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Thanks for signing up for Clerk Chat! We make it easy for you to communicate with your customers and employees via SMS, MMS, voice calls, and more.
Be sure to give this Terms of Service Agreement a careful read, because it is a binding agreement between you, us, and any company you represent or identify as a user when you create an account. Depending on where your company and users are located (and other factors), strict laws may apply that dictate what kind of calls you’re permitted to make, what kind of text messages you’re allowed to send, whether and how recipients need to consent before you contact them, and more.
We think it’s smart to get professional legal advice before communicating with your customers or others via calls or text messages. As we detail in Section 6 below, you bear full responsibility for making sure you are in compliance with all applicable laws regarding text messaging, voice calls, and any other services enabled by our apps.
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Team Clerk Chat
TERMS OF SERVICE AGREEMENT
Clerk Chat, Inc., (“Clerk Chat,” “Company,” “us,” or “we”), provides the https://clerk.chat website and other websites under the Clerk Chat domain (collectively, the “Sites”), and our SaaS product, tools, and related services subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the “Agreement”).
This Agreement explains our obligations to you, and your obligations to us. This Agreement governs your or the company or entity on whose behalf you entered this Agreement or that is otherwise identified on the Order Form (“Customer”) use of the Subscription Services made available by Clerk Chat. Clerk Chat and Customer may be referred to in this Agreement as the “Parties” or individually as a “Party”. Except as noted otherwise below, this Agreement is the entire Agreement between us. By using the Sites and the Subscription Services in any way, you are agreeing to comply with this Agreement, our privacy policy found here (“Privacy Policy”), and any other legal notices or conditions or guidelines posted on the Sites or provided via the Subscription Services. If you have questions regarding this Agreement or about Clerk Chat, please contact us by email at support@clerk.chat
RECITALS.
A. Clerk Chat operates the Subscription Services and provides access to and use of the Subscription Services to its Customers that have purchased access, whether directly from Clerk Chat or through an Authorized Reseller (as defined below).
B. Customer desires to access and use the Subscription Services, and Clerk Chat is willing to provide such access, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
“Acceptable Use Policy” means the policies and use restrictions set forth in Section 2(g) of this Agreement.
“Account” means the Customer’s company-level account for the administration and Use of the Subscription Services.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
“Authorized Reseller” means an authorized Clerk Chat reseller or other billing intermediary for the purchase of the Subscription Services.
“Authorized User” means an employer, contractor or agent of Customer whom Customer has authorized to Use the Subscription Services.
“Clerk Chat IP” means the Subscription Services, the software applications provided in conjunction with the Subscription Services, any other software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Content” means all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Subscription Services.
“Customer Materials” means all Content and other materials, in any form or medium, that Customer or an Authorized User uploads, posts, e-mails, sends in text messages, transmits or otherwise makes available through the Subscription Services or to Clerk Chat in connection with Customer’s and its Authorized Users’ Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Clerk Chat that are made available through or in connection with the Subscription Services.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Clerk Chat to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
“Effective Date” means the date on which the initial Order Form under this Agreement is executed by the Parties.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Initial Term” means the initial subscription period for access to and use of the Subscription Services, as specified in the Order Form.
“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Services as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services based on Customer’s subscription tier.
“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Clerk Chat in writing; (iii) quote issued by Clerk Chat and accepted by Customer, or (iv) an order form (including a renewal order form) issued by an Authorized Reseller and executed by Customer and the Authorized Reseller, in each case which sets forth the applicable Subscription Services and/or Professional Services to be provided by Clerk Chat, and in the case of the documents referred to in clauses (i) through (iii), references this Agreement.
“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
“Professional Services” means the implementation and/or other professional services, if any, to be provided by Clerk Chat to Customer as set forth in the relevant Order Form.
“SMS/MMS Messages” means SMS/MMS text, image, video etc message sent and/or received via the functionality of the Subscription Services. One (1) segment corresponds to 160 characters in length; the 160-character limit is for messages encoded using the GSM-7 character set. Messages not encoded with GSM-7(e.g. with photos or emojis) are limited to 70 characters. The Subscription Services support long messages up to 1600 characters.
