Terms and Conditions

1. Agreement Structure

The agreement comprises your order and these terms and conditions, as amended from time to time, and governs all services provided to you by ClockShark.

2. License to Services

ClockShark grants you a non-transferable, non-sublicensable and non-exclusive license to access and use, during the term, the services set out in your order, provided that you pay all the applicable fees and comply with the agreement. 

3. Availability

ClockShark will use commercially reasonable efforts to ensure that the core functionality of the ClockShark platform is available 99.5% of the time (excluding scheduled downtime and downtime beyond ClockShark’s reasonable control). Service credits are your sole and exclusive remedy for any failure to meet this uptime guarantee in a given month: 

4. Warranty

ClockShark warrants that the ClockShark platform will perform substantially as described here, as amended from time to time. 

5. Ownership

As between you and ClockShark, you own all intellectual property rights in any data, content and materials that you (or any person on your behalf) input into the services (Client Data). You give ClockShark a license to the Client Data to the extent required for ClockShark to provide the services, improve the services and create analytics about the services. After ClockShark has anonymized the Client Data, it can use it for other purposes. Except for the Client Data, all intellectual property rights in and arising out of or in connection with the services vest in, or remain vested in, ClockShark and its licensors.

6. Hardware and Implementation Training (if applicable)

Any hardware supplied by ClockShark is third-party hardware. It becomes your responsibility upon delivery, regardless of when the title passes. Title to any hardware does not pass to you until it has been paid for in full, notwithstanding termination of the agreement. Until paid in full, you must not sell, transfer, or encumber any hardware and must return it to ClockShark on request if amounts remain unpaid. ClockShark’s only obligation in relation to hardware is to pass through to you any hardware manufacturer warranty that it may receive.

Any prepaid implementation training is valid for 12 months from commencement. Sessions can be rescheduled without charge if you provide at least 5 business days’ notice of the change. 

7. Fees and Renewal

Fees are payable as set out in your order. Late payment may result in interest being charged at the maximum rate permitted by law, and recovery of reasonable costs incurred in collecting overdue amounts. It may also result in suspension or termination. Payments must be made without set-off.

Services renew automatically unless terminated in accordance with your order. 

8. Confidentiality and Personal data

Each party will use reasonable care to keep confidential the other party’s confidential information and may use it solely to perform its obligations or exercise its rights under the agreement. Confidential information means information that a reasonable person would understand to be confidential given the nature of the information and the circumstances of its disclosure. Confidential information does not include information that the receiving party can demonstrate: (a) is or becomes public through no breach of the agreement; (b) was lawfully known to the receiving party prior to disclosure; (c) is independently developed without reference to the disclosing party’s confidential information; or (d) is lawfully obtained from a third party without restriction on disclosure. A party may disclose confidential information where required by law, provided it gives reasonable notice where permitted. For the avoidance of doubt, your order is to be treated as confidential information.  

In connection with personal data, the parties agree to the personal data protection notice here and the data processing addendum here, as these may be amended from time to time. The data processing addendum governs all data security obligations. 

9. Customer Obligations

You agree to comply with all applicable laws and to not misuse, interfere with, reverse engineer, resell, or unlawfully use the services. You agree to make sure that you have all the necessary consents in place for your use of the services. You are responsible for the activity conducted under your account and for ensuring that your users comply with the end-user license agreements. 

10. Customer Acknowledgements

You acknowledge and understand that: 

1. You have exercised independent judgment in determining that the services are sufficient for your purposes.

2. The services are provided based on their current functionality and not on any future features or enhancements.

3. If your subscription term is for a period other than monthly and you add services to your subscription, then those services will be added to your minimum commitment for the balance of the term on a pro-rated basis.

4. ClockShark is entitled to rely on instructions from your authorised representatives (including the signatory or nominee on your order, your director, majority owner or as nominated within the services) until ClockShark is notified otherwise.

