of User Data; (b) not to send or store data on or to the Clockwork Universe Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Clockwork Universe Platform or another’s computer or mobile device; (d) not to use the Clockwork Universe Platform for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Clockwork Universe Platform or interfere with other ability to access or use the Clockwork Universe Platform; (f) not to distribute, promote or transmit through the Clockwork Universe Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another user’s use and enjoyment of the Clockwork Universe Platform; (i) not to use the Clockwork Universe Platform in any manner that impairs the Clockwork Universe Platform, including without limitation the servers and networks on which the Clockwork Universe Platform is provided; (j) to comply with all regulations, policies and procedures of networks connected to the Clockwork Universe Platform and Clockwork’s service providers; and (k) to use the Clockwork Universe Platform only in accordance with the Documentation. User acknowledges and agrees that Clockwork neither endorses the contents of any User communications or User Data nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Clockwork may remove any violating content posted or stored using the Clockwork Universe Platform or transmitted through the Clockwork Universe Platform, without notice to User. Notwithstanding the foregoing, Clockwork does not guarantee and is not obligated to verify, authenticate, monitor or edit the User Data or any other information or data input into or stored in the Clockwork Universe Platform for completeness, integrity, quality, accuracy or otherwise. User shall be responsible and liable for the completeness, integrity, quality and accuracy of User Data input into the Clockwork Universe Platform.
5.3 Accuracy of User’s Contact Information; Email Notices. User agrees to provide accurate, current and complete information as necessary for Clockwork to communicate with User from time to time regarding the Services, issue invoices or accept payment, or contact User for other account- related purposes. User agrees to keep any online account information current and inform Clockwork of any changes in User’s legal business name, address, email address and phone number. User agrees to accept emails from Clockwork at the e-mail addresses specified by its Authorized Users for login purposes. In addition, User agrees that Clockwork may rely and act on all information and instructions provided to Clockwork by Authorized Users from the above-specified email addresses.
5.4 Temporary Suspension. Clockwork may temporarily suspend User’s or its Authorized Users’ access to the Clockwork Universe Platform in the event that either User or any of its Authorized Users is engaged in, or Clockwork in good faith suspects User or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Clockwork will attempt to contact User prior to or contemporaneously with such suspension; provided, however, that Clockwork’s exercise of the suspension rights herein shall not be conditioned upon User’s receipt of any such notification. A suspension may take effect for User’s entire account and User understands that such suspension would therefore include its Authorized User accounts. User agrees that Clockwork shall not be liable to User, Authorized Users, or any third party if Clockwork exercises its suspension rights as permitted by this Section. Upon determining that User has ceased the unauthorized conduct leading to the temporary suspension to Clockwork’s reasonable satisfaction, Clockwork shall reinstate User’s and its Authorized Users’ access to and use of the Clockwork Universe Platform. Notwithstanding anything in this Section to the contrary, Clockwork’s suspension of access to the Clockwork Universe Platform is in addition to any other remedies that Clockwork may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Clockwork may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6. AVAILABILITY; SECURITY.
6.1 Availability. Subject to the terms and conditions of these Terms, Clockwork will use commercially reasonable efforts to make the Clockwork Universe Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond Clockwork’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Certain enhancements to the Clockwork Universe Platform made generally available at no cost to all users in User’s Service Tier during the applicable Term will be made available to User at no additional charge. However, the availability of some new enhancements to the Clockwork Universe Platform may require the payment of additional fees, and Clockwork will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Clockwork Universe Platform includes, any enhancements, updates, upgrades and new modules to the Clockwork Universe Platform provided in connection therewith, subsequently provided by Clockwork to User hereunder.
