Clockwork End User License Agreement
This End User License Agreement (this “Agreement”) is a legal agreement between Clockwork Systems, Inc., a Delaware corporation having its principal place of business at 3000 El Camino Real, Suite 2-100, Palo Alto CA 94306 (“Clockwork”), and you and/or the entity that you represent (“you” or “Customer”) (each a “Party”, collectively “Parties”). This Agreement governs Customer’s use of Clockwork’s high-precision network clock synchronization software and related services (the “Services”). Clockwork may offer the Services as a cloud-based service and/or as an on-premise service at specified Customer facilities. By accessing, installing or using the Services, (i) you acknowledge that you have read, understand, and agree to be bound by this Agreement, (ii) you represent and warrant that you have the authority to enter this Agreement and to bind Customer to the terms of this Agreement. If you do not agree to all terms and conditions of this Agreement, or if you do not have such authority, do not access, install or use the Services.
Each sales quotation, proposal, purchase order, or other ordering document entered by Customer and accepted by Clockwork that references this Agreement (an “Order”) will form part of this Agreement, and will be subject to the terms and conditions contained herein. Without limiting the foregoing, this Agreement will supersede the terms of Customer’s form of purchase order, acknowledgement or other business forms notwithstanding Clockwork’s acceptance or acknowledgement of such forms. If Customer and Clockwork have entered a signed written Agreement that by its terms supplements or supersedes all or portions of this Agreement, to the extent that such agreement does not expressly supersede this Agreement, the terms hereof will govern Customer’s use of the Services.
1.1 Services. During the Term, Customer may access and use the Services set forth in the applicable Order solely for Customer’s internal business operations. Clockwork may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Services from time to time in accordance with this Agreement.
1.2 Software. The Services include any commercially-released software provided by Clockwork to Customer (“Software”). For clarity, the Software includes all updates, bug fixes, improvements, and customizations made available by Clockwork to Customer. Each instance of the Software requires a license key authorized and provided by Clockwork. Clockwork grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to copy, install and use the Software in object code form solely for Customer’s internal business operations.
1.3 Restrictions. All licenses granted herein are subject to the terms and conditions of this Agreement, and the details, payment requirements and restrictions set forth on the applicable Order, including without limitation the territory, usage limits, and the authorized number of instances of the Software and/or license keys. Customer further agrees that Customer will only use the Services, including the Software, in accordance with the user manual(s), service and technical documentation and related publications supplied by Clockwork. For the avoidance of doubt, Customer’s affiliates will not use the Services without Clockwork’s prior written consent. Customer’s use of the Services will not include service bureau use, outsourcing, leasing, renting, reselling, or time-sharing of the Services. Customer will not (and will not permit any third party to): (i) copy, modify, translate, or create derivative works of the Services; (ii) reverse engineer, disassemble or decompile the Services or otherwise attempt to discover the source code, binary code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related thereto; (iii) access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes including without limitation in order to build a similar or competitive product or service; (iv) remove, alter or obfuscate any copyright notices or other proprietary rights notices placed or embedded by Clockwork on or in the Services; (v) use the Services in any application or system that could endanger human life or cause personal injury, or result in catastrophic environmental or property damage (including without limitation, in the operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, motor vehicles or weaponry systems) (“Prohibited Uses”); (vi) circumvent or modify any security technologies included as part of the Services; or (vii) use the Services in a manner that is contrary to applicable law or that violates a third party’s privacy rights or Intellectual Property Rights (as defined below). Customer will only use currently supported versions of the Software.
1.4 Professional Services. The Services may include implementation, configuration, testing or related professional services set forth in the applicable Order (“Professional Services”). Any customizations of the Software or other work product resulting from the Professional Services are part of the Services, and all rights in and to the foregoing will be owned by Clockwork in accordance with Section 4.2.
2. CUSTOMER RESPONSIBILITIES
2.1 Cooperation and Assistance. In order for the Services to be effective, Customer will at all times provide Clockwork with Customer’s good faith cooperation and assistance and make available such information and personnel as may be reasonably required by Clockwork. In the event of any delay in Customer’s performance of any of the obligations under this Agreement or any other delays caused by Customer, Clockwork may adjust the milestones and deployment date or service levels set forth in the Order as reasonably necessary to account for such delays.