5. If you give a third party (e.g. an integration partner) access to your ClockShark account via ClockShark’s Application Programming Interface (or API), ClockShark is not responsible for that party’s acts or omissions via the API. ClockShark reserves the right to restrict or block access to the API for legitimate business or security reasons. 

6. ClockShark may upgrade or modify its services from time to time.

7. You grant ClockShark the right to use your name and logo in marketing and promotional materials, unless you notify us otherwise in writing.

11. Indemnity

ClockShark agrees to indemnify you from losses arising from a claim that your proper use of the ClockShark platform infringes the intellectual property rights of a third party. You agree to indemnify ClockShark from losses arising from breach, misuse or unlawful use of the services and from content infringement.

12. Liability

To the maximum extent permitted by law: (a) the services are provided as-is except as set forth in clauses 3 and 4 above; (b) ClockShark’s liability excludes indirect/consequential losses and losses caused by third party software, third party hardware and third party service providers (including third party integration partners); and (c) ClockShark’s liability is capped at the fees paid by you in the 6 months preceding the relevant claim. For loss or corruption of content, ClockShark's liability is limited to recovery efforts from available backups, which ClockShark hereby confirms are carried out daily.

Free trials and previews are provided on an “as-is”, “with all faults” and “as available” basis. For the avoidance of doubt, clauses 3 and 4 of this agreement do not apply to such trials or previews.

13. Suspension or termination

ClockShark may suspend or terminate access to the services by written notice for breach, security, or legal requirements. To the extent capable of remedy, ClockShark will give you 10 business days to remedy prior to suspension or termination. 

If ClockShark terminates for cause then, without relieving you of any obligation to pay fees accrued or payable prior to termination, all fees payable for the remainder of the then-current term, including all hardware installments, will immediately become due and payable, and you must pay those amounts within thirty (30) days of the termination date. 

During the term, and for 365 days following termination of the services, you will have the opportunity to obtain a backup of the Client Data. Commencing on day 366  following termination, ClockShark reserves the right to permanently delete the Client Data.

14. Amendment

ClockShark will give you at least 60 days advance notice of material changes to these terms and conditions. Those changes will only come into effect at the start of the next subscription term.

15. Force majeure

Excluding a party's inability to pay debts as they come due, neither party is responsible under the agreement if their performance is hindered or prevented by a cause that is beyond their reasonable control.  

16. ClockShark, Notice to ClockShark, Governing Law and Exclusive jurisdiction and venue

ClockShark refers to ClockShark, LLC. Notice given under this agreement must be in writing and sent by email to the email address each party has recently used to communicate with the other. A notice sent by email is deemed received at the time it is sent, unless the sender receives an automated message that the email has not been delivered. This Agreement is governed by the laws of Florida, United States. Each party irrevocably submits to the exclusive jurisdiction of Miami-Dade County. 

To the maximum extent permitted, each party irrevocably and unconditionally waives any right to a trial by jury in respect of any legal action arising out of or related to this agreement. 

The United Nations Convention on Contracts for the International Sale of Goods does not apply.

If you are located in New Zealand, the parties agree that, to the extent permitted by law, the New Zealand Consumer Guarantees Act 1993 does not apply. 

If you are located in Australia, ClockShark does not limit any rights or remedies available to you under the Australian Consumer Law. To the extent permitted by law, ClockShark’s liability for a breach of those rights is limited to re-supplying the services or paying the cost of re-supply.

17. Survival

Any clause capable of surviving termination of this agreement, including confidentiality undertakings, shall survive such termination or expiration.

18. Entire Agreement

This agreement comprises the entire agreement between you and ClockShark.

19. Assignment 

ClockShark may assign this agreement to: (i) a related entity of ClockShark, (ii) an acquirer of all or substantially all of ClockShark's assets applicable to the services; or (iii) a successor by merger or other combination. You may only assign this agreement with ClockShark’s prior written consent, which will not be unreasonably withheld.