6.2 Security; Privacy Policy. Clockwork will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of User Data in a in a manner consistent with what Clockwork supplies generally to its other users. Please review our privacy policy, which is available https://www.clockwork.app/privacy-policy (the “Privacy Policy”) which further explains how Clockwork collects and uses the User Data and other information that Clockwork collects through users’ use of the Clockwork Universe Platform. Notwithstanding the foregoing, User acknowledges that, notwithstanding any security precautions deployed by Clockwork, the use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Clockwork Universe Platform and User Data. Clockwork cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
6.3 Beta Releases. If User registers for a “beta account” or other pre-release version of the Clockwork Universe Platform (“Beta Release”), User acknowledges and agrees that the Beta Release may contain, in Clockwork’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Clockwork Universe Platform. USER ACKNOWLEDGES AND AGREES THAT ANY “BETA ACCOUNT” WILL AUTOMATICALLY CONVERT TO A COMMERCIAL RELEASE VERSION ACCOUNT UPON THE LAUNCH DATE OF THE CLOCKWORK UNIVERSE PLATFORM TO THE PUBLIC (“PUBLIC LAUNCH DATE”). IF USER DOES NOT DESIRE TO CONTINUE USING THE CLOCKWORK UNIVERSE PLATFORM AFTER THE PUBLIC LAUNCH DATE, USER MAY EMAIL CLOCKWORK TO CANCEL ITS SUBSCRIPTION AT SUPPORT@CLOCKWORK.APP. While Clockwork generally intends to distribute a commercial release version of the Clockwork Universe Platform, Clockwork reserves the right not to release later commercial release versions of any Beta Release. Without limiting any disclaimer of warranty or other limitation stated herein, User agrees that any Beta Release is not considered by Clockwork to be suitable for commercial use, and that it may contain errors affecting its proper operation. BY ACCEPTING THESE TERMS, USER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT USE OF THE CLOCKWORK UNIVERSE PLATFORM IN GENERAL AND THE CONTENT AND INFORMATION THAT MAY BE OFFERED THROUGH THE CLOCKWORK UNIVERSE PLATFORM. CLOCKWORK SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM USE OF ANY BETA RELEASE.
7. FEES AND PAYMENT.
7.1 Fees. User agrees to pay all fees applicable to User’s and its Authorized Users’ use of the Clockwork Universe Platform using one of the payment methods Clockwork supports. Except as otherwise specified in these Terms, (a) fees are based on Services purchased, regardless of actual usage, and (b)payment obligations are non-cancelable and fees paid are non-refundable. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
7.2 Payment. If User elects to pay by credit card, ACH or PayPal, Clockwork or Clockwork’s third-party payment processor will charge User’s payment method on the date that User subscribes to use the Platform. By providing a payment method, User expressly authorizes Clockwork and/or Clockwork’s third-party payment processor to charge the applicable fees to said payment method as well as taxes and other charges incurred thereto. User agrees that Clockwork may invoice User for any unpaid fees, including without limitation any amounts owed by User that cannot be processed. User is responsible for providing complete and accurate billing and contact information to Clockwork and notifying Clockwork of any changes to such information. User agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. User is responsible for providing complete and accurate billing and contact information to Clockwork and notifying Clockwork of any changes to such information.
IMPORTANT NOTICE – AUTOMATIC RENEWAL: IF USER SUBSCRIBES FOR A SUBSCRIPTION THAT INCLUDES A PROMOTIONAL PRICE PERIOD, UNLESS USER HAS CANCELLED ITS SUBSCRIPTION PRIOR TO THE EXPIRATION OF THE PROMOTIONAL PERIOD, THE PROMOTIONAL SUBSCRIPTION WILL CONVERT INTO FULL PRICED SUBSCRIPTION AND CLOCKWORK WILL AUTOMATICALLY CHARGE USER FOR THE FIRST MONTHLY SUBSCRIPTION FEE UPON THE EXPIRATION OF THE PROMOTIONAL PERIOD AND EACH SUBSEQUENT MONTH THEREAFTER. THE PRICING FOR SUCH SUBSCRIPTION WILL BE AT THE FULL SUBSCRIPTION PRICE IN EFFECT ON THE DATE USER AGREED TO THE PROMOTIONAL PERIOD.
AS AUTHORIZED BY USER DURING THE REGISTRATION PROCESS, CLOCKWORK WILL CHARGE USER’S PAYMENT METHOD EACH MONTH WITH THE APPLICABLE MONTHLY SUBSCRIPTION FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON SUCH PAYMENT UNLESS USER CANCELS PRIOR TO THE LAST DAY OF THE PREVIOUS MONTH BY EMAILING CLOCKWORK AT SUPPORT@CLOCKWORK.APP.
