CLERK STANDARD TERMS AND CONDITIONS

Last updated: November 26, 2024

The Order Form and these Terms and Conditions is entered into between Clerk, Inc. ("Company") and your organization ("Customer") for the Service as defined in the Order Form, as of the Effective Date stated in the Order Form. By entering into the Order Form and these Terms and Conditions, Customer further agrees to Company's Data Processing Addendum and the Privacy Policy, both of which are incorporated herein by reference. The Order Form, these Terms and Conditions, the Privacy Policy, and the Data Processing Addendum are collectively defined as the "Agreement". SECTION 10 CONTAINS A BINDING ARBITRATION AND CLASS ACTION WAIVER CLAUSE FOR U.S. BASED CUSTOMERS.

The individual accepting this Agreement on behalf of Customer represents that they have the authority to bind Customer to this Agreement. If the individual does not have such authority, or if the individual does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Service and/or any Free Trial.

  1. SERVICES AND SUPPORT

Company shall make the Service available to Customer pursuant to the applicable Order Form during the Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable (except as expressly permitted in this Agreement) right during the Term to allow its Authorized Users to access and use the Service in accordance with the Documentation, solely for Customer's business purposes. Customer agrees that its purchase of the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Company with respect to future functionality or features.

  1. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES

    1. The Service may only be accessed by employees or representatives of Customer and the authorized end users of customers of the Customer ("Authorized Users") who (i) have been properly issued a valid password and username ("Credentials"), and (ii) have agreed to abide by the terms and conditions of this Agreement. Customer shall be solely responsible for: (a) issuing, managing, and deleting Credentials, (b) verifying the identity of each Authorized User and validating use of Credentials by each Authorized User, and (c) monitoring Authorized User access to the Service to ensure that only Authorized Users that are permitted to access and use the Service do so. Customer shall assume all responsibility and liability with respect to access and use of the Services by Authorized Users, including ensuring that Authorized Users comply with all of the obligations and restrictions set forth in this Agreement.

    2. Customer will not, directly or indirectly: (i) reverse engineer, decode, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software (including documentation and data provided with such software) related to the Service; (ii) copy, in whole or in part, the Service or any component thereof; (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Service; (iv) sublicense, sell, rent, lease, transfer, distribute, or use the Service or any software for timesharing or service bureau purposes or otherwise for the benefit of a third party except its own customers and its end users; or (v) remove any proprietary notices or labels.

    3. Customer represents, covenants, and warrants that Customer will use the Service only in compliance with this Agreement, Company's standard published policies then in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company and its officers, directors, employees, and agents against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Service or breach of this Agreement (except to the extent such claims directly arise from Company's breach of this Agreement), even if Company has been advised of the possibility of such damage. Although Company has no obligation to monitor Customer's use of the Service, Company may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.

    4. As between Customer and Company, Customer is solely responsible for the accuracy, completeness, validity, authorization for use (including transmission) and integrity of all Customer Data, regardless of form or format. "Customer Data" is the non-public data provided by Customer to Company to enable the provision of the Service, and includes information of Customer's end users. Customer acknowledges and agrees that (i) Customer will be required to provide certain Customer Data to the Service to enable its operation, and (ii) the Service is designed to act on direction given to it by the Customer, and that Customer is solely responsible for such direction and the results thereof. Customer shall not send or store in the Service any personal health information, or other sensitive data that may be subject to the Health Insurance Portability and Accountability Act ("HIPAA") without agreeing to Company's Subcontractor Business Associate Agreement. Customer may not send or store in the Service any credit card data or personal financial data.

    5. Customer and Authorized Users shall not intentionally insert any Malicious Code into any data that is inputted, transmitted, uploaded and/or otherwise transferred to the Service. "Malicious Code" means computer software, code or instructions that are designed to: (i) adversely affect the operation, security or integrity of a computing, telecommunications or other digital operating or processing system or environment, including other programs, data, databases, computer libraries and computer and communications equipment, by altering, destroying, disrupting or inhibiting such operation, security or integrity; (ii) permit unauthorized access to any computer, network or system; or (iii) without authorization collect and/or transmit to other parties any information or data; including such software, code or instructions commonly known as viruses, Trojans, logic bombs, worms and spyware.

