Last Updated: March 9, 2016
Thank you for using Clerky’s API. The Clerky API lets certain authorized third parties like you to use Clerky for managing documents and document-related activity on behalf of your underlying users and lets you manage certain aspects of your users’ Managed accounts through functions available through the Clerky API. You must receive authorization from your users to use Clerky Services (as defined below) or permit you to manage the Managed account on their behalf.
This Clerky API Agreement is a legal agreement between the legal entity (including sole proprietors) that you identified on the registration page (the “Platform” or “you”) and Clerky (which has the meaning given in the Clerky Terms of Service (“Clerky ToS”)). The products and services that you provide through the Platform, regardless of whether or not fees are charged, are referred to in this Clerky API Agreement as “Platform Services”. This Clerky API Agreement also governs how the Platform may manage users’ Clerky account(s) (each a “Managed Account”). Management of Managed Accounts includes use and administration of data about Managed Accounts and their transactions (“Data”) and initiating Activity. As used in this Clerky API Agreement, any action submitted using the Clerky API on behalf of a Managed Account is referred to as “Activity”.
You represent to Clerky that all of the information you provided to us is accurate and complete and that you are authorized to agree to this Clerky API Agreement on behalf of the Platform and each Managed Account. You agree to the terms and conditions of this Clerky API Agreement, and to the Clerky ToS. Please read them carefully, as both your use of the Clerky Services (as defined below) and your treatment of Managed Accounts are subject to your acceptance of these terms and conditions.
By using the Clerky API, including the Clerky Services, you expressly agree to abide by the terms and conditions of this Clerky API Agreement, the Clerky ToS, and to any updates or modifications to either of those documents that may occasionally be made by Clerky. The Clerky ToS is an agreement between you and Clerky, and is incorporated into this Clerky API Agreement by reference as it relates to your use of the Clerky Services in connection with your use of the Clerky API. This Clerky API Agreement contains additional terms and conditions relating to your use of the features of the Clerky API made available to the Platform. To the extent that there is a conflict between the Clerky ToS and this Clerky API Agreement related to your use of the Clerky API, this Clerky API Agreement will prevail. As used in this Clerky API Agreement, “Clerky Services” has the meaning given to “Services” in the Clerky ToS and includes the Clerky API. Any capitalized terms that are used but not defined in this Clerky API Agreement are defined in the Clerky ToS.
The Clerky API allows you to make certain of the Clerky Services available through the Platform and help manage the document management experience for your users. It is your sole responsibility, and Clerky disclaims all liability or responsibility, to explain to Managed Accounts the nature of the Platform Services and the Activity that you will manage as part of the Platform’s use of the Clerky Services.
While Clerky has a direct contractual relationship with each Managed Account, for the avoidance of doubt, Clerky shall not have any correspondence with or support obligations to, the Managed Accounts with respect to Activity or the Platform Services. Managed Account owners may choose to use the Clerky Services outside of the relationship with the Platform. If the Managed Account ends its relationship with the Platform, it may still maintain a relationship with Clerky and Clerky may keep Data associated with each Managed Account.
a. Agreements with Managed Accounts: You must have a written agreement with the business entity or individual that owns each Managed Account that explains the Platform Services, how the Platform accesses and uses Data, and the Activities that are performed by the Platform (collectively, the “Platform Agreement”). Clerky is not responsible for any Platform Services you provide - you are solely responsible for providing Platform Services. You may only engage in Activity on the Managed Account to the extent that you are doing so as an agent on behalf of the Managed Account for the limited purpose of managing documents and document related activities using the Clerky Services, which must be clearly stated in your Platform Agreement.
b. Management of Managed Accounts: You are responsible for any Activity initiated by you, on your behalf, or using your credentials on any Managed Account with respect to the Clerky API. Likewise, where either Clerky or the Managed Account incurs any fees based on unauthorized Activity initiated by you, or your employees, or your agents, you will be immediately financially liable for such fees and will pay the amounts on demand.
c. Compliance: You will comply with all applicable laws and regulations, agreements with third parties that are binding on you, and this Clerky API Agreement when using the Clerky API or the Clerky Services.
d. Limitations: You may only use the Clerky API and any information obtained from Managed Accounts for the purposes for which you have expressly authorized by the Managed Account. You will take all reasonable steps to ensure that the Activity does not result in the use of the Clerky Services in violation of the Clerky ToS.