BEGINNING WITH THE FIRST MONTH FOLLOWING THE END OF THE SUBSCRIPTION TERM FOR WHICH USER INITIALLY SUBSCRIBES, CLOCKWORK WILL AUTOMATICALLY RENEW USER’S SUBSCRIPTION. EACH RENEWAL PERIOD WILL BE FOR THE SAME LENGTH AS USER’S IMMEDIATELY PRECEDING SUBSCRIPTION PERIOD.
CLOCKWORK REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS USER’S CANCELLATION REQUEST. IF USER CANCELS ITS SUBSCRIPTION AFTER THE FIRST DAY OF THE MONTH, USER WILL NOT RECEIVE A REFUND, BUT WILL CONTINUE TO ENJOY ITS SUBSCRIPTION BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT MONTH FOR WHICH USER HAS PAID.
CLOCKWORK RESERVES THE RIGHT TO MODIFY OUR PRICING AT ANY TIME (BUT NOT THE PRICE IN EFFECT FOR YOUR THEN-CURRENT SUBSCRIPTION), UPON ADVANCE NOTICE TO USER. IF USER HAS NOT CANCELLED ITS SUBSCRIPTION WITHIN THE SPECIFIED TIME AFTER RECEIVING NOTICE OF A PRICE CHANGE, USER’S SUBSCRIPTION WILL AUTO-RENEW AT THE PRICE INDICATED IN THE NOTICE.
7.3 Overdue Charges. If Clockwork does not receive fees by the due date, then at Clockwork’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such paymentwas due until the date paid; and (b) Clockwork may condition future purchases of Services on payment terms shorter than those specified in Section 7.2 (Payment).
7.4 Suspension of Service. If any amounts owed by User for the Services are more than thirty (30) days overdue, Clockwork may, without limiting Clockwork’s other rights and remedies, suspend User’s and its Authorized Users’ access to the Clockwork Universe Platform until such amounts are paid in full; provided that Clockwork agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and User is cooperating diligently to resolve the dispute.
7.5 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with these Terms or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under these Terms shall not include Taxes except as otherwise provided herein. User shall be responsible for all of such Taxes. If, however, Clockwork has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which User is responsible under this section, User shall promptly pay the Taxes invoiced by Clockwork unless User has furnished Clockwork with valid tax exemption documentation regarding such Taxes. User shall comply with all applicable tax laws and regulations. User hereby agrees to indemnify Clockwork for any Taxes and related costs paid or payable by Clockwork attributable to Taxes that would have been User’s responsibility under this Section 7.5 if invoiced to User. User shall promptly pay or reimburse Clockwork for all costs and damages related to any liability incurred by Clockwork as a result of User’s non-compliance or delay with its responsibilities herein. User’s obligation under this Section 7.5 shall survive the termination or expiration of these Terms.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE CLOCKWORK UNIVERSE PLATFORM, SUPPORT SERVICES AND THIRD-PARTY OFFERINGS ARE PROVIDED ON AN AS-IS BASIS. USER’S USE OF THE CLOCKWORK UNIVERSE PLATFORM, SUPPORT SERVICES AND THIRD-PARTY OFFERINGS IS AT ITS OWN RISK. CLOCKWORK DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, QUALITY , SUIT ABILITY , OPERABILITY , CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY CLOCKWORK IN SECTION 7 ARE FOR THE BENEFIT OF THE USER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY . ANY SOFTWARE PROVIDED THROUGH THE CLOCKWORK UNIVERSE PLATFORM IS LICENSED AND NOT SOLD.