2.2 Customer Data. Customer represents and warrants that Customer has all necessary rights and licenses required to provide Customer owned or controlled data that is uploaded, transmitted, or otherwise processed on Customer’s behalf in connection with the Services (“Customer Data”) as set forth in this Agreement, and that by providing such Customer Data in this manner, Customer will not violate any third-party Intellectual Property Rights, confidentiality or contractual obligations, or applicable laws. Customer hereby grants Clockwork and its affiliates a limited, non-exclusive, worldwide, royalty-free right to access, collect, host, use, copy, store, transmit, display, create derivative works of and otherwise process Customer Data, in each case solely to the extent necessary to provide the applicable Services and to manage and improve the Services and Software. Customer acknowledges and agrees that Customer is solely responsible for ensuring that any processing of Customer Data by Clockwork via the Services, and the grant of any rights to Customer Data hereunder to Clockwork, do not violate any applicable laws. Customer will not process any Customer Data in connection with the Services that could be legally considered sensitive in any applicable jurisdiction, including any health information subject to the Health Insurance Portability and Accountability Acts, personal data about individuals under the age of 13, government issued identification numbers (such as Social Security numbers or driver’s license numbers), or financial account information.
2.3 End Users. Customer will not permit access to or use of the Services by anyone other than Customer’s employees, contractors, and other individuals who are authorized by Customer and who have been supplied user identifications and passwords by Customer (or by Clockwork, at Customer’s request). Customer will ensure that its authorized users comply with the terms and conditions of this Agreement. Customer is responsible for all use of the Services by any users that it allows to access the Services. Customer will keep confidential and not disclose to any third parties, and will ensure that all authorized users keep confidential and do not disclose to any third parties, any user IDs, account numbers, passwords or other similar information for the Services. Customer will promptly notify Clockwork of any suspected or alleged breach of this Agreement and will cooperate with Clockwork with respect to: (i) any investigation by Clockwork of any suspected or alleged breach of this Agreement; or (ii) any action by Clockwork to enforce the terms and conditions of this Agreement. Clockwork may suspend or terminate Customer’s or any user’s access to the Services upon notice to Customer in the event that Clockwork reasonably determines that Customer or such user breached this Agreement.
2.4 Customer Network-related Obligations. Customer acknowledges and agrees that it is responsible for procuring and maintaining the network connections that connect the Customer network to the Services, and for complying with logon procedures for services that support such protocols. If Customer uses the Services with third-party products, services or software, including through an integration or plug-in (“Third-Party Services”), Customer’s use of such Third-Party Services is governed solely by the terms of Customer’s relationship with the provider of such Third-Party Services. Clockwork is not responsible for any Third-Party Services.
3.1 Fees. Customer will pay to Clockwork the fees set forth in the applicable Order. Fees will be due in accordance with the payment schedule set forth in the applicable Order. Customer will pay invoices within thirty (30) days of receipt.
3.2 Taxes. The fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on Clockwork’s net income. If Clockwork has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Clockwork with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3 Interest. All amounts not paid when due under this Agreement will accrue interest daily (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full.
3.4 Monitoring and Compliance. Clockwork may monitor at any time the quantity of Software instances or agents used by Customer. In the event Customer’s use does not comply with the restrictions and limitations set forth in the applicable Order, Customer will promptly pay such additional fees and/or take such additional actions in each case as are reasonably necessary to become compliant.
4. OWNERSHIP AND LICENSES
4.1 Customer Materials. As between Clockwork and Customer, Customer owns all rights, title, and interest in and to the Customer Data, including all patent rights, copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world (collectively, “Intellectual Property Rights”) therein. Clockwork will have no rights in any such customer materials except as expressly set forth in this Agreement.
4.2 Clockwork Materials. As between Clockwork and Customer, Clockwork will exclusively own all rights, title, and interest in and to the Services, Software (and all copies of the Software), and any code, tools, utilities, processes, inventions, system, devices, methodologies, specifications, documentation, data (other than Customer Data), techniques and materials of any kind used, generated or developed by Clockwork or its personnel in connection with performing Services (collectively “Clockwork Materials”), including all Intellectual Property Rights therein. For the avoidance of doubt, Clockwork Materials include all work product, modifications, extensions, customizations, scripts or other derivative works of the Software or Services provided or developed by Clockwork and/or its affiliates. Customer will have no rights in any Clockwork Materials except as expressly set forth in this Agreement. Customer will not use Clockwork’s name, logo, or marks without Clockwork’s prior written consent in each instance, and all goodwill developed from any such use will be solely for the benefit of Clockwork.
