Terms

Last updated on 8 October 2019

These terms and conditions (these “Terms”) are a legal contract between you and Clerk Retail, Inc. DBA Clerk (“Clerk”, “we” or “us”). The Terms explain how you are permitted to use the website located at the url: http://www.clerkretail.com as well as all associated websites provided by Clerk, its subsidiaries and affiliated companies and linked to www.clerkretail.com (collectively, the “Site”). By using this Site, you are agreeing to all the Terms; if you do not agree with any of these Terms, do not access or otherwise use this Site, any of the services available through this Site (“Services”) or any information contained on this Site.

Changes

Clerk may make changes to the Site or Services at any time. Clerk may change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on this Site. By continuing to use this Site or any Services after Clerk has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and Services. These Terms were last updated on March 31, 2016.

Eligibility

By using the Site and/or any Services, you represent that you are 18 years of age or older. If you are using this Site or Services on behalf of a company, you represent that you are authorized to legally bind that company to these Terms.

If Clerk believes that you do not meet any of these requirements Clerk may immediately terminate your use of the Site and/or Services.

Description of Services

Clerk’s Video Advertising Platform allows you to plan, buy, measure and optimize your digital video advertising on Clerk’s digital devices. Our Video Advertising Platform enables you to launch sophisticated, scalable digital video advertising campaigns through our widely distributed device network.

Clerk may provide you with additional custom services (“Premium Services”) upon your request and separate agreement with Clerk. Premium Services will be subject to the terms and conditions of that separate agreement and to these Terms.

Your use of any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to the Terms and may require you to agree to additional terms and conditions.

In order to use the Site and Services, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the Services may include advertisements and that these advertisements are necessary for Clerk to provide the Services. You also understand and agree that the Site and Services may include certain communications from Clerk, such as service announcements, administrative messages and the Clerk newsletter, and that these communications are considered part of the Clerk membership. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree not to access the Site or Services by any means other than through the interfaces that are provided by Clerk for such access.

Registration

In order to use the Services, you must have a valid Clerk user ID. You are responsible for maintaining the confidentiality of your Clerk user ID and password, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Clerk of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You understand and agree that Clerk cannot and will not be liable or any loss or damage arising from your failure to comply with these requirements.

All the information that you provide when registering for an account and otherwise through the Site or Services must be accurate, complete and up to date.

Clerk Privacy Policy

Your use of the Site and Services and all related data is subject to the Clerk Privacy Policy, the terms of which are incorporated into these Terms by reference.

Content and Conduct Rules and Obligations

You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”) are the sole responsibility of the person from which the content originated. This means that you, and not Clerk, are entirely responsible for all Content that you upload, post, transmit, incorporate into advertisements, or otherwise make available via the Services. Clerk does not control the Content posted via the Services, and, as such, does not guarantee the accuracy, integrity or quality of such Content.

You understand and agree that under no circumstances will Clerk be liable in any way for Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use or distribution of any Content posted, transmitted or otherwise made available via the Services. You acknowledge that Clerk may pre-screen Content and shall have the right (but not the obligation) in its sole discretion to refuse any Content that is made available via the Services. You agree that you must evaluate, and bear all risks associated with, the use or distribution of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

You understand and agree that by using the Services you authorize Clerk to use information you provide to authenticate your account (including, without limitation, your email address and log-in information) for the purposes of managing your video content (including, without limitation, uploading, distributing, editing and removing video content) on your behalf and verifying your ownership of the account.

Clerk hereby disclaims ownership of the Content you transmit to Clerk via the Site or Services. By submitting Content to Clerk in order to utilize the Services, you agree that such Content is provided by you on a non-proprietary and non-confidential basis and you grant Clerk a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of transmitting the Content to the Clerk Device Network and tracking said Content as described above. This license exists only for as long as you continue to maintain an account with Clerk and shall be terminated at the time your account is closed. We agree to use any personally identifiable information contained in any of your Content in accordance with the Clerk Privacy Policy.

When using the Site and/or the Services, you agree to abide by common standards of etiquette and act in accordance with the law. For example, you agree not to not to:

  • Upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (including, but not limited to, any address, e-mail, phone number, or any other contact information without the consent of the owner of such information), hateful, or racially, ethnically, or otherwise objectionable;
  • Harm minors in any way;
  • Upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • Upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or any other proprietary rights of any party;
  • Upload, post or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (a) sending mass email to recipients who haven’t requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or © promoting your Content by posting multiple submissions in public forums that are identical. Also defined as “spam” are any videos involving affiliate marketing, network marketing, cash gifting, multi-level marketing, phishing, or any videos that a reasonable person would consider to be a scam or misleading. Further, “spam” can include any content that Clerk deems not entertaining or informative;
  • Upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
  • Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the America Stock Exchange, or the NASDAQ, and any regulations having the force of law;
  • Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices; or
  • Offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorization, or © Clerk determines, in its sole discretion, is inappropriate for sale through the Service provided by Clerk.

This list of prohibitions provides examples and is not complete or exclusive. Clerk reserves the right to terminate access to your account, your ability to use the Site and/or Services with or without cause and with or without notice, for any reason or no reason, or for any action that Clerk determines is inappropriate or disruptive to the Site or Services, or to any other user of the Site and/or Services. Clerk may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Clerk’s discretion, Clerk will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site, the Services, or on the Internet.

