Terms of Use

This is a legal agreement (“Agreement”) between you, the customer or end user (“you” or “Licensee”) and ClockShark, LLC. (“ClockShark”). This Agreement governs your use of the Service (defined below). This Agreement commences on the first day you have access to the Service (“Commencement Date”).

YOU MUST CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE SERVICE. BY CREATING AN ACCOUNT AND USING THE SERVICE, YOU ARE:

1. REPRESENTING THAT YOU ARE OVER THE AGE OF 18
2. REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND YOU AND/OR YOUR COMPANY AND/OR EMPLOYER, AND
3. CONSENTING TO BE LEGALLY BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS DO NOT USE THE SERVICE.

1. PROPRIETARY RIGHTS
   1. License to Service. Subject to the terms and conditions of this Agreement, including payment of the applicable fees, ClockShark grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revokable, limited license: (I) to use the software as a service solution as provided or made available by ClockShark (“SaaS”); and (II) to access the documentation provided or made available by ClockShark (the “Documentation”). Collectively, the SaaS and Documentation are the “Service.”
   2. Restrictions on Use of Service. The Service is only licensed to Licensee for  internal use by up to the number of users active in Licensee’s account from time to time. In connection with Licensee’s use of the Service, Licensee shall comply with all applicable laws, rules and regulations. Licensee shall not, and shall not permit any third-party to: (I) copy, modify, translate, or create derivative works of the Service; (II) reverse engineer, decompile, disassemble or otherwise attempt reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service; (III) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of third parties; (IV) security test (that is, penetration testing, red teaming, intrusion testing, code review and any other security testing or assessment activities) or load test any ClockShark system without our permission; (V) attempt to circumvent any license, timing or use restrictions that are built into the Service and (VI) will not utilise the Services to send marketing emails and/or other forms of marketing communication without consent (if required) and such consent must be given in accordance with relevant and applicable law.
   3. ClockShark Ownership of Service. Except for the limited rights granted in Section 1.A. above, ClockShark and its licensors retain all right, title and interest, including all intellectual property rights, in and to the Service including any and all modifications, upgrades, updates or customisations thereto. Licensee acknowledges that the Service constitutes ClockShark’s (or its licensor’s) valuable trade secrets and improper use or disclosure would cause ClockShark or its licensors irreparable harm. Accordingly, Licensee agrees to use the Service solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Licensee title or ownership of the Service or a copy of the Service, but only a right of limited use. To the extent you provide any verbal or written ideas, suggestions, feedback, error reports or corrections concerning the Service (“Feedback”), you hereby: (I) assign, transfer and convey to ClockShark all worldwide right, title, and interest in and to any and all Feedback, including, without limitation, any ideas, inventions, discoveries, original works of authorship, findings, conclusions, concepts, and improvements in such Feedback; and (II) agree to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the foregoing. 
   4. Licensee Data. Subject to the terms and conditions of this Agreement, Licensee grants to ClockShark a license to use, store, analyse, transmit, display and back up the graphics, text, data, audio, photos, music, sounds, video or similar information or material provided, uploaded, entered or submitted into the Service by Licensee and/or someone on Licensee’s behalf (collectively, “Data”) to: enable Licensee and its users to use ClockShark’s products and services; allow ClockShark to improve, develop and protect its products and services; create new products and services; communicate with Licensee about ClockShark’s products and services; send Licensee information ClockShark thinks may be of interest to Licensee based on Licensee’s marketing preferences; and disclose to third-party service providers and partners to enable and support such purposes. Licensee represents and warrants that: (I) it owns the Data or otherwise has the right to grant the license to the Data set forth in this Agreement; (II) the use by Licensee or ClockShark of the Data as contemplated herein does not and will not: (a) violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; or (b) result in a breach of contract between you and a third-party. As between you and ClockShark, the Data is and shall remain your property. Commencing day thirty-one (31) following termination of the Service, ClockShark reserves the right to permanently delete the Data. Furthermore, ClockShark may create anonymised statistical data from the Data and the usage of the Service, including through aggregation. Once anonymised, ClockShark may use it for our own purposes.
   5. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO CLOCKSHARK.
2. USE OF THE SERVICE
   1. Licensee Responsibilities. 
      1. Licensee shall (I) be responsible for its (and as applicable, its user’s) compliance with this Agreement, (II) use best efforts to prevent unauthorized access to or use of the Service, and notify ClockShark immediately of any such unauthorized access and/or use of which Licensee becomes aware, and (III) use the Service only in accordance with this Agreement, the Documentation, and all applicable laws and government regulations. 
      2. Licensee shall not (I) make the Service available to any third-party, (II) sell, resell, rent or lease the Service, (III) interfere with or disrupt the integrity or performance of the Service or any third-party data contained on the Service, (IV) attempt to gain unauthorized access to the Service or its related systems or networks, or (V) distribute, upload, transmit, store, make available or otherwise publish or process through the Service, Data that: (1) Is unlawful or encourages another to engage in anything unlawful; (2) contains a virus or any other similar programs or software which may damage the operation of ClockShark’s or another’s computer; (3) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (4) breaches the terms of ClockShark’s privacy notice or any applicable third-party privacy notice; (5) includes any sensitive personal information (such as protected health information) or any information that requires special precautions to protect from unauthorized use (such as payment card information and PINs); or (6) Is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. 