4.3 Feedback License. If Customer or any of its users provide Clockwork with any feedback, comments or suggestions for improvements or enhancements to the Services (collectively, “Feedback”), Customer grants Clockwork a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into the Services any Feedback for any purpose without obligation to Customer (or to any user) of any kind.
4.4 Open Source. The Software may incorporate open source software, which Customer may access and use under the terms and conditions of the specific license under which the open source software is distributed. This Agreement does not limit Customer’s rights under, or grant Customer rights that supersede, the license terms of any applicable open source license. A list of open source software may be identified in the documentation or provided by Clockwork upon Customer’s written request. Clockwork is not responsible for Customer’s use of any open source software provided with the Software.
5.1 Definition. “Confidential Information” means: (i) information that is disclosed in written form and that is clearly labeled as proprietary, confidential or with words of similar meaning; (ii) information that is disclosed orally or visually and that is identified as proprietary or confidential at the time of its disclosure and is summarized in a writing sent by the disclosing Party to the other Party within thirty (30) days of such disclosure; and (iii) any information that, due to its nature or the circumstances of disclosure, would reasonably be deemed confidential. The terms and conditions of this Agreement, including any pricing information, will be deemed the Confidential Information of both Parties.
5.2 Exclusions. The obligations and restrictions in Section 5.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) is rightfully known by the receiving Party prior to the disclosure of such information from the disclosing Party; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (iv) the receiving Party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing Party.
5.3 Use and Nondisclosure. During the Term and for a period of three (3) years thereafter, each Party will not use the other Party’s Confidential Information for any purpose other than for the performance and enforcement of this Agreement and will not disclose the other Party’s Confidential Information to any party other than to those of its employees and contractors who need to know such Confidential Information for a Party’s performance and enforcement of this Agreement; provided that each such employee and contractor is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Each Party will use the same efforts to protect the confidentiality of the other Party’s Confidential Information that it ordinarily uses to protect the confidentiality of its own confidential information of like importance, but in no event less than reasonable efforts.
5.4 Permitted Disclosure. The foregoing provisions of this Section will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.
5.5 Injunctive Relief. The Parties agree that a breach of this Section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the Parties agree that in addition to any other remedies available at law or hereunder, the disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.
6. WARRANTY AND SUPPORT
6.1 Limited Warranty. Clockwork warrants to Customer that the Services will, in all material respects, conform to the functionality specified in Clockwork’s then-current documentation for the Services. In the event that the Services fail to conform to the foregoing warranty, as Customer’s sole and exclusive remedy and Clockwork’s sole and exclusive liability, Clockwork will use commercially reasonable efforts to modify the Services to correct the non-conformity.
6.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, Clockwork DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Clockwork DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. THE SERVICES ARE NOT DESIGNED, INTENDED, LICENSED OR WARRANTED FOR ANY PROHIBITED USES.
6.3 Support. During the Term, Clockwork will make available to Customer standard support for the Services that is made generally available to similar Customers at no additional cost in accordance with Clockwork’s policies www.clockwork.io, and subject to Customer’s payment of applicable fees, any additional support services set forth in an Order. Clockwork will have no obligation to provide support for (i) any modification of the Software not made or otherwise authorized by Clockwork, (ii) improper installation or use of the Software, including use of the Software with third-party hardware, software or cloud environments that have not been approved by Clockwork, and (iii) any version of the Software that has reached its end of support life.
7.1 Indemnification by Clockwork. Clockwork will defend or settle any action or suit brought against Customer by a third party to the extent that it is based upon a claim that the Services, as provided by Clockwork to Customer pursuant to this Agreement, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will indemnify and hold Customer harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) awarded in final judgment against Customer or payable in settlement with respect to such claim; provided, however, that Clockwork will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Services with equipment, devices, software or data not supplied by Clockwork, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s use of the Services other than in accordance with this Agreement. In the event that Customer’s right to use the Services hereunder is enjoined, or in Clockwork’s reasonable opinion is likely to be enjoined, due to a claim that the Services infringe a third party’s Intellectual Property Rights, Clockwork will at its sole option and expense: (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services so that they are non-infringing and substantially equivalent in function to the enjoined Services; or c) if options (a) and (b) above are not practicable, then Clockwork may terminate Customer’s rights and Clockwork’s obligations hereunder. THE FOREGOING STATES Clockwork’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
7.2 Indemnification by Customer. Except for claims for which Clockwork is obligated to indemnify Customer under Section 7.1, Customer agrees to indemnify, defend and hold Clockwork, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of, or in any way connected with Customer’s or its representatives’ use of the Services.