NO AGENT OF CLOCKWORK IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF CLOCKWORK AS SET FORTH HEREIN. CLOCKWORK DOES NOT WARRANT
THAT: (A) THE USE OF THE CLOCKWORK UNIVERSE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY USER THROUGH THE CLOCKWORK UNIVERSE PLATFORM WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE CLOCKWORK UNIVERSE PLATFORM WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE CLOCKWORK UNIVERSE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CLOCKWORK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
THE FACT THAT CLOCKWORK HAS MADE SERVICES AND DATA AVAILABLE TO USER HEREUNDER DOES NOT CONSTITUTE A RECOMMENDATION THAT USER ENTER INTO A PARTICULAR TRANSACTION OR A RECOMMENDATION THAT ANY SECURITY OR OTHER INVESTMENT DESCRIBED OR IDENTIFIED BY CLOCKWORK IS SUITABLE OR APPROPRIATE FOR USER. USER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS (INCLUDING, WITHOUT LIMITATION, ANY INVESTMENT DECISIONS, PURCHASES OR TRANSACTIONS) MADE BY USER AND ITS AUTHORIZED USERS IN USING THE CLOCKWORK UNIVERSE PLATFORM, AND ACKNOWLEDGES THAT USER HAS BEEN ADVISED BY CLOCKWORK TO CONSULT USER’S INVESTMENT OR OTHER BUSINESS ADVISER, ATTORNEY, AND TAX AND ACCOUNTING PROFESSIONALS CONCERNING ANY CONTEMPLATED TRANSACTIONS OR INVESTMENTS. USER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE CLOCKWORK UNIVERSE PLATFORM IS AT THE SOLE RISK OF USER AND ITS AUTHORIZED USERS; (B) CLOCKWORK AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE CLOCKWORK UNIVERSE PLATFORM, DELAYS OR ERRORS CAUSED BY USER’S USE OF THE CLOCKWORK UNIVERSE PLATFORM, OR ANY PART THEREOF; AND (C) CLOCKWORK IS NEITHER ACTING AS AN INVESTMENT ADVISOR NOR AS A BROKER DEALER. USER FURTHER ACKNOWLEDGES AND AGREES THAT USER WILL NOT CONSTRUE ANY OF THE INFORMATION, DATA OR COMMENTARY PROVIDED HEREUNDER AS BUSINESS, FINANCIAL, INVESTMENT, HEDGING, TRADING, LEGAL, REGULATORY, TAX, OR ACCOUNTING ADVICE.
9. INDEMNIFICATION.
9.1 Clockwork Indemnity.
(a) General. During the Subscription Term, Clockwork, at its expense, shall defend User and its officers, directors and employees (the “User Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Clockwork Universe Platform infringes any copyright or misappropriate any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Clockwork’s obligations under this Section are conditioned upon (i) Clockwork being promptly notified in writing of any Third-Party Claim under this Section, (ii) Clockwork having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) User providing all reasonable assistance (at Clockwork’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall User settle any such Third- Party Claim without Clockwork’s prior written approval. User may, at its own expense, engage separate counsel to advise User regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to Clockwork’s right to control the defense and settlement.
(b) Mitigation. If any claim which Clockwork is obligated to defend has occurred, or in Clockwork’s determination is likely to occur, Clockwork may, in its sole discretion and at its option and expense (a) obtain for User the right to use the Clockwork Universe Platform, (b) substitute a functionality equivalent, non-infringing replacement for the Clockwork Universe Platform, (c) modify the Clockwork Universe Platform to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to User any prepaid amounts attributable the period of time between the date User was unable to use the Clockwork Universe Platform due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) User’s use of infringing User Data; (ii) use of the Clockwork Universe Platform in combination with any software, hardware, network or system not supplied by Clockwork where the alleged infringement relates to such combination, (iii) any modification or alteration of the Clockwork Universe Platform other than by Clockwork, (iv) User’s continued use of the Clockwork Universe Platform after Clockwork notifies User to discontinue use because of an infringement claim, (v) User’s violation of applicable law; (vi) Third Party Offerings; and (vii) the User System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF CLOCKWORK WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE CLOCKWORK UNIVERSE PLATFORM OR OTHERWISE, AND USER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF CLOCKWORK WITH RESPECT THERETO.
9.2 User Indemnity. User shall defend Clockwork and its affiliates, licensors and their respective officers, directors and employees (“Clockwork Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the User Data or User System (and the exercise by Clockwork of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) User’s use or alleged use of the Clockwork Universe Platform other than as permitted under these Terms; or (c) arising from the occurrence of any of the exclusions set forth in Section 9.1(c). User shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. User’s obligations under this Section are conditioned upon (x) User being promptly notified in writing of any Third-Party Claim under this Section, (y) User having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Clockwork providing all reasonable assistance (at User’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Clockwork settle any such Third-Party Claim without User’s prior written approval. Clockwork may, at its own expense, engage separate counsel to advise Clockwork regarding a Third-Party Claim and to participate in the defense of the claim, subject to User’s right to control the defense and settlement.