      3. The Service may place phone calls and text messages, which may incur fees with Licensee’s carrier or its user’s carriers. Licensee agrees that ClockShark is not responsible for such fees.
      4. Integrations with third-party platforms. You acknowledge that: (I) integrations with third-party platforms are provided on an "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE” basis; and (II) ClockShark provides no warranty and accepts no liability whatsoever in relation to the third-party platform or any integration therewith. Suggestions, recommendations or resales by ClockShark for, or of, third-party platforms are made by ClockShark without warranty or guarantee of any kind. You assume all responsibility for exercising independent judgment in determining whether the suggestions, recommendation or resales are sufficient for your purposes. The use of third-party platforms may be subject to the third-party vendor’s terms and conditions.
      5. Excluding activities performed by ClockShark (or someone on its behalf), Licensee is responsible for all activities that occur on its account. 
   2. Payment.  Billing will commence on the Commencement Date or, if a free trial period is undertaken, the calendar day following the expiration of the free trial period. The frequency and timing of payment will be as set out at the time of order placement. Subscription fees are payable in advance in respect of the users and products that are active in Licensee’s account from time to time. Fees are payable regardless of usage. Users and/or products added during a billing period will be charged in advance for the remainder of the billing period. Fees prepaid for users and/or products removed during a billing period will be credited against future subscription fees (if any). ClockShark will automatically charge your designated account to pay for subscription fees. ClockShark will continue to charge your designated account to pay for the subscription until the Service ends or you choose a different payment account. Once you place your payment account on file with ClockShark, ClockShark may receive automatic updates of that account information from the financial institution to keep its information current. ONCE AUTHORISED BY YOU, CLOCKSHARK MAY SUBMIT PERIODIC CHARGES WITHOUT YOUR FURTHER AUTHORISATION, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY CLOCKSHARK) THAT YOU HAVE TERMINATED THIS AUTHORISATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE CLOCKSHARK REASONABLY COULD ACT. If you do not create an auto-payment account, you must provide us with payment manually in advance for your subscriptions. If you fail to make payments when due, ClockShark may terminate or suspend your subscription services as further described in Section 8.
   3. Payment for third-party Subscriptions. Licensee may be able to subscribe to third-party services on the Service. The frequency and timing of payment will be as set out at the time of order placement. The third-party vendor’s terms and conditions will apply to such third-party subscriptions and subscription fees may be due in advance and change at any time. If you fail to make payments when due, we may terminate or suspend your subscription services as further described in Section 8. You acknowledge that ClockShark provides no warranty and, except for its role in collecting subscription fees, accepts no liability whatsoever, in relation to third-party subscriptions.
   4. ClockShark may include a: (a) free trial (“Free Trial”); and (b) preview, beta, or other pre-release features or services offered to obtain customer feedback (together,  "Preview"). Free Trials and Previews are made available to you on the condition that you agree to these terms of use. FREE TRIALS AND PREVIEWS ARE PROVIDED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE”. Free Trials and Previews may not be covered by customer support and are subject to any additional notices provided with the Free Trial or Preview. Certain named Previews may be intended for future release at additional cost despite being offered for free during the Preview period. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into general availability.
3. CONFIDENTIAL INFORMATION AND PRIVACY
   1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. ClockShark Confidential Information shall include the Service; any information reasonably requested by ClockShark with respect to Licensee’s use and experience with the Service, including any issues or suggestions related to such use and experience; and information relating to the performance, reliability or stability of the Service, operation of the Service, or know-how, techniques, processes, ideas, algorithms, and software design and architecture of the Service; and Confidential Information of each party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (I) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (II) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (III) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (IV) was independently developed by the Receiving Party.
   2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Receiving Party shall: (I) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (II) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. 
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent it is compelled by law to do so.
   4. Privacy. You agree that: 
      1. ClockShark and its Related Entities (defined below) may monitor you and your user’s use of the Service and may collect and use data and related information, including but not limited to information about you and your user’s use, which may be gathered periodically to ensure compliance with this Agreement, to study and improve the Service, to facilitate the provision of updates, product support and to provide the Service under this Agreement. Furthermore, ClockShark may communicate with you and your users regarding the Service and its functions, and for other requirements of ClockShark. “Related Entities” means any corporation, company, partnership, trust, sole proprietorship or other entity or individual, which: (a) is owned or controlled by such party; (b) owns or controls such party; or (c) is under common ownership or control with such party.
