Timeco Services Agreement
Last Modified: May 2023
THIS TIMECO SERVICES AGREEMENT, dated as of the Effective Date, is entered into by and between TIMECO and Customer pursuant to that certain letter agreement by and between TIMECO and Customer (the “Letter Agreement”). Capitalized terms used but not defined herein will have the meanings ascribed to such terms in such Letter Agreement.
WHEREAS, TIMECO owns and provides a web-based service and software and applications which help businesses in performing their payroll computation functions (collectively, the “Services”); and
WHEREAS, Customer desires to engage TIMECO to provide the Services, and TIMECO desires to accept such engagement, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TIMECO and Customer (each a “Party,” and collectively, the “Parties”) agree as follows:
ARTICLE 1: INCORPORATION OF RECITALS
The Parties acknowledge and agree the above recitals are true and correct and are hereby incorporated into this Agreement.
ARTICLE 2: SERVICES AND APPLICATIONS
2.1 Services; Compliance.
Subject to the terms and conditions set forth herein, during the term of this Agreement, TIMECO shall provide the Services to Customer. In connection with the Services, during the term of this Agreement, TIMECO grants to Customer a limited, revokable, non-transferable, non-exclusive right and subscription license to access and use TIMECO’S web and mobile applications (collectively the “Applications”) only for Customer’s internal business purposes of processing, storing, and maintaining Customer’s data. Customer agrees to access and use the Services and the Applications (and the Products (as defined below) if applicable) only in accordance with the terms, requirements, and restrictions set forth herein and in compliance with any and all written instructions, policies, or guidelines established by TIMECO (including, without limitation, the TIMECO Website Terms of Use located at https://timeco.com/termsofuse/ the TIMECO SaaS End User Access and Use Agreement made available through the TIMECO web application; the TIMECO Application End User License Agreements made available through the TIMECO mobile applications; and the Privacy Policy and the Fingerscan and Facial Scan Policy and Release located at https://timeco.com/privacy-policy/ (together with this Agreement, collectively, the “Requirements and Restrictions”). Customer is solely responsible for (a) ensuring that all Users (as defined below) fully comply with all of the Requirements and Restrictions; (b) ensuring that the use of the Services, Applications, and Products by each User complies with all applicable laws, rules, and regulations in the relevant jurisdiction(s) (including, but not limited to, data protection laws, rules, and regulations and privacy laws, rules, and regulations); (c) maintaining the confidentiality of the account and password for Customer and each User and restricting access to its computer systems; (d) ensuring that each User is authorized to use such account; and (e) ensuring that each individual who provides instructions and communications to TIMECO on behalf of Customer is authorized to provide such instructions and communications. For purposes of this Agreement, the term “Users” means and includes all of Customer’s employees, agents, contractors, personnel, and representatives who access or use any of the Services, Applications, or Products.
2.2 Hardware Sales and Returns.
If Customer purchases, leases, or uses any timekeeping hardware or related devices or products provided by or through TIMECO in connection with the Services (collectively, the “Products”), additional terms and conditions will apply with respect to such purchase, lease, or use of the Products.
2.3 Customer Information.
Customer hereby represents and warrants that all of the information provided by Customer or its authorized individual(s) is true and correct.
2.4 Sublicensing and Transfer Prohibited.
Customer acknowledges and agrees that Customer may not sublicense, lease, assign, or transfer any of the rights granted to Customer under this Agreement to any entity or individual without the advance written authorization by TIMECO.
2.5 Third-Party Materials.
The Services, Applications, and Products may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, "Third-Party Materials"). Customer acknowledges and agrees that TIMECO is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. TIMECO does not assume and will not have any liability or responsibility to Customer or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to Customer, and Customer and the Users access and use them entirely at Customer’s own risk and subject to such third parties' terms and conditions.