  2. OWNERSHIP

    1. Customer shall own all right, title and interest in and to the Customer Data. Customer hereby grants to Company and its relevant service providers a limited, nonexclusive, perpetual, irrevocable, royalty-free, right and license, to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data (i) as necessary for performance of Company's obligations and exercise of Company's rights under this Agreement; (ii) as required by applicable law; and (iii) to create data, solely in de-identified and aggregated form ("Aggregated Data"). Customer hereby grants to Company a limited, nonexclusive, perpetual, irrevocable royalty-free, irrevocable right and license, during and after the Term, to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, disclose, and otherwise use Aggregated Data for or in connection with improvements or derivative works to the Service. Customer agrees that Company shall own all right, title, and interest in all Aggregated Data and in such improvements and derivative works.

    2. Company shall own and retain all right, title and interest in and to (a) the Service, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Service or support, and (c) all intellectual property rights related to any of the foregoing. Subject to Customer's continued compliance with the terms and conditions of this Agreement, Company hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free license, during the Term, to access and use the Service and provide Authorized Users with access and use of the Service. Nothing contained herein shall be construed as granting Customer any rights in or to the Service, other than the right to use the Service as expressly stated herein.

    3. The parties acknowledge and agree that Company may solicit and Customer may provide to Company suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the "Feedback"). Customer hereby grants to Company a nonexclusive, perpetual, irrevocable, royalty-free, right and license to disclose, use and incorporate the Feedback in connection with the development and distribution of the Services and related products and services. Feedback shall not be considered Confidential Information.

  3. CONFIDENTIALITY and data security

4.1 Each party agrees to protect the Confidential Information (as defined below) in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care. A party shall not disclose or use any Confidential Information for any purpose outside the scope of this Agreement, without the disclosing party's prior written permission. A party may disclose the other party's Confidential Information to its employees, contractors, agents, and affiliates, that have entered into agreements containing disclosure and use provisions substantially similar to those set forth herein and have a "need to know" in order to carry out the purpose of this Agreement. "Confidential Information" means (a) Customer Data; (b) the Service, Documentation, and the terms and conditions of this Agreement and all Order Forms, including pricing; and (c) each party's technical and business information (including but not limited to hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business and marketing plans or opportunities, finances, vendors, penetration test results, Audit Reports (as defined below) and other security information, defect and support information and metrics, and third party audit reports and attestations) that is designated by the disclosing party as confidential or the receiving party should reasonably know is confidential given the nature of the information and circumstances of disclosure.

4.5 Confidential Information shall not include any information which (a) is or becomes generally known to the public, other than a result of the act or omission of the receiving party; (b) is rightfully known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) is lawfully received from a third party without breach of any obligation owed to the other party: or (d) was independently developed by a party without breach of any obligation owed to the other party.

4.5 If a party is compelled by law to disclose Confidential Information of the other party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure.

4.6 Due to the unique nature of the parties' Confidential Information disclosed hereunder, there may be no adequate remedy at law for a party's breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it. Confidential Information is and shall remain the property of the disclosing party.

4.7 Company shall maintain appropriate administrative, physical, and technical safeguards to protect the security of the Service and the Customer Data. Upon Customer's request, Company shall provide Customer with a copy of Company's then-current Service Organization Control 2 (SOC 2) audit report or other similar independent third-party annual audit report ("Audit Report").

4.8 As a condition to Customer's right to use and to permit its Authorized Users to use the Service, Customer shall establish security systems which, at a minimum, shall include mechanisms to (i) detect and terminate the unauthorized use of or access to the Service, (ii) safeguard the integrity and validity of the Credentials, and (iii) prevent unauthorized access to and protect all electronically stored, processed or transmitted information. Customer shall promptly inform Company of any unauthorized use of the Service or breach of this Agreement by any of its Authorized Users and inform Company of the steps being taken to terminate such unauthorized use or breach.