You and Clerky are independent entities, and this Clerky API Agreement does not create any partnership, agency, or employment relationship between you and Clerky, or the employees or agents of either party. You may not and may not attempt to represent, warrant, or obligate Clerky to any commitment to a Managed Account or third party. You may not use any Clerky logo, or trade or service mark in a manner inconsistent with any Clerky marks usage guidelines.
You may not use the Clerky API: (a) to access any Data or initiate any Activity, or attempt to do either, for which a Managed Account has not given you express authorization or such authorization was withdrawn; (b) for any fraudulent, unlawful, deceptive, or abusive purposes or in any manner intended to harm a Managed Account, Clerky, or any third party; or (c) to circumvent Clerky’s intended limitations for any feature of the Clerky API or in a manner inconsistent with the Clerky API.
Clerky may provide various mechanisms for you to create and manage Managed Accounts on behalf of your users, which are described in the Clerky API documentation. You are solely responsible for the selection of the mechanism by which Managed Accounts integrate into the Platform, which may include assisting your customers in creating a Managed Account or integrating an existing Clerky account into the Platform. Selection of the manner of integration impacts your liability for Activity on the Managed Accounts. Please read the following sections carefully prior to selecting the option that is appropriate for your business when onboarding Managed Accounts:
a. Standard Onboarding: Your customers may already have a Clerky account but want to utilize Platform Services, or they may want to create a standalone Clerky account to use with the Platform. In these cases, once created, Managed Accounts will have the ability to add or remove access to Platform upon notice to Clerky. Each Managed Account must agree to the Clerky ToS prior to using their Managed Account on the Platform.
Where Managed Accounts are created or connected to the Platform through standard onboarding, the Platform will have access to some of the Data and have the ability to initiate Activity. Where your customer does not have an existing account with Clerky, Clerky may require you to collect and provide additional Data to validate a Managed Account. The Managed Account is responsible for Data provided by the Managed Account to Clerky as part of the standard onboarding process.
Once a Managed Account is created, you understand and agree that you are solely responsible for use of any Data accessed and any Activity performed, and for any inaccurate or incomplete information provided to Clerky, by you, your employees, or your agents. Managed Account owners may terminate your access to the Managed Account at any time upon notice to Clerky.
For a Managed Account created using standard onboarding, except where expressly stated herein, the Managed Accounts are responsible and liable to Clerky for all Activity on the Managed Account (including all Clerky fees, government fees, and registered agent and other third party fees associated with such Activity, or use of the Clerky Services in a manner prohibited under this Clerky API Agreement or the Clerky ToS).
Where Managed Accounts are created by you on behalf of your customers, you will have responsibility for providing Data regarding the Managed Account to Clerky. Clerky may require certain data fields through the Clerky API to create the Managed Account. You will use commercially reasonable efforts to verify that any information collected about Managed Accounts provided to Clerky as part of the onboarding process is accurate and complete.
You are solely responsible for ensuring that each Managed Account expressly agrees to comply with the Clerky ToS. You will ensure that Managed Account owners agree to the Clerky ToS in a manner that clearly evidences their consent and makes clear that Clerky is providing the Clerky Services to them subject to the Clerky ToS. You will ensure that each Managed Account has an opportunity to review the Clerky ToS prior to acceptance, that the Managed Account owner’s acceptance is consistent with applicable law and results in the Clerky ToS being enforceable by Clerky, and will ensure that such acceptance can be confirmed, recorded, and audited. For each Managed Account created through managed onboarding, upon reasonable request, you will also provide to Clerky: (i) the IP address of the Managed Account owner, (ii) the exact date and time of acceptance by the Managed Account owner, and (iii) user agent information captured from the browser of the Managed Account owner. Clerky may, upon reasonable request, (iv) require that you provide additional information as part of the managed onboarding flow or may audit records retained regarding such acceptance or (v) require you to alter the acceptance process for the Clerky ToS if we believe it is not consistent with applicable law, industry standard practices, or Clerky’s standards.