2.6 Reservation of Rights. TIMECO hereby reserves all rights not expressly granted to Customer under this Agreement.
2.7 Technical Support Services. Customary technical support services will be provided by TIMECO to Customer during the term of this Agreement for no additional charge (other than the Fees as described in Article 6); provided, however that TIMECO reserves the right to charge Customer for any additional services outside the scope of such customary Technical Support Services (based on TIMECO’s standard hourly rates then in effect).
2.8 Confidentiality Obligations.
(a) Except to the extent required by applicable law or court order, Customer covenants and agrees that (i) Customer will hold in confidence and safeguard all Confidential Information (as defined herein); (ii) Customer will not in any way, directly or indirectly, disclose or authorize or allow any individual or entity to disclose any Confidential Information; and (iii) Customer will use commercially reasonable controls to prevent the unauthorized use or disclosure of the Confidential Information, but in any event no less than the degree of care and control that Customer uses to protect its own confidential and proprietary information. Without limiting the generality of the foregoing, Customer will regard and treat each item of information and data constituting Confidential Information as strictly confidential, and Customer will not, for any reason or in any manner, directly or indirectly, sell, use, distribute, license, transfer, assign, disclose, disseminate, or otherwise communicate any such item of information or data to any individual or entity for any purpose. Customer shall be fully responsible for ensuring that all Users and all of Customer’s owners, shareholders, members, directors, managers, officers, employees, personnel, contractors, representatives, advisors, agents, and affiliates fully comply with all of the same restrictions and obligations applicable to Customer under this Agreement. Customer shall immediately notify TIMECO of any unauthorized disclosure or use, whether intended or unintended, of any Confidential Information by Customer or any other individual or entity of which Customer becomes aware.
(b) For the purposes of this Agreement, the term “Confidential Information” means all of the business information, financial information, and proprietary information disclosed to or received by Customer (or any User or any owner, shareholder, member, director, manager, officer, employee, personnel, contractor, representative, advisor, agent, or affiliate of Customer) from TIMECO (or from any owner, shareholder, member, director, manager, officer, employee, personnel, representative, advisor, agent, or affiliate of TIMECO), whether disclosed prior to or after the Effective Date, and whether in written, verbal, or electronic form. Confidential Information also includes, without limitation, any and all information and data that is designated, whether verbally or in writing, as “confidential” or “proprietary” (or with a similar designation) and any and all information and data that Customer knows, or has reason to know, constitutes Confidential Information. Without limiting the generality of the foregoing, all of the following will constitute Confidential Information: (i) all details and information relating to the Services, the Applications, and the Products; (ii) all fees, costs, and pricing information; (iii) all records, reports, and data; (iv) all information relating to TIMECO’s Intellectual Property (as defined herein); and (v) all other information gained or obtained by Customer as a result of its access to or use of the Services, the Applications, or the Products. The term “Confidential Information” also includes all analyses, compilations, reports, forecasts, summaries, studies, samples, materials, files, databases, notes, and other documentation that contain or otherwise reflect or are generated from any Confidential Information.
(c) Customer shall not use any Confidential Information for any purpose other than as necessary in connection with Customer’s access to or use of the Services, the Applications, or the Products. Customer agrees not to copy, duplicate, disassemble, alter, or modify any Confidential Information in any manner.
(d) If Customer is required to disclose any Confidential Information to comply with applicable law or a court order, Customer shall (i) take all reasonable steps to preserve the privileged nature and confidentiality of all Confidential Information, including requesting that Confidential Information not be disclosed to third parties or to the public; (ii) give TIMECO prompt prior written notice of such disclosure requirement so that TIMECO may seek an appropriate protective order or other remedy; and (iii) cooperate with TIMECO to obtain such protective order or other remedy. In the event that such protective order or other remedy is not obtained, Customer will furnish only that portion of Confidential Information which, on the advice of Customer’s legal counsel, is legally required to be disclosed and use commercially reasonable efforts to obtain assurances that confidential treatment will be given to the disclosed information.