7.3 Indemnification Requirements. The following are conditions to any claim for indemnification under this Section. The indemnified Party must: (i) promptly notify the indemnifying Party in writing of the claim; (ii) grant the indemnifying Party sole control of the defense and settlement of the claim; and (iii) provide the indemnifying Party, at the indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The indemnified Party reserves the right to retain counsel, at the indemnified Party’s sole expense, to participate in the defense of any such claim. The indemnifying Party may not enter into any settlement that would impose any obligations or liability upon the indemnified Party or that would limit the indemnified Party’s right to access and use the Services, as provided hereunder, without the indemnified Party’s prior written consent.
8. LIMITATION OF LIABILITY
8.1 Exclusion of Damages. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 1.3, OR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ITS CUSTOMERS OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, GOODWILL, REVENUE OR DATA, OR BUSINESS INTERRUPTION OR THE COST OF PROCURING SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, OR DAMAGES TO CUSTOMER’S, ITS CUSTOMER’S OR THIRD PARTIES’ TECHNOLOGY OR PROPERTY.
8.2 Total Liability. IN NO EVENT WILL Clockwork’S TOTAL LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY IN Connection with this Agreement OR CUSTOMER’S ACCESS TO AND USE OF THE ServiceS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO Clockwork UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 Acknowledgement. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY (I) REGARDLESS OF THE FORM OR THEORY ON WHICH A CLAIM OR ACTION IS BASED, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE OR RELIANCE), PRODUCT LIABILITY OR OTHERWISE; (II) EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (III) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT.
9. TERM AND TERMINATION
9.1 Term. The initial term set forth in an Order, together with any renewal term, is the “Term”. This Agreement will remain in effect during the Term, or until terminated in accordance with this Section. Unless otherwise set forth in an Order, the initial term will automatically renew for successive terms of equal length, unless either Party provides at least thirty (30) days written notice of its intention not to renew. The fees for any such renewal term will be the same as during the previous term, unless Clockwork provides Customer at least thirty (30) days written notice of a fee increase, in which case such fee increase will be effective as of the start of the renewal term.
9.2 Free Trial or Evaluation. Clockwork may offer a free trial or evaluation of the Services, and in that case, the Term will expire at the end of the free trial or evaluation period, and any further use of the Services is prohibited unless Customer purchases a subscription to the Services. Clockwork may terminate any free trial or evaluation with ten (10) days written notice.
9.3 Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching Party. Clockwork may terminate this Agreement immediately upon Customer’s breach of Section 1.3, or if Clockwork reasonably believes that Customer’s use of the Services violates applicable law.
9.4 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Customer’s and its Authorized Users’ right to access and use the Services and Software will immediately terminate and Customer and its Authorized Users will immediately cease all use of the Services and Software; and (ii) each Party will return and make no further use of any Confidential Information of the other Party.
9.5 Survival. All fees that have accrued as of the expiration or termination of the Agreement, and the rights and obligations of the Parties under Sections 4, 5, 7, 8, 9.5, and 10 will survive any such expiration or termination.
10.1 Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Clockwork’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer without such consent will be void. “Change of Control” means, with respect to a Party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such Party or (b) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such Party with another entity. Clockwork may freely assign or transfer any or all of its rights and obligations under this Agreement. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the Parties. Upon any assignment or transfer of this Agreement by Customer in accordance with this Section, any license that contains an “unlimited” aspect will, with respect to Customer and its successor as applicable, be capped at the number of authorized instances of the Software in use immediately prior to such assignment.
10.2 Governing Law. This Agreement is to be construed in accordance with and governed by the laws of the State of New York without giving effect to any choice of law rules. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in a federal court in the Southern District of New York or in state court in the County of New York, New York, and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives the right to a trial by jury.
10.3 Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
10.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
10.5 Notices. Any notice or other communication given to a Party under or in connection with the Agreement will be in writing, addressed to that Party at its principal place of business or such other address as that Party may have specified to the other Party in writing in accordance with this Section, and will be delivered personally, sent by pre-paid first-class mail or other next working day delivery service or commercial courier.
10.6 Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
10.7 Relationship between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
10.8 Force Majeure. Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to causes beyond its reasonable control including without limitation acts of God, inclement weather conditions, war, terrorism, governmental action, labor conditions, riot, acts of civil or military authorities, fire, floods, earthquakes, accidents and denial-of-service attacks (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will promptly notify the other Party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
10.9 Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Services, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by such export.
10.10 Entire Agreement. This Agreement, together with any Orders incorporating this Agreement, constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.