“Subscription Services” means the software-as-a-service product, tools and other services provided by Clerk Chat via the Sites, any Clerk Chat applications or APIs (the “Apps”), and hosted services enabled or available via the Sites and the Apps, including functionality provided via the Sites and the Apps that (i) enables Authorized Users to send and receive Short Message Service (“SMS”) messages and may enable (depending on the type of communications account enabled) Multimedia Messaging Service (“MMS”) messages and other messaging types, (ii) enables Authorized Users to communicate with each other by placing, receiving and transferring calls globally (“Calling”) using either existing or provisioned phone numbers through Clerk Chat hosted calling services, (iii) enables Authorized Users to organize, manage, and respond to communications, (iv) provisions a phone number for use as an SMS, MMS, and/or voice response line, and (v) enables other features such as automated responses and other functionality which may be added to the Subscription Services over time, and any updates, patches, bug fixes and upgrades to the Subscription Services that may be provided by Clerk Chat from time to time, in case as identified in the applicable Order Form.
“Term” means, collectively, the Initial Term and any Renewal Terms.
“Use” means to use and/or access the Subscription Services in accordance with this Agreement and the Documentation.
2. SUBSCRIPTION SERVICES; ACCESS AND USE.
(a) Access to Subscription Services. Subject to the terms and conditions of this Agreement, Clerk Chat hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12(g)) right to Use the Subscription Services during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
(b) Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other Person, or otherwise allow any Person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Clerk Chat for use expressly for such purposes; or (viii) use the Subscription Services, Documentation or any other Clerk Chat Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.
(c) Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Subscription Services. Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Clerk Chat if Customer knows or reasonably suspects that any username and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created.
(d) Customer and Authorized User Content. Customer agrees that Customer, and not Clerk Chat, is entirely responsible for all Content that Customer or its Authorized Users transmit, post, or make available through the Subscription Services. Customer assumes all risks associated with Customer’s and its Authorized Users’ Use and transmission of Content and for the Use of Content by others, including any reliance on its accuracy, completeness or usefulness. Clerk Chat makes no guarantees regarding the accuracy, currency, suitability, or quality of any Content. Customer’s and its Authorized Users’ interactions with other users of the Subscription Services are solely between such users, and Clerk Chat will not be responsible for any loss or damage incurred as a result of any such interactions.
(e) No Obligation to Pre-Screen Content. Customer acknowledges and agrees that Clerk Chat has the right, but not the obligation, to pre-screen, refuse or remove any Content and Customer consents to such monitoring. Customer understands that when using the Subscription Services, including chat, text, or voice communications, all Content shared or received is not private. Clerk Chat may review, reject, or remove any Content at its sole discretion, primarily to protect its own interests. This includes removing Content that violates the Acceptable Use Policy or that Clerk Chat considers inappropriate.
(f) Storage, Accuracy and Deletion of Content. Unless expressly agreed to by Clerk Chat in writing elsewhere, Clerk Chat has no obligation to store any of the Content posted, transmitted or made available on or through the Subscription Services. Clerk Chat has no responsibility or liability for the deletion or accuracy of any Content, including Content or for the failure to store, transmit or receive transmission of any Content or communications.
(g) Acceptable Use Policy. Customer agrees not to, and will ensure that its Authorized Users do not: (i) upload, transmit, distribute or make available through the Subscription Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Subscription Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any form of unreasonably duplicative messages, whether commercial or otherwise; (iii) use the Subscription Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Subscription Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Subscription Services (or to other computer systems or networks connected to or used with the Subscription Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Subscription Services; (vii) use software or automated agents or scripts to produce multiple accounts on the Subscription Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Subscription Services, (viii) use Subscription Services in violation of any law or regulation, including without limitation, the federal Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), as amended, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 103 et. seq), the United States’ National Do Not Call Registry, Rules for Carriers Subpart L “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” (47 U.S.C. § 64.1200), and (if applicable) the Canada Anti-SPAM Legislation (S.C. 2010, c. 23 as amended); (viii) use, without Clerk Chat’s prior express written consent in each instance, the Subscription Services to provision an emergency reporting or response system (e.g., Enhanced 912 or E912 emergency service); (ix) to support the operation of a life support system, nuclear facility, aircraft navigation system, air traffic control system or other system critical to human life or safety or (x) assist or encourage any other person or entity to engage in any of the foregoing prohibited activities.
(h) Phone Numbers. Clerk Chat may offer the opportunity to enable Customer to use one or more existing phone numbers with the Subscription Services. If Customer uses such a feature, Customer represents and warrants that (i) Customer will only use the Subscription Services for legal purposes and will comply with all applicable laws and regulations in connection with use of the Subscription Services and any phone number Customer registers or associates with Customer’s account, (ii) Customer has procured any and all necessary rights and licenses, and has the full power and authority, necessary to use any phone number Customer registers or associates with Customer’s account, and (iii) Customer will not use the Subscription Services on or with a phone number that has been exchanged with, rented, or purchased from a third party unless Customer has received permission from the third party to do so.