10. CONFIDENTIALITY.
10.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; and (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business.
Confidential Information of Clockwork shall include the Clockwork Universe Platform, the Documentation, the pricing, and the pricing provided to User.
10.2 Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under these Terms. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
10.3 Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non- Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
11. PROPRIETARY RIGHTS.
11.1 Clockwork Universe Platform. As between Clockwork and User, all right, title and interest in the Clockwork Universe Platform and any other Clockwork materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by User regarding the Clockwork Universe Platform, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Clockwork or Clockwork’s licensors and providers, as applicable. User hereby does and will irrevocably assign to Clockwork all evaluations, ideas, feedback and suggestions made by User to Clockwork regarding the Clockwork Universe Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
11.2 User Data. As between Clockwork and User, all right, title and interest in the User Data, belongs to and is retained solely by User. By posting, displaying, sharing or distributing User Data on or through the Clockwork Universe Platform, User hereby grants to Clockwork a limited, non-exclusive, royalty-free, worldwide license to use the User Data and perform all acts with respect to the User Data asmay be necessary for Clockwork to provide the Services to User, which may include display or distribution of such User Data to users or subsets of users of the Clockwork Universe Platform specified by User. Clockwork may modify, copy, translate or make any derivative works of User Content in connection with its provision of the Service as required to format such User Content for presentation within the Service, to continually improve the Service and to develop new services and offerings
11.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Clockwork may monitor User’s use of the Services and use User Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to Clockwork Universe Platform, its users and the Third-Party Offerings (“Aggregated Statistics”). As between Clockwork and User, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Clockwork. User acknowledges that Clockwork will be compiling Aggregated Statistics based on User Data and information input by other customers into the Clockwork Universe Platform and User agrees that Clockwork may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify User or its Confidential Information.
12. LIMITATION OF LIABILITY.
12.1 No Consequential Damages. NEITHER CLOCKWORK NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF CLOCKWORK OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE CLOCKWORK UNIVERSE PLATFORM, SUPPORT SERVICES OR THE RESULTS THEREOF. CLOCKWORK WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
12.2 Limits on Liability. NEITHER CLOCKWORK NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY USER TO CLOCKWORK DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
12.3 Essential Purpose. USER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
13. TERM AND TERMINATION.
13.1 Term. The term of these Terms commence on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between User and Clockwork referencing these Terms
13.2 Termination for Cause. A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties mayagree. In no event shall any termination relieve User of the obligation to pay any fees payable to Clockwork for the period prior to the effective date of termination.
13.3 Termination for Convenience. At any time after the Initial Term, User shall have the right to terminate its use of the Clockwork Universe Platform for convenience on at thirty (30) days prior written notice to Clockwork; provided, however, that under no circumstances shall User be entitled to any refund of any fees as a result of such termination.
13.4 Effects of Termination. Upon expiration or termination of these Terms, (a) User’s use of and access to the Clockwork Universe Platform and Clockwork’s performance of all Support Services shall cease; and (b) all fees and other amounts owed to Clockwork shall be immediately due and payable by User. Clockwork shall have no obligation to maintain or provide any User Data and may thereafter, unless legally prohibited, delete or retain all User Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the User Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
13.5 Survival. This Section and Sections 1, 2.2, 2.3, 5.2, 9, 10, 11, 12, 13.4, 14 shall survive any termination or expiration of these Terms.
14. MISCELLANEOUS.
14.1 Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the addresses set forth below (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
14.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the Commonwealth of Virginia as applied to agreements entered into and to be performed in such Commonwealth without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Notwithstanding the provisions of Section 14.3 below, Clockwork has the right to pursue equitable relief in the state and federal courts located in Virginia, and User agrees to the exclusive jurisdiction and venue of such courts.
14.3 Dispute Resolution And Arbitration; Class Action Waiver Please Read This Provision Carefully. It Affects Your Legal Rights.