For a Managed Account created using managed onboarding, except as provided herein, you understand and agree that you are responsible and liable to Clerky for all Activity on the Managed Account (including all documents, transactions, filings, Clerky fees, government fees, and registered agent and other third party fees associated with such Activity, or use of the Clerky Services in a manner prohibited under this Clerky API Agreement or the Clerky ToS). The Platform remains directly liable to Clerky for any of the foregoing and Clerky may charge the credit card identified by the Platform. In addition, you agree you are liable for any inaccurate or incomplete information provided to Clerky as part of the provisioning of the Managed Account.
Clerky reserves the right to suspend or terminate provision of the Clerky Services to any Managed Account at any time if (a) Clerky determines that the Managed Account’s activities violate the Clerky ToS or applicable law.
To the extent that you become aware of a Managed Account being engaged in any illegal, deceptive, or fraudulent activity, you agree to promptly notify Clerky. Likewise, Clerky will use commercially reasonable efforts to promptly terminate or suspend any such accounts once notified by you.
Except as expressly agreed upon in writing between you and Clerky, the pricing for your use of the Clerky Services and the Clerky API on the Platform will be provided as described on Clerky’s web site. These fees for the Clerky Services may include Clerky fees, government fees, and registered agent and other third party fees associated with the Activity, and other amounts. You agree that Clerky will have the right to charge such fees to the credit card identified by the Platform or any Managed Accounts.
You are solely responsible for communicating any fees charged to Managed Accounts for their use of Platform Services (“Platform Fees”) and agree to clearly communicate any Platform Fees in advance of charging the Managed Accounts. You must accurately reflect any fees charged for the Clerky Services to Managed Accounts.
In addition to indemnification obligations under the Clerky ToS, you agree to defend, indemnify, and hold harmless Clerky and its employees and agents (each a “Disclaiming Entity”) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) your breach of any provision of this Clerky API Agreement; (b) any disputes between you and Managed Accounts, including those arising from use of Data or Activity by you, your employees, or your agents, whether for the Platform or a Managed Account; or (c) your use of the Clerky API in a manner that is illegal or inconsistent with the Clerky API.
Where a Managed Account was created as part of a managed onboarding flow, you also agree to defend, indemnify, and hold harmless all Disclaiming Entities from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (d) Activity on the Managed Account (including all documents, transactions, filings, Clerky fees, government fees, and registered agent and other third party fees associated with such Activity, or use of the Clerky Services in a manner prohibited under this Clerky API Agreement or the Clerky ToS); (e) any inaccurate or incomplete information provided to Clerky as part of the provisioned onboarding of Managed Accounts; and (f) your failure to acquire appropriate consent to the Clerky ToS from any Managed Account.
Clerky agrees to defend, indemnify, and hold harmless the Platform from and against any claim, suit, demand, action, or proceeding to the extent that such arises from out of or relates to the Clerky API infringing the intellectual property rights of third parties to this Clerky API Agreement.
In addition to the representations and warranties of the Clerky ToS, you represent and warrant to Clerky that you will (a) obtain authorization for all Activity initiated on behalf of a Managed Account, and for any Data obtained through or used with the Clerky API, by you, your employees, or your agents; (b) dutifully comply with the onboarding obligations described herein; and (c) not use the Clerky API or knowingly permit the use of the Clerky Services by Managed Accounts in a manner that is illegal or deceptive.
Clerky represents and warrants that it will provide the Clerky API (a) in a manner consistent with the documentation for the Clerky API, and with the terms and conditions of this Clerky API Agreement and (b) will not use Data provided by you in manner that is illegal or deceptive.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, CLERKY PROVIDES THE CLERKY API TO YOU ON AN “AS IS” “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY. CLERKY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY AMOUNT, WHETHER AS INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE CLERKY API, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE), OR ANY OTHER FINANCIAL LOSS, WHETHER OR NOT YOU ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES.
Clerky is not responsible for and disclaims all liability for your, your employees’, and your agents’ (a) acts or omissions in providing Platform Services to your customers (including Managed Accounts), which includes but is not limited to delivery of goods or services to your customers or third parties, or properly describing Platform Services; (b) compliance with applicable laws and obligations related to your offering or providing Platform Services; and (c) providing customer service, notifications, or receipts, or consumer complaints, or taking other actions related the Platform Service.