(i) Enforcement. If Clerk Chat becomes aware of any possible violations by Customer or its Authorized Users of this Agreement, including the Acceptable Use Policy, Clerk Chat reserves the right to investigate such violations. If, as a result of the investigation, Clerk Chat believes that unlawful activity has occurred, Clerk Chat reserves the right to refer the matter to, and to cooperate with, any and all relevant legal authorities. Clerk Chat is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Subscription Services, including Content, in Clerk Chat’s possession in connection with use of Subscription Services, to (i) comply with applicable laws, legal process or governmental requests; (ii) enforce the Terms, (iii) respond to any claims that Content violates the rights of third parties, (iv) respond to requests for customer service, or (v) protect the rights, property or personal safety of Clerk Chat, its users or the public, and all enforcement or other government officials, as Clerk Chat in its sole discretion believes to be necessary or appropriate. Clerk Chat reserves the right to take appropriate action against Customer in Clerk Chat’s sole discretion if Customer or its Authorized Users violate the Acceptable Use Policy or this Agreement, including, without limitation removing or modifying Content and terminating Customer’s account.
(j) Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. Clerk Chat does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.
(k) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Clerk Chat reserves and, as between the Parties will solely own, the Clerk Chat IP and all rights, title and interest in and to the Clerk Chat IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(l) Feedback. From time-to-time Customer or its employees, contractors, or representatives may provide Clerk Chat with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants Clerk Chat a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Clerk Chat’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.
3. FEES AND PAYMENT.
(a) Direct Customer Billing. Customers will pay Clerk Chat the non-refundable fees set forth in the relevant Order Form (“Fees”) in accordance with the terms therein and without offset or deduction. Except as otherwise provided in the relevant Order Form, Clerk Chat will issue annual invoices directly to Customers during the Term, and Customers must pay all amounts set forth on any invoice no later than thirty (30) days after the date of such invoice. For Customers using automatic billing, Clerk Chat will charge Customer’s selected payment method (credit card, debit card, or other available method) for Fees on the applicable payment date, including any applicable taxes. If Clerk Chat cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Clerk Chat will attempt to charge the payment method again after Customer updates its payment method information. In accordance with local law, Clerk Chat may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
(b) Fee Changes. Clerk Chat reserves the right to change the Fees or applicable charges and to institute new charges upon thirty (30) days’ prior notice at the end of the Initial Term or then-current Renewal Term.
(c) Payment Disputes. Direct Customers agree to raise any billing disputes within thirty (30) days of the invoice date. Customers purchasing the Subscription Services via an Authorized Reseller agree to address billing disputes directly with their Authorized Reseller. Clerk Chat is not responsible for billing disputes between Authorized Resellers and Customers, which are governed by the Reseller Agreement (as defined below).
(d) Automatic Renewal. Following the Initial Term, and unless otherwise noted on the Order Form (including with an Authorized Reseller), Customer’s subscription to the Subscription Services will automatically renew for consecutive periods equal to the length of the Initial Term (each, a “Renewal Term”).
(e) Cancellation. Customer may cancel their subscription to the Subscription Services upon at least sixty (60) days’ prior written notice to Company (or Authorized Reseller if applicable). If Customer cancels the Subscription Services, Customer may Use the Subscription Services until the end of the Initial Term or then-current Renewal Term; the Subscription Services will not be renewed after the then-current period expires. Subject to applicable law, however, Customer will not be eligible for a prorated refund of any portion of the Fees paid for any portion of, as applicable, the Initial Term or then-current Renewal Term.
(f) Free Trials and Other Promotions. Any free trial or other promotion that Customer with access to the Subscription Services must be used within the specified time of the trial or promotion. Unless otherwise noted in the applicable offer description, at the end of the trial period, Customer’s use of the Subscription Services will expire and any further use of the Subscription Services is prohibited unless Customer pays the applicable Fee.