      2. You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of any Data to ClockShark for the duration and purposes of this Agreement.
      3. You consent to us collecting, holding, using and disclosing data in accordance with this Agreement, applicable law and our Personal Data Protection Notice, as amended from time to time by written notice of the same (“Personal Data Protection Notice”), which you agree forms part of this Agreement. A copy of the Personal Data Protection Notice can be found here or provided on request. 
   5. Certain aspects of the Service may permit tracking of individuals and items. It is your sole responsibility to notify and/or obtain the consent of individuals  interacting with, using or being tracked by the Service of such abilities. You must comply with all applicable laws relating to such notifications and/or consents.
4. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME ALL RESPONSIBILITY FOR EXERCISING INDEPENDENT JUDGEMENT IN DETERMINING WHETHER THE SERVICES OR THE MATERIALS GENERATED THEREBY ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. CLOCKSHARK MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND CLOCKSHARK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. CLOCKSHARK DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT THE SERVICE WILL WORK WITHOUT INTERRUPTIONS OR THAT CONTENT LOSS WILL NOT OCCUR.
5. LIMITATION OF LIABILITY. IN NO EVENT SHALL CLOCKSHARK’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
6. INDEMNIFICATION. Licensee shall indemnify, defend and hold ClockShark and its Related Entities, including their employees, officers and directors harmless from any claim, action, suit or proceeding made or brought against ClockShark arising out of or related to (I) Licensee’s breach of any term of this Agreement, or (II) ClockShark’s use of Data in connection with this Agreement. 
7. CAPTURING PAYMENTS. 
   1. ClockShark offers payment capturing services through WePay, Inc. (“WePay”), a third-party payment processor. In order for you to use WePay’s payment processing services, you must register with WePay. The WePay Terms of Service explain that process and are available here: https://go.wepay.com/terms-of-service-us. The WePay Privacy Policy is available here: https://go.wepay.com/privacy-policy. By accepting this Agreement, you agree that you have reviewed the WePay Terms of Service and Privacy Policy for the country in which you are located and agree to them. If you have questions regarding the WePay Terms of Service or Privacy Policy, please refer to the WePay website www.wepay.com or contact WePay at https://support.wepay.com/hc/en-us.
   2. You agree that ClockShark may change payment capturing service providers from time to time with reasonable notice to you of the same.
   3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLOCKSHARK DISCLAIMS ALL LIABILITY IN CONNECTION WITH THE ACTS AND OMISSIONS OF THE PAYMENT CAPTURING SERVICE PROVIDERS. 
8. TERM AND TERMINATION
   1. Term. This Agreement will remain in effect until terminated. 
   2. Termination or suspension by ClockShark. ClockShark reserves the right to suspend or terminate this Agreement, in whole or in part, at its discretion for any reason or no reason at any time upon notice to Licensee, in which case Licensee shall pay all amounts owed to ClockShark under this Agreement. 
   3. Termination by Licensee. Licensee reserves the right to terminate this Agreement for any reason or no reason at any time by selecting “close account” on the “Billing and Payment Screen” within the Service. For security reasons, termination by Licensee can not be effected by email, chat or telephone.  
   4. Fees. Subscription fees are payable until such time as termination is effected. 
   5. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights and licenses granted to Licensee under this Agreement will immediately terminate and Licensee shall cease all access to and use of the Service. 
   6. Refunds. Except as set forth in this Section 8.F., ClockShark does not refund any fees paid or pre-paid. If: (I) an annual subscription is cancelled within 30 days of invoice payment; or (ii) ClockShark terminates this Agreement for a reason other than cause, then ClockShark will make a prorated refund to Licensee.  
   7. Survival. The provisions of Sections 1.C., 1.D., 1.E., 3, 4, 5, 6, 7 and 8 shall survive the termination or expiration of this Agreement for any reason.
9. MISCELLANEOUS
   1. Force Majeure. Excluding a party’s inability to pay debts as they come due, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, failure by a third-party hosting provider, interruption or failure of the internet or any utility service, loss of power, or denial of service attack, pandemics, epidemics, quarantines, stay-at-home and similar orders, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
   2. Assignment. Licensee may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of ClockShark. ClockShark may freely assign this agreement. Any attempted assignment in violation of this Section 9.B. will be null and void.
   3. Export Regulations. Licensee warrants that it will not use the Service in violation of any applicable export or trade embargo laws.
   4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision will be construed, as nearly as possible, to reflect the intentions of the provision will all remaining provisions of this Agreement remaining in full force and effect.
   5. Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of New Mexico without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Albuquerque, New Mexico, and the parties agree and submit to the exclusive jurisdiction and venue of these courts.
   6. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
   7. Waiver. No waiver will be valid unless made in writing. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
   8. Variation to this Agreement. ClockShark may make any changes to this Agreement at ClockShark’s sole discretion by written notice. 
   9. Entire Agreement. This Agreement embodies the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written between the parties regarding the subject matter contained herein.

Updated 17th July 2023.