Clockwork Terms of Service – Clockwork
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Clockwork Terms of Service

Last Updated: Oct 26, 2020

Please read these Terms of Service (the “Terms”) and our Privacy Policy (https://www.likeclockwork.com/s/privacy-policy ) (“Privacy Policy”) carefully because they govern your use of the “Robot”, an autonomous machine (including all related software) that applies nail polish, including for use in manicures, and the website located at https://www.likeclockwork.com (“Site”), offered by Elementree Inc., d/b/a Clockwork (“Clockwork”).

IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CLOCKWORK THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.

1. Agreement to Terms. By clicking on the “I accept” button or using the Robot, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Robot.

2. Privacy Policy. Please review our Privacy Policy, which also governs your use of the Robot and Site, for information on how we collect, use and share your information.

3. Changes to these Terms or the Robot. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Robot. If you use the Robot and Site after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Robot and Site anymore. Because the Robot is being continually developed over time we may change or discontinue all or any part of the Robot, at any time and without notice, at our sole discretion.

4. Who May Use the Robot?
You may use the Robot and avail yourself of the services provided by the Robot only if you are at least 13 years or older and capable of forming a binding contract with Clockwork.

5. Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Robot (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.

6. Fees. You agree to pay fees for your use of the Robot and the services provided to you by the Robot that are communicated to you when you sign up to use the Robot and corresponding services.

7. Your Content.

(a) Posting Content. Clockwork may allow you to store or share content such as text (in posts or communications with others), images, audio, video and other works of authorship. Anything (other than Feedback) that you post or otherwise make available through the Site is referred to as “User Content”. Clockwork does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.

(b) Permissions to Your User Content. By making any User Content available through the Site you hereby grant to Clockwork a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify (for formatting purposes only), distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Robot and corresponding services provided by the Robot.

(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Site, nor any use of your User Content by Clockwork on or through the Site will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(d) Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Site. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

(e) Clockwork’s Content and Data. Clockwork may make available through the Robot and Site content that is subject to intellectual property rights. Clockwork retains all rights to that content. Further, as between Clockwork and you, Clockwork will solely own all right, title and interest (including all intellectual property rights) in and to any images that are collected and generated by the Robot (“Robot Data”), including photos of your manicure taken by the Robot, when you interact with the Robot and avail yourself of its services. You convey, transfer and assign and agree to convey, transfer and assign all of your right, title and interest (including all intellectual property rights) that you may have in and to any Robot Data to Clockwork.

8. Rights and Terms for Use of the Robot.

(a) If you comply with these Terms, Clockwork grants to you a limited non-exclusive, non- transferable license, with no right to sublicense, to access and use the Robot and corresponding services. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Robot; (ii) distribute, transfer, sublicense, lease, lend or rent the Robot to any third party; or (iii) reverse engineer, decompile or disassemble the Robot (unless applicable law permits, despite this limitation).

9. General Prohibitions and Clockwork’s Enforcement Rights. You agree not to do any of the following:

(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

(b) Use, display, mirror or frame the Robot or Site or any individual element within the Robot or Site, Clockwork’s name, any Clockwork trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Clockwork’s express written consent;

(c) Access, tamper with, or use non-public areas of the Robot or Site, Clockwork’s computer systems, or the technical delivery systems of Clockwork’s providers;

(d) Attempt to probe, scan or test the vulnerability of any Clockwork system or network or breach any security or authentication measures;

(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Clockwork or any of Clockwork’s providers or any other third party (including another user) to protect the Robot and Site;

(f) Attempt to access or search the Site or download content from the Site using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Clockwork or other generally available third-party web browsers;

(g) Use any meta tags or other hidden text or metadata utilizing a Clockwork trademark, logo URL or product name without Clockwork’s express written consent;

(h) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the services of the Robot;

(i) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;

(j) Collect or store any personally identifiable information from the Site from other users of the Site without their express permission;

(k)  Impersonate or misrepresent your affiliation with any person or entity;

(l)  Violate any applicable law or regulation; or

(m)  Encourage or enable any other individual to do any of the foregoing.

Clockwork is not obligated to monitor access to or use of the Site or to review or edit any content. However, we have the right to do so for the purpose of operating the Site, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Site. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

10. DMCA/Copyright Policy. Clockwork respects copyright law and expects its users to do the same. It is Clockwork’s policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

11. Links to Third Party Websites or Resources. Clockwork may allow you to access third-party websites or other resources through the Site. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.

12. Termination. We may suspend or terminate your access to and use of the Robot and Site, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at support@likeclockwork.com. Upon any termination, discontinuation or cancellation of your account, the following Sections will survive: 7(b), 7(c), 7(e), 12, 13, 14, 15, 16, 17 and 18.

13. Warranty Disclaimers. THE ROBOT (AND ANY SERVICES PERFORMED BY THE ROBOT) AND SITE AREPROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHERMORE, WE EXPLICITLY DISCLAIM ANY WARRANTY THAT USE OF THE ROBOT (AND ANY SERVICES PERFORMED BY THE ROBOT) WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED OR THAT SUCH USE WILL NOT EXPOSE YOU TO FUMES FROM THE NAIL POLISH, CAUSE AN ALLERGIC REACTION OR CAUSE ANY PERSONAL INJURY OR DEATH. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE ROBOT (AND ANY SERVICES PERFORMED BY THE ROBOT) IS AT YOUR OWN RISK AND YOU ASSUME ALL LIABILITY THAT ARISES FROM SUCH USE.

14. Indemnity. You will indemnify and hold Clockwork and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Robot and Site, (b) your User Content, or (c) your violation of these Terms.

15. Limitation of Liability. IN NO EVENT WILL CLOCKWORK OR ANY OF ITS AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE THE ROBOT OR SITE OR FOR ANY ERROR OR DEFECT IN THE ROBOT OR SITE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLOCKWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CLOCKWORK’S LIABILITY UNDER THESE TERMS AND WITH RESPECT TO THE ROBOT OR SITE IS LIMITED TO ONE HUNDERD DOLLARS ($100).

16. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 17 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Clockwork are not required to arbitrate will be the state and federal courts located in the County of San Francisco, California, and you and Clockwork each waive any objection to jurisdiction and venue in such courts.

17. Dispute Resolution.

(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Robot and Site (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Clockwork agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Clockwork are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

(b) Exceptions. As limited exceptions to Section 17(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778- 7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

Any arbitration hearings will take place in San Francisco, California. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

(e) Injunctive and Declaratory Relief. Except as provided in Section 17(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

(f) Class Action WaiverYOU AND CLOCKWORK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

(g) Severability. With the exception of any of the provisions in Section 17(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

18. General Terms.

(a) Reservation of Rights. Clockwork and its licensors exclusively own all right, title and interest in and to the Robot and Site, including all associated intellectual property rights. You acknowledge that the Robot and Site are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Robot and Site.

(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Clockwork and you regarding the Robot and Site, and these Terms supersede and replace all prior oral or written understandings or agreements between Clockwork and you regarding the Robot and Site. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Clockwork’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Clockwork may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(c) Notices. Any notices or other communications provided by Clockwork under these Terms will be given via email. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

(d) Waiver of Rights. Clockwork’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Clockwork. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

19. Contact Information. If you have any questions about these Terms or the Robot, please contact Clockwork at support@likeclockwork.com.