(g) Payments. Payments due to Clerk Chat under this Agreement must be made in US dollars via wire transfer or credit card of immediately available funds to an account designated by Clerk Chat or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. Upon renewal of Customer’s subscription for the Subscription Services, Customer’s payment card or other selected payment method will be charged the Company’s then-current subscription fee for the Subscription Services based on the plan or subscription tier selected when Customer signed up for the Subscription Services and at the beginning of each subsequent Renewal Term until the Subscription Services are canceled in accordance with this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Clerk Chat may suspend access to the Subscription Services until all payments are made in full. Customer will reimburse Clerk Chat for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
Clerk Chat currently uses Stripe Inc. (“Stripe”) as its payment processing services providers. By purchasing any of the Subscription Services, Customer agrees to be bound by Stripe’s U.S. Terms of Service available at Stripe Terms and Privacy Policy. Customer hereby consents to provide and authorize the Clerk Chat, Stripe, and any other payment services provider Clerk Chat may engage to share any information and payment instructions Customer provides to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information. By providing Clerk Chat with Customer’s credit card number and associated payment information, Customer agrees that Clerk Chat is authorized to invoice or charge your Account for all fees and charges due and payable to Clerk Chat hereunder and that no additional notice or consent is required. Customer agrees to immediately notify Clerk Chat of any change in Customer’s billing address or the credit card account used for payment hereunder.
(h) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Clerk Chat hereunder, other than any taxes imposed on Clerk Chat’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Clerk Chat hereunder, Customer will pay an additional amount, so that Clerk Chat receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
(i) Reseller Billing and Payments.
(i). Resold Services. This Section 3(i) applies only if Customer orders the Subscription Services from an Authorized Reseller under the terms of a separate agreement between Customer and the Authorized Reseller regarding purchase of the Subscription Services (“Reseller Agreement”). For purposes of this Agreement, such Subscription Services are the “Resold Services”.
(ii). Payment Terms. Section 3(a) through Section 3(h) of this Agreement does not apply to the Resold Services. Customer will pay the fees (“Reseller Fees”) for Resold Services used or ordered by Customer to the Authorized Reseller as agreed to by Customer and Authorized Reseller. All prices for the Resold Services will be solely determined between the Authorized Reseller and Customer. If Customer seeks a refund or service credit from the Authorized Reseller, Clerk Chat may in its sole discretion: issue the refund or service credit to the Authorized Reseller, which refund or service credit the Authorized Reseller will promptly revert to the Customer. In the event of termination of this Agreement, Clerk Chat will send the Authorized Reseller (not Customer) the final invoice for payment obligations related to Resold Services. If the Authorized Reseller fails to pay an undisputed invoice for Resold Services to Clerk Chat due to Customer’s failure to pay the Authorized Reseller, Clerk Chat may suspend Customer’s access to the Subscription Services.
4. CONFIDENTIAL INFORMATION.
(a) Definitions. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of Clerk Chat. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in this Agreement will limit or restrict Clerk Chat’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Clerk Chat or its personnel acquire or obtain in connection with the performance of Clerk Chat’s obligations hereunder.
(b) Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Clerk Chat may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(c) Effective Period. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(d) Disclosure of this Agreement to Advisors. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
5. CUSTOMER MATERIALS AND DATA.
(a) Customer Materials. Clerk Chat acknowledges that, as between Customer and Clerk Chat and except as set forth in Section (b), Customer owns and retains all right, title and interest in and to all Customer Materials.
(b) License to Customer Materials. Customer hereby grants Clerk Chat a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Subscription Services, Professional Services and Clerk Chat’s other related products, services and technologies during the Term.
(c) Customer Representations. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Clerk Chat’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
6. DISCLAIMER OF WARRANTIES AND CONDITIONS.
(a) Disclaimers. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SUBSCRIPTION SERVICES IS AT CUSTOMER’S SOLE RISK, AND THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CLERK CHAT EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) *No Warranties. CLERK CHAT MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (I) THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (II) USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SUBSCRIPTION SERVICES WILL BE ACCURATE OR RELIABLE.
(c) Disclaimer of Use of Content. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SUBSCRIPTION SERVICES IS ACCESSED AT CUSTOMER’S OWN RISK, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY, INCLUDING, BUT NOT LIMITED TO, COMPUTER SYSTEMS AND ANY DEVICES USED TO ACCESS THE SUBSCRIPTION SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(d) Disruptions. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CLERK CHAT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SUBSCRIPTION SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(e) No Professional Advice. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLERK CHAT OR THROUGH THE SUBSCRIPTION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(f) Beta Features. FROM TIME TO TIME, CLERK CHAT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS AND CUSTOMERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CLERK CHAT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION 6 APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
(g) Limitation by Law. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.
