Terms of Services effective starting date is October 5, 2019.
This Terms of Services Agreement (“ToS” or “Agreement”) is a binding legal agreement between you, either as an individual or an entity and its Affiliates (“Licensee”) and Clerk (“Licensor”) concerning its Software (as defined below). An amendment or addendum to this Agreement may accompany the Software, and any such amendment or addendum shall be considered part of the Agreement.
By installing, copying, downloading or otherwise using the Software, or by clicking a box indicating your acceptance, Licensee agrees to be bound by the terms of this Agreement. If you are entering into this agreement on behalf of an entity, you represent that you have the authority to bind such entity to the Agreement and are agreeing to the Agreement for that entity.
IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN LICENSEE MUST NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
“Accessible Code” means source code that is unprotected and accessible.
“Affiliate” means another entity controlled by or under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Application” means the Atlassian JIRA application within which the Software runs.
“Authorized User” means a person who accesses and uses the Software under a User License.
“Cloud Products” means Clerk Software hosted in the cloud.
“Embedded Software” means any third party software licensed by Licensor from a third party and embedded in the Software.
“Fees” mean all fees and expenses payable by the Licensee to Licensor in acquiring the Software and as applicable any Maintenance or User Licenses.
“Free License” means a license for which the Fees are waived by Licensor.
“Maintenance” means the provision by Licensor to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
“Media” means all images, icons, text files, pdfs or other static non-code assets contained within the Software.
“OEM Distribution” means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription.
“Paid License” means a license for which Fees have not been waived by Licensor.
“Parties” means either Licensor or the Licensee or both.
“Protected Code” means any source code that is protected against access by the Licensee and any third party without Licensor’s prior written permission and is otherwise not accessible under this Agreement.
“Purchase” means acquisition of a license to use the Software from a Reseller or Licensor.
“Reseller” means a third party selling and distributing Licensor services, products, or both, under authorization from the Licensor.
“Software” means the Licensor’s Clerk branded software and may include computer software, Accessible Code and Protected Code, associated media, Media, printed materials, electronic documentation, Internet-based services and Embedded Software.
“User License” means a license granted under this Agreement to the Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.
The Software is licensed, not sold. Upon Licensee’s acceptance of this Agreement, Licensor grants the Licensee the right to use the Software as follows:
2.1.1 Authorized Users. The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Licensor.
2.1.2 Backup. The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. Only the minimum number of backup copies may be made.
2.2.1 Installation and Use. Licensor may in its sole discretion provide evaluation copies of the Software, which may have limited functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. On the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
2.3.1 Scope. Each license granted by Licensor under this Agreement is worldwide, nonexclusive and non-transferable, unless otherwise specified in writing.
Licensee agree not to (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software; (b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form any part of or the whole of the Software or any data/information not owned by the Licensee; (c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and (d) directly or indirectly access or use any Embedded Software independently of the rest of the Software.
2.3.2 Duration. Subject to the terms of this Agreement and unless terminated earlier in accordance with this Agreement, the term granted hereunder shall be: (a) for a Paid License of the downloaded Software – perpetual; (b) for a Cloud Product – the period of time of the Paid License subscription or renewal, or (c) for an Evaluation License – the Evaluation Period.
2.3.3 Protection Mechanisms. The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor and its third party suppliers. Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of this license.
2.3.4 Permitted Computers. Except as otherwise agreed in writing by Licensor, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.3.5 Responsibility for Non-controlled systems. If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this Agreement are complied with by users of such Non-controlled Systems and the Licensee will indemnify Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Non-controlled Systems.
The Licensee must pay all Fees by the due date and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this Agreement.
4.1 Supplemental Software and Services. This Agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software (“Supplemental Software”), unless Licensor provides additional terms with any Supplementary Software.
4.2 Support Services. Licensor may offer support services, and such services may be subject to the payment of additional fees. Any such support services will be the subject of a separate agreement.
5.1 Ownership and Reservation of Rights. Licensor retains all rights, title and interest in and to the Software (other than Embedded Software), as well as all intellectual property rights (such as copyright, patent and trademark) in and to the Software not expressly granted to Licensee in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software hereunder.
5.2 Embedded Software. The Licensor’s Software contains Embedded Software that is licensed from its respective third party owner. Additional obligations may apply to the use of Embedded Software by the Licensee that is not in accordance with the use of the Software under this Agreement. In such circumstances, the Licensee must acquire any licenses and consents from the relevant third parties for the use of any Embedded Software by the Licensee.
5.3 Licensee shall not remove markings. Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of Licensor.
6.1 General. If the Licensee breaches or materially breaches any of its obligations, or causes a breach of its obligations which cannot be cured, then the Licensee must immediately report such breach to Licensor, in writing as required in Section 16.