IN NO EVENT WILL A DISCLAIMING ENTITY BE LIABLE FOR ANY LOST PROFITS, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS CLERKY API AGREEMENT OR THE CLERKY API, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE CLERKY API OR THE SERVICES. UNDER NO CIRCUMSTANCES WILL ANY DISCLAIMING ENTITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE CLERKY API, THE SERVICES, YOUR MANAGED ACCOUNT OR THE INFORMATION CONTAINED THEREIN, BASED ON YOUR FAILURE TO USE OR IMPLEMENT SECURITY CONTROLS THAT ARE APPROPRIATE FOR YOUR BUSINESS.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USE OF THE CLERKY API OR THE SERVICES; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF THIRD-PARTY SERVERS USED IN CONNECTION WITH THE CLERKY API OR THE SERVICES AND/OR ANY PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF THE CLERKY API; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE CLERKY API; (E) ERRORS, INACCURACIES, OR OMISSIONS OF INFORMATION, OR ANY LOSSES INCURRED AS A RESULT OF, RESULTING FROM THE USE OF THE CLERKY API; (F) INFORMATION THAT IS TRANSMITTED USING THE CLERKY API THAT IS DEFAMATORY, OFFENSIVE, OR ILLEGAL; AND/OR (G) ANYCONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 9, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU WILL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO CLERKY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF THE DISCLAIMING ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
a. Term, Termination, and the Effects of Termination: The term of this Clerky API Agreement will begin when you register your platform to use the Clerky API and will end when terminated by you or by Clerky as described in this Clerky API Agreement. Either party may terminate this Clerky API Agreement at any time by providing notice to the other party and, in the case of the Platform, immediately ceasing your use of the Clerky API. However, if you commence using the Clerky API again after such notice, you will be considered to have consented to this Clerky API Agreement again.
Sections 7 through 10 and all provisions giving rise to continuing obligations (including Section 3.e) will survive termination of this Clerky API Agreement. As stated above, the Clerky ToS governs your use of the Clerky Services, so the termination of this Clerky API Agreement will not immediately trigger termination of the Clerky ToS. All obligations in the Clerky ToS will only be terminated when done so under the terms and conditions of the Clerky ToS.
b. Governing Law, Disputes, and Interpretation: This Clerky API Agreement is governed by the laws of the State of California (without regard to its choice of law provisions). The exclusive venue for any actions or claims arising under or related to this Clerky API Agreement will be in the appropriate state or federal court located in Santa Clara County, California. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY PROCEEDING INVOLVING ANY CLAIM OR DISPUTE RELATING TO OR ARISING UNDER THIS CLERKY API AGREEMENT.
Headings are included for convenience only, and should not be considered in interpreting this Clerky API Agreement. This Clerky API Agreement does not limit any rights of enforcement that we may have under trade secret, copyright, patent, or other laws. Our delay or failure to assert any right or provision under this Clerky API Agreement does not constitute a waiver of such right or provision. No waiver of any term of this Clerky API Agreement will be deemed a further or continuing waiver of such term or any other term.
c. Right to Amend: Clerky may amend this Clerky API Agreement upon notice to you, which may be provided through email or Clerky’s web site. You agree that any changes to this Clerky API Agreement will be binding on you within 7 days of such notice. If you elect to not accept the changes to this Clerky API Agreement, you must (a) provide notice to Clerky and (b) immediately cease using the Clerky API. Where no such notice is provided or where you continue to use the Clerky API, you agree that you are consenting to any such changes to the Clerky API Agreement.
d. Assignment: You may not assign or attempt to assign this Clerky API Agreement without the express consent of Clerky in advance. While we will generally consent to such an assignment where we consider it reasonable, we are not required to and will deny requests where such an assignment would violate this Clerky API Agreement or would pose a material risk to Clerky or our partners.
e. Entire Agreement: This Clerky API Agreement constitutes the entire agreement between you and Clerky with respect to the Clerky API. Except where expressly stated in a separate agreement duly executed by Clerky, if there is any conflict between this Clerky API Agreement and any other Clerky agreement related to the Clerky API, this Clerky API Agreement will prevail. Keep in mind, however, that with regard to your use of the Clerky Services for your own purposes (i.e. to manage your own documents), the Clerky ToS will prevail. These terms and conditions describe the entire liability of you and Clerky, and set forth your exclusive remedies with respect to the Clerky API. If any provision of this Clerky API Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it should be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
Thank you and welcome to the Clerky API!