  1. FREE TRIAL

    1. If Customer uses a Free Trial (as defined below), then the applicable provisions of this Agreement will govern that Free Trial, and Company will make such Free Trial available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer agreed to use such Free Trial; (b) the start date of any Service subscription purchased by Customer for such Service; or (c) termination of the Free Trial by Company in its sole discretion. A Free Trial period may be extended upon mutual agreement by Company and Customer.

    2. Registration for a Free Trial may require Customer to enter billing information, but billing will not commence until the Free Trial has expired. On the last day of the Free Trial period, unless Customer cancels a Subscription, Customer will automatically be charged the applicable Subscription fees for the Subscription which Customer has selected.

    3. Notwithstanding anything to the contrary in this Agreement, a Free Trial is provided by Company "AS IS" AND "AS AVAILABLE." COMPANY MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL. COMPANY SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF A FREE TRIAL IS ONE HUNDRED DOLLARS ($100.00). CUSTOMER SHALL NOT USE THE FREE TRIAL IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A FREE TRIAL. ANY DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER'S FREE TRIAL ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL. Company reserves the right to modify or cancel any Free Trial offer at any time and without notice.

    5.4 "Free Trial" means any Company service or functionality that Company makes available to Customer to try at Customer's option, at no additional charge, and which is clearly designated as a "free trial," "evaluation" or similar designation.

  2. Subscriptions; Payment

    1. Some parts of the Service are billed on a subscription basis ("Subscription(s)"). Customer will be billed in advance on a recurring monthly basis as set forth on the Order Form (the "Billing Cycle"). Customer will pay Company the then applicable fees described in the Order Form for the Service in accordance with the terms therein (the "Fees"). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the then-current Billing Cycle, upon sixty (60) days prior notice to Customer (which may be sent by email). Except as otherwise required by applicable law, paid Subscription Fees are non-refundable.

    2. A valid payment method, including credit card, is required to process the payment for Customer's Subscription. Customer shall provide Company with accurate and complete billing information as set forth on the Order Form. By submitting such billing information, Customer automatically authorizes Company to charge all Subscription Fees incurred through the Customer account to such payment instruments. Should automatic billing fail to occur for any reason, Company will issue an electronic invoice to Customer, requesting manual payment before a date specified in such invoice to avoid termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.

  3. TERM AND TERMINATION

    1. Subject to earlier termination as provided below, this Agreement is for the Initial Subscription as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Subscription term (collectively, the "Term"). If Customer wishes to terminate the Service, you should stop using the Service prior to the next Billing Cycle.

    2. In addition to any other remedies it may have, either party may also terminate this Agreement (a) upon 30 days' notice to the other party, if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured at the end of said 30 day period, or (b) upon delivery of written notice to the party, if the other party (i) becomes bankrupt or has a receiving order or administration order made against it or makes any composition or arrangement with or for the benefit of its creditors or purports to do so, or (ii) passes a resolution or a court makes an order that the other party be wound up, a receiver or an administrator on behalf of a creditor is appointed in respect of the business of the other party or any part or parts thereof, or circumstances arise which entitle a court or a creditor to appoint a receiver or administrator or which entitle a court to make a winding-up order. Customer will pay in full for the Service up to and including the last day on which the Service are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

  4. WARRANTY AND DISCLAIMER

    1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall perform the Service in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Company represents and warrants that the Service will be provided and perform in all material respects in accordance with the functions and features described in the then current Documentation and as otherwise required under the applicable Order Form. "Documentation" means Company's published online user guides and manuals relating to the Service available at https://clerk.com/docs including online help, as updated and amended from time to time. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  5. LIMITATION OF LIABILITY

    1. Company shall not be liable to Customer with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, tort, strict liability or other theory (a) for any indirect, exemplary, incidental, punitive, special or consequential damages; or (b) for any direct damages that exceed the fees paid or payable by Customer to Company for the Service under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages (this Section 9.1, collectively, the "Limitation of Liability").