(h) No Responsibility for Third Parties. CUSTOMER ACKNOWLEDGES AND AGREE THAT CLERK CHAT IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD CLERK CHAT LIABLE, FOR THE CONDUCT OF OTHER USERS, OTHER CUSTOMERS, OR ANY OTHER THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SUBSCRIPTION SERVICES. CUSTOMER UNDERSTANDS THAT CLERK CHAT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SUBSCRIPTION SERVICES.
7. INDEMNIFICATION.
(a) Clerk Chat Indemnification. Subject to Section (b), Clerk Chat will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Clerk Chat (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Clerk Chat’s obligations under Section (a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Clerk Chat; (iv) modifications to the Subscription Services by anyone other than Clerk Chat; or (v) combinations of the Subscription Services with software, data or materials not provided by Clerk Chat.
(d) IP Remedies. If Clerk Chat reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Clerk Chat may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Clerk Chat determines that neither alternative is commercially practicable, Clerk Chat may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Clerk Chat will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
(e) Customer Indemnification. Customer will defend Clerk Chat against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the restrictions in Section 2(a) and in each case, will indemnify and hold harmless Clerk Chat against any damages and costs awarded against Clerk Chat or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
(f) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8. LIMITATIONS OF LIABILITY.
(a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CLERK CHAT IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Total Liability. IN NO EVENT WILL CLERK CHAT’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE CLERK CHAT IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO CLERK CHAT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT CLERK CHAT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CLERK CHAT AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
(d) Technical Support. Customer acknowledges and agrees that Authorized Reseller may disclose Authorized User personal data to Clerk Chat as reasonably required in order for Authorized Reseller to handle any support issues that Customer escalates to or via Authorized Reseller.
9. PURCHASES MADE VIA AUTHORIZED RESELLERS.
(a) Applicability of Section 9. Liability Cap. For the purposes of Section 8 (Limitations of Liability), where the event giving rise to liability is a breach of this Agreement or otherwise arises in connection with the Resold Services, Fees as it is used in Section 8 means Reseller Fees. If Customer or Clerk Chat brings a claim under this Agreement, then for the purposes of establishing the liability cap under Section 8(b), upon Clerk Chat’s request, Customer will (i) promptly disclose to Clerk Chat the amount of any Reseller Fees paid or payable under the Reseller Agreement; (ii) consent to the Authorized Reseller disclosing such amount to Clerk Chat, notwithstanding any of Authorized Reseller’s confidentiality obligations under the Reseller Agreement; and (ii) procure any consents necessary to enable Customer’s or Authorized Reseller’s disclosure under this Section 9. This Section 9 applies only if Customer orders the Resold Services from an Authorized Reseller under the terms of a Reseller Agreement.
10. COPYRIGHT POLICY.
(a) Company respects the Intellectual Property Rights of others and asks that Customer does the same. In connection with the Subscription Services, Clerk Chat has adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of the Subscription Services who are repeat infringers of Intellectual Property Rights, including copyrights.
11. TERM AND TERMINATION.
(a) Term. This Agreement commences on the Effective Date and will remain in full force and effect during the Term, unless terminated earlier in accordance with this Agreement.
(b) Prior Use. Notwithstanding the foregoing, if Customer used the Subscription Services prior to the Effective Date, Customer hereby acknowledges and agrees that this Agreement commenced on the date Customer first used the Subscription Services and such date will be the “Effective Date” for purposes of this Agreement.
(c) Termination of Services by Company. Clerk Chat may suspend or terminate Customer’s rights to use the Subscription Services (including your Account) at any time if (a) Customer (including any of its Authorized Users) breaches any of its obligations under this Agreement, including, without limitation, the payment obligations or the Acceptable Use Policy in Section 2(g), (b) Customer violates any applicable law, rule or regulation, or (c) Clerk Chat is required to do so by law (e.g., where the provision of the Sites, the App, or the Subscription Services is, or becomes, unlawful). Customer agree that Clerk Chat shall not be liable to Customer or any third party for any termination of Customer’s Account.
(d) Termination of Services by Customer. If Customer wants to terminate the Subscription Services provided by Clerk Chat, Customer may do so by notifying Clerk Chat in writing of cancellation of Customer’s subscription in accordance with Section 3(e)..