6.2 Breach of Additional Licenses. Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor, any third party owner of Embedded Software, or both are entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this Agreement, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
7.1 Without prejudice to any other rights and in addition to any other termination rights in this Agreement, Licensor may terminate with immediate effect, this Agreement if: (a) the Licensee fails to comply with the terms and conditions of this Agreement; (b) Licensee or a third-party commences a judicial or administrative proceeding under a law relating to insolvency for the purpose of reorganizing or liquidating the Licensee or restructuring its debt; (c) a person is appointed or authorized by law or under a contract, to take charge of property of the Licensee for the purpose of enforcing a lien against that property, or for the purpose of general administration of that property for the benefit of the Licensee’s creditors; or (d) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts.
7.2 Upon termination of a license granted under this Agreement, the Licensee must at its own cost as soon as is reasonably practicable: (a) cease access to and cease use of the Software; (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems, including archival or backup systems; and (c) provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
7.3 Upon at least 30 days notice, Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
7.4 Survival. All sections which reasonably should survive termination of this Agreement will survive, such as Sections 1, 5, 8-10, 12, 14-16.
8.1 Indemnification by Licensor. Subject to Section 10, Licensor will indemnify and hold harmless Licensee against any claim, demand, loss, or damages (including attorney fees and costs) arising out of or related to: (a) the infringement of a third party’s intellectual property rights related to Licensee’s or its Authorized Users use of the Software.
If the Software becomes, or in the opinion of Licensor may become, the subject of a claim of infringement of any third party’s intellectual property rights, Licensor may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) terminate immediately this Agreement and refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of Licensor and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Licensor under this Agreement.
8.2 Indemnification by Licensee. Licensee will indemnify and hold harmless Licensor against any claim, demand, loss or damages (including attorney fees and costs) arising out of or related to: (a) Licensee’s data, (b) the Licensee’s or its Authorized Users use of the Software, or (c) Licensee’s breach of the Agreement.
8.3 Indemnification Procedure. The party seeking indemnification must notify promptly the party providing indemnification of the claim, give the party providing indemnification sole control of the defense and related settlement negotiations, and the party seeking indemnification must provide the party providing indemnification with reasonable assistance and information, but no cost or expense shall be incurred for the account of the party seeking indemnification without its prior written consent.
Except as expressly stated in the Agreement, Licensor and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS. To the maximum extent permitted by applicable law, Licensor hereby disclaims all other warranties or remedies, whether express, implied or statutory, including but not limited to the performance, condition, merchantability, fitness for a particular purpose, data accuracy, availability, quality, reliability, or that errors and defects will be corrected. Additionally, Licensee acknowledges that Licensor’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to a third party’s Service Level Agreement.
10.1 Licensor is not liable for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; (b) the cost of procurement of substitute goods, technology or services; or (c) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if Licensor has been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with your use of or access to the Software.
10.2 The maximum liability of Licensor under this Agreement shall not exceed three times the Fees actually paid by the Licensee for the Software during the past three months.
10.3 The limitations and exclusions in this Section apply to the maximum extent permitted by law.
During the term of this Agreement, Licensee grants Licensor the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny Licensor this right at any time by submitting a written request via email (could be found in the contact us section of Clerk website — helloclerk.io) and requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
If Licensee is subject to EU Data Protection Law (e.g., the General Data Protection Regulation (GDPR)), Licensee agrees to execute the Clerk Data Processing Agreement that could be found here https://helloclerk.io/legal.
15.1 Governing Law and Venue. Any disputes or claims arising out of or in connection with the subject matter or formation (including non-contractual disputes or claims) of the Agreement are governed by and construed in accordance with the laws of Ukraine, and the Ukrainian Courts shall be the competent courts of jurisdiction.
15.2 Exception from Jurisdiction. Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g., local courts at the Licensee place of residence).
15.3 Exclusion of UN Convention. The United Nations Convention on Contracts for the Sale of Goods does not apply.
16.1 Entire Agreement. This Agreement (and any addendum or amendment to it which is included with the Software) is the entire agreement between the Licensee and Licensor relating to the Software and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement.
All notices to Licensor will be sent to the email address that could be found in the contact us section of the Clerk website helloclerk.io.
All notices to Licensee will be sent to the physical address or the email address provided by Licensee upon Purchase of the Software.
Notices sent by mail shall be sent by certified mail or overnight courier and will be considered received upon receipt. Notices sent by electronic mail will be received upon confirmed receipt by the recipient.
16.3 Waiver. Any waiver by Licensor of any default shall not constitute a waiver of any subsequent default. Moreover, any waiver by Licensor must be in writing.
16.4 Severability. If any term of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term .
16.5 No Partnership. Nothing in the Agreement is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
16.6 Interpretation. In this Agreement, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a party includes its personal representatives, successors or permitted assigns; (c) the headings in this Agreement are inserted for convenience only and shall not affect its construction; (d) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it; (e) a reference to one gender includes a reference to the other gender; (f) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (g) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
16.7 Assignment. Licensee may assign this Agreement with Licensor’s prior written consent, which shall not be unreasonably withheld. Licensor may assign its rights and obligations under this Agreement without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
17.1 Only the business entity can be the Licensee. Only business entities can use the Software.