    2. Some states do not allow the exclusion or limitation of punitive, incidental, or consequential damages, so the prior Limitation of Liability may not apply to Customer.

  6. binding arbitration FOR U.S. BASED CUSTOMERS

    1. If Customer is based in the United States, Customer and Company agree to attempt to resolve disputes informally for at least 60 days following one party sending to the other a notice of dispute with complete information regarding such dispute.

    2. If the parties fail to reach a mutually satisfactory resolution to any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope of applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, before a single arbitrator. If the dispute, claim, or controversy exceeds $250,000, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the "Rules"), and if not, the arbitration shall be administered by JAMS pursuant to the Rules in accordance with the Expedited Procedures or similar process set forth in the Rules. Judgement on the award may be entered in any court having jurisdiction. This Section 10.2 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

    3. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.

    4. CUSTOMER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with claims of Customer or Company and may not otherwise preside over any form of a representative or class proceeding.

  7. third Party applications

    As part of the Service and described in the Documentation, Company may provide or integrate certain third-party software and third-party applications ("Third-Party Resources"). Customer acknowledges that in such instances, Company is not the developer or owner of such Third-Party Resources. Customer agrees that Company does not warrant and is not responsible for any defects or defaults in the Third-Party Resources or networks. Customer's sole and exclusive rights and remedies with respect to any Third-Party Resources shall be against the provider of the Third-Party Resource and not against Company. Company shall provide Customer with reasonable cooperation and use reasonable efforts to work with provider of Third-Party Resources to remedy any defect or failure on Customer's behalf, but shall not otherwise be responsible for any liabilities. Customer further acknowledges and agrees that its use of the Third-Party Resources shall be subject to any applicable licensing terms or standard warranties displayed on, embedded in, or provided with the Third-Party Resources (e.g., a click-wrap/browse-wrap or other such terms or standard terms and conditions) and relevant privacy policy.

  8. MISCELLANEOUS

12.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.2 If the performance of this Agreement or any obligation hereunder (except for the obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party, including but not limited to computer related attacks, hacking, or acts of terrorism ("Force Majeure"), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.

This Agreement is not assignable, transferable or sublicensable by either party except with the other party's prior written consent, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any assignment or transfer made without the required consent or compliance with the foregoing provisions of this Section shall be void and of no effect. No assignment or delegation in violation of this Section relieves the assigning or delegating party of any of its obligations under this Agreement. This Agreement benefits solely the parties and their respective permitted successors and permitted assigns. No third party is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.

12.3 This Agreement, together with all Order Forms, the Privacy Policy, and the Data Processing Addendum, is the complete and exclusive statement of the mutual understanding and agreement of the parties regarding the subject matter of this Agreement and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Except with respect to Order Forms, this Agreement prevails over any terms or conditions contained in any other documentation, and expressly exclude any other document issued by Company in connection with Customer's purchase of the Services (including Company's responses to Customer's requests for quotes, information, and proposals, and Customer's quotes, order acknowledgements, and invoices).

12.4 All amendments, waivers and modifications of this Agreement must be in a writing signed by both parties. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.

12.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

12.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

12.7 This Agreement, and its construction and interpretation and all obligations arising in connection with this Agreement, shall be governed by the substantive laws of the State of Delaware without regard to its conflict of laws provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby submit to the jurisdiction and venue of the state and federal courts located in Kent County, Delaware for all actions related to this Agreement, and both parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection, which they may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

12.8 All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.

12.9 This Agreement may be executed by electronic (.pdf) delivery of original signatures, and in counterparts, both of which shall be considered one and the same agreement and shall become effective when such counterparts have been signed by each party and delivered, including by electronic means, to the other party. Neither party may raise (a) the use of email transmission to deliver a signature or (b) the fact that any signature, agreement or instrument was signed and subsequently transmitted or communicated through the use of email transmission as a defense to the formation or enforceability of a contract, and each party forever waives any such defense.