(e) Effect of Termination. Termination of the Subscription Services includes removal of access to the Subscription Services and barring of further Use of the Subscription Services. Termination of the Subscription Services may also include deletion of Customer’s password and all related information, files and Content associated with Customer’s Account (or any part thereof), including Customer’s Content. Upon termination of the Subscription Services, Customer’s right to use such Subscription Services will automatically terminate immediately. Customer understands that any termination of Subscription Services may involve deletion of Content associated therewith from Clerk Chat’s live databases. Clerk Chat will not have any liability whatsoever to Customer for any suspension or termination, including for deletion of Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Subscription Services and Customer’s access to the Subscription Services, including without limitation, ownership provisions, Content licenses, warranty disclaimers, indemnification obligations, all provisions relating to dispute resolution and arbitration, governing law and limitations of liability.
(f) No Subsequent Registration. If Customer’s registration(s) with or ability to access the Subscription Services is discontinued by Clerk Chat due to Customer’s violation of any portion of this Agreement, Customer agrees that it shall not attempt to re-register with or access the Subscription Services through use of a different user name or otherwise, and Customer acknowledges that it will not be entitled to receive a refund for fees related to those Subscription Services to which its access has been terminated. In the event that Customer violates the immediately preceding sentence, Clerk Chat reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to Customer.
12. GENERAL.
(a) Amendments. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
(b) Dispute Resolution. All disputes under or relating to this Agreement shall be resolved by mandatory binding arbitration. The arbitration proceeding shall be administered by JAMS. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at JAMS; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at JAMS. If there is any inconsistency between the terms of this Agreement and any such rules, the terms and procedures set forth in this Agreement shall control. A single arbitrator will resolve the dispute and shall be selected by mutual written agreement of the Parties. If the Parties are unable to agree to an arbitrator, JAMS shall select and appoint the arbitrator. The arbitration shall be conducted in San Francisco, California, and the Parties irrevocably consent to such venue. All statutes of limitation applicable to any dispute shall apply to any arbitration proceeding. All discovery activities shall be expressly limited to matters directly relevant to the dispute being arbitrated and subject to limitation by the arbitrator to a level commensurate with the amount in controversy and complexity of the issues involved. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.
(c) Equitable Relief. Customer hereby acknowledges and agrees that any breach of if this Agreement relating to Clerk Chat’s Intellectual Property Rights or Confidential Information may cause Clerk Chat to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone. Accordingly, Customer agrees that, notwithstanding the Parties’ consent to binding arbitration in Section 12(b), and in addition to any other rights and remedies that Clerk Chat may have at law or otherwise with respect to such a breach, Clerk Chat will have the right to seek specific performance, injunction or other appropriate equitable relief from a court of competent jurisdiction.
(d) Export Control. Customer may not use, export, import, or transfer the Subscription Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Subscription Services, and any other applicable laws. In particular, but without limitation, the Subscription Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Subscription Services, Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer will not use the Subscription Services for any purpose prohibited by law.
(e) Consumer Complaints. Clerk Chat is located at the address in Section (j). If you are a consumer and a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(f) Consent to Receive Calls, Texts and Other Electronic Communications. The communications between Customer and Company use electronic means, whether Customer uses the Subscription Services or send Clerk Chat emails or text messages, or whether Clerk Chat posts notices on the Subscription Services or communicates with Customer via email, text messages or other electronic means. By agreeing to this Agreement, Customer provides express written consent for Clerk Chat and its representatives to contact Customer at any time using any telephone number or email address you provide or associate with your account via text messages, phone calls, or e-mails for any matters relating to Customer’s use of the Subscription Services. Customer further agree that Clerk Chat may use automatic telephone dialing systems and/or prerecorded or artificial voice message for purposes of such communications. For contractual purposes, Customer (a) consents to receive communications from Clerk Chat in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Clerk Chat provides to Customer electronically satisfy any legal requirement that such communications would satisfy if set forth in a hardcopy writing. The foregoing does not affect Customer’s non-waivable rights.
(g) Entire Agreement; Assignments. This Agreement constitutes the entire agreement between the Parties regarding the Use of the Subscription Services. Failure by either Party to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The relationship between the Parties is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent. This Agreement, and Customer’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Customer without Clerk Chat’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Clerk Chat may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
(h) Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any conflict of law or other principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(i) Copyright/Trademark Information. Copyright © 2024 Clerk Chat Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Subscription Services are Clerk Chat IP or the property of third party owners. Customer is not permitted to use these Marks without Clerk Chat’s prior written consent or the consent of their respective owners.
(j) Contact Information: Clerk Chat’s contact information is as follows:
Address: 201 Spear St, Floor 6, San Francisco, CA 94105
Telephone: 888-572-5375
Email: support@clerk.chat