(a) This Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity,enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between User and Clockwork. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided to User (such as Clockwork’s licensors, suppliers, dealers or third-party vendors) whenever User also asserts claims against Clockwork in the same proceeding.
(b) This Provision provides that all disputes between User and Clockwork shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of User’s right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). User may, however, opt- out of this Provision, which means User would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH USER AND CLOCKWORK AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
(c) Pre-Arbitration Claim Resolution
(i) For all disputes, whether pursued in court or arbitration, User must first give Clockwork an opportunity to resolve the dispute, which is accomplished by emailing Clockwork at legal@clockwork.app the following information: (1) User’s name, (2) User’s address, (3) a written description of the dispute, and (4) a description of the specific relief User seeks. If Clockwork does not resolve the dispute to your satisfaction within 45 days after receiving User’s notification, then User may pursue the dispute in arbitration. User may pursue the dispute in a court only under the circumstances described below.
(d) Exclusions from Arbitration/Right to Opt Out
(i) Notwithstanding the above, User or Clockwork may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) USER OPTS-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT USER FIRST CONSENTS TO THESE TERMS (the “Opt-Out Deadline”). User may opt-out of this Provision by emailing Clockwork at legal@clockwork.app the following information: (1) User’s name; (2) User’s address; (3) a clear statement that User does not wish to resolve disputes with Clockwork through arbitration. A decision to opt-out of this Provision will have no adverse effect on User’s relationship with Clockwork, but any opt-out request received after the Opt-Out Deadline will not be valid and User must pursue User’s dispute in arbitration or small claims court.
(e) Arbitration Procedures
(i) If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either User or Clockwork may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced or maintained or heard as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
(ii) For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules &Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
(iii) Because the Clockwork Universe Platform and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
(f) Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
(g) Location of Arbitration – User or Clockwork may initiate arbitration in either the Commonwealth of Virginia or the federal judicial district that includes User’s billing address. In the event that User selects the latter, Clockwork may transfer the arbitration to Virginia so long as Clockwork agrees to pay any additional fees or costs which the arbitrator determines User incurs as a result of the transfer.
(h) Payment of Arbitration Fees and Costs – So long as User places a request in writing prior to commencement of the arbitration, Clockwork will pay all arbitration fees and associated costs and expenses. But, User will still be responsible for all additional fees and costs that User incurs in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if User provides notice and negotiates in good faith with Clockwork as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that User is the prevailing party in the arbitration, User will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
(i) Class Action Waiver
(i) Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both User and Clockwork specifically agree to do so following initiation of the arbitration. If User chooses to pursue the dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to User. Except to the extent that representative claims under California’s Private Attorney General Act (“PAGA”) are excluded from this Agreement (if PAGA is applicable), neither User, nor any other user of the Clockwork Universe Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
(j) No Judge or Jury In Arbitration
(i) Arbitration does not involve a judge or jury. User understands and agrees that by accepting this Provision, User and Clockwork are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, User and Clockwork might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that User would have if User went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
(k) Severability
(i) If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
(l) Continuation
(i) This Provision shall survive the termination of these Terms and User’s discontinued use of the Clockwork Universe Platform. Notwithstanding any provision in this Agreement to the contrary, Clockwork agrees that if it makes any change to this Provision (other than a change to the Notice Address), User may reject any such change and require Clockwork to adhere to the language in this Provision as of the day User entered into these Terms if a dispute between Clockwork and User arises.
14.4 Publicity. Clockwork has the right to reference and use User’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Clockwork business development and marketing efforts, including without limitation Clockwork’s web site.
14.5 No Solicitation of Employees. User agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Clockwork without Clockwork’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by User of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
14.6 Export. The Clockwork Universe Platform utilizes software and technology that may be subject to United States and foreign export controls. User acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Clockwork Universe Platform, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Clockwork Universe Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730- 774 and Council Regulation (EC) No. 1334/2000. User agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Clockwork and its licensors make no representation that the Clockwork Universe Platform is appropriate or available for use in other locations. Any diversion of the User Data contrary to law is prohibited. None of the User Data, nor any information acquired through the use of the Clockwork Universe Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
14.7 General. User shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Clockwork. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes allprior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for User’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.