Links to Third Party Sites

The Site may be linked to other web sites that are not Clerk sites (collectively, “Third Party Sites”). You acknowledge and agree that the Third Party Sites may have different privacy policies, terms and conditions and/or user guides and business practices than Clerk, and you further acknowledge and agree that your use of such Third Party Sites is governed by the applicable Third Party Web Site privacy policy, terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third Party Sites. Clerk is providing links to the Third Party Sites to you as a convenience, and Clerk does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. Unless expressly stated on the Site, links to Third Party Sites should in no way be considered as or interpreted to be Clerk’s endorsement of such Third Party Site or any product or service offered through it.

YOU AGREE THAT CLERK WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.

Digital Millennium Copyright Act

Notices of purported copyright infringement should be directed to the appropriate publisher(s) who is hosting the purported infringing work in accordance with the Terms of Use of the applicable publisher(s), or to the advertiser whose use is of concern.

International Use

You agree to comply with all applicable local laws, including but not limited to local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

Indemnity

You agree to indemnify, defend, and hold harmless Clerk and its subsidiaries, affiliates, officers, agents, co-branders, or other partners, investors, and employees, from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Services, your violation of these Terms, or your violation of any rights of another, whether you are a registered user or not.

General Practices Regarding Use and Storage

You acknowledge and agree that Clerk may establish general practices and limits concerning use of the Services and may modify such practices and limits from time to time.

Modifications to Services

Clerk reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any portion thereof) with or without notice at any time. You acknowledge and agree that Clerk shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.

Proprietary Rights

You acknowledge and agree that the Site, Services, any necessary software provided by Clerk for use in connection with the Services (Software), all Clerk Content contained on the Site and Services, and any analytical data derived from the use of the Software and Services (Data) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Clerk retains all right, title and interest in and to the Services, Software, Clerk Content and Data and you shall not acquire any right, title or interest in or to the Services, Software, Clerk Content, Data and any associated intellectual property rights (other than the limited use rights set forth in these Terms).

Except as expressly authorized in writing by Clerk or otherwise permitted herein, you agree not to modify, retrieve, save, rent, copy, lease, loan, sell, resell distribute or create derivative works based on the Services, Data, Clerk Content or Software, in whole or in part.

All goodwill arising out of your use of any Clerk trademarks shall inure solely to the benefit of Clerk.

If you send or transmit any communications, comments, questions, suggestions, or related materials to us, whether by letter, email, telephone, or otherwise (collectively, Feedback), suggesting or recommending changes to the Site, Services or our Content, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Clerk is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Clerk is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE SITE AND SERVICES ARE AT YOUR SOLE RISK. THE SITE, SERVICES AND ALL CONTENT THEREON OR THEREIN ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. CLERK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

CLERK WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE SITE AND SERVICES, HOWEVER, CLERK IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION OR CONTENT, INACCURACY OF DATA USED FOR ADVERTISING DECISIONS, RESTRICTION OR LOSS OF ACCESS OR CHANGES TO YOUR CLERK ACCOUNT, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICES, OR OTHER INTERACTION WITH THE SITE AND/OR SERVICES. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICES. CLERK DOES NOT WARRANT THAT (i) THE SITE, SERVICES OR CLERK CONTENT WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SITE, SERVICES OR CLERK CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE, SERVICES OR CLERK CONTENT WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE AND/OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLERK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE LOSSES (EVEN IF CLERK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE SITE, SERVICES AND/OR THE CLERK CONTENT; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGE RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICES; (v) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE AND/OR SERVICES OR OTHER PERSONS OR ENTITIES WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE AND/OR ANY SERVICE; OR (vi) ANY OTHER MATTER RELATING TO THE SITE, SERVICES AND/OR CLERK CONTENT.

Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF DISCLAIMER OR WARRANTIES AND LIMITATION OF LIABILITY SECTIONS MAY NOT APPLY TO YOU.

General

You acknowledge and agree that notices to you from Clerk may be made via email, regular mail or through publication on the Site or notification in your account interface for the Services. Clerk may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally through the account interface for the Services. The Terms and the relationship between you and Clerk shall be governed by the laws of the State of Colorado without regard to its conflict of law provisions. The failure of Clerk to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms, and any addenda, constitute the entire agreement between you and Clerk and govern your use of the Site and Services, superseding any prior agreements between you and Clerk (including, but not limited to, any prior versions of the Terms). You may also be subject to additional terms and conditions from the various publishers utilized in the performance of the Services. If any provision of the Terms or any other document incorporated in the Terms by reference is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.

Pricing, Billing and Account Creation

Use of the Video Advertising Platform Service requires a Clerk platform account. In order to establish a Clerk platform account, you must contact your Clerk sales representative or request more information in order to initiate the process of establishing a Clerk platform account. Platform accounts are subject to, among other things, a satisfactory credit review, and may be required to be funded with a pre-paid balance and maintained with a valid credit card. You will be billed for advertising spending based on the estimated number of impressions for a particular campaign. In the event that Clerk exceeds this estimated number of impressions, no additional charges will be billed to the account. In the case of campaign under delivery, you will be credited the difference of the full amount.

Contact Us

If you have any questions about these Terms or otherwise need to contact Clerk for any reason, you can reach us at legal@clerkretail.com.