2.9 Non-Solicitation of Employees.
During the term of this Agreement and continuing at all times until the date 2 years after the date of the termination of this Agreement, Customer shall not directly or indirectly induce or encourage (or attempt to induce or encourage) any employee or contractor of TIMECO to leave the employment of TIMECO or interfere in any way with the relationship between any such employee or contractor and TIMECO.
2.10 Use of Name and Logo; Publicity.
During the term of this Agreement, Customer may use the “TIMECO” name and logo only as specifically authorized in writing by TIMECO. TIMECO may revoke such authorization, in its sole and absolute discretion, at any time. Without limiting the generality of the foregoing, Customer acknowledges and agrees that no press release or public announcement, regardless of format or how published or posted, that identifies TIMECO in any manner may be made without TIMECO’s prior written authorization.
2.11 Customer Data.
Customer hereby grants to TIMECO a worldwide, royalty-free license to use, host, store, copy, transmit, display, modify, and create derivative works of all data, content, materials, and information provided by or on behalf of Customer or any User (collectively, “Customer Data”) for the purpose of providing the Services. Customer shall have the sole responsibility for the accuracy, completeness, quality, content, and legality of all Customer Data and all other data, content, and information provided by any User. Customer acknowledges and agrees that (a) TIMECO is a service provider and that any access, storage, use, or processing of Customer Data by TIMECO is solely on behalf of and at the direction of Customer, and (b) TIMECO has no control over the content of the Customer Data provided in connection with the Services.
2.12 Biometric Data.
If Customer collects, stores, processes, or uses any biometric data of individuals including any data or information based on an individual’s retina scan, fingerprint, voiceprint, or face scan (collectively, “Biometric Data”), Customer must (a) first provide advance written notice to each individual from which Biometric Data will be collected; (b) notify such individual in writing of the specific purposes and the length of time for which the Biometric Data is collected, stored, processed, and used; (c) obtain an executed written release from such individual (or his or her legal authorized representative) authorizing Customer, TIMECO, and any other relevant parties to collect, store, process, and use the Biometric Data and authorizing Customer to disclose the Biometric Data to TIMECO and any other relevant parties. Customer shall not collect, store, process, or use any Biometric Data for any purpose other than employment-related purposes.
2.13 Security Procedures.
Each Party shall implement reasonable security procedures consistent with industry standards in connection with their respective responsibilities and obligations under this Agreement.
2.14 Changes.
TIMECO reserves the right, in its sole discretion, to make any changes to the Services, Applications, and Products that it deems necessary or useful to: (a) maintain or enhance their: (i) quality or delivery; (ii) competitive strength or market; or (iii) cost efficiency or performance; or (b) to comply with applicable law.
2.15 Suspension or Termination.
TIMECO may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any User's, or any other person's access to or use of all or any part of the Services or any Application or Product, without incurring any resulting obligation or liability, if: (a) TIMECO receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires TIMECO to do so or (b) TIMECO believes, in its sole discretion, that: (i) Customer or any User has failed to comply with any term of this Agreement or any other agreement with TIMECO or accessed or used the Services or any Application or Product beyond the scope of the rights granted, for a purpose not authorized, or in any manner that does not comply with any of the Requirements and Restrictions; (ii) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activity; or (iii) this Agreement expires or is terminated. This Section 2.15 does not limit any of TIMECO's other rights or remedies, whether at law, in equity, or under this Agreement.
ARTICLE 3: USE RESTRICTIONS; SERVICE USAGE AND DATA STORAGE
3.1 Use Restrictions.
Customer will not, and will not permit any other person or entity to, access or use the Services or any Application or Product except as expressly permitted by this Agreement, the other Requirements and Restrictions, and, in the case of Third-Party Materials, the applicable third-party terms. For purposes of clarity and without limiting the generality of the foregoing, Customer will not, and will not permit any other person or entity to, except as this Agreement expressly permits:
(a) access or use the Services or any Application or Product beyond the scope of the rights granted herein;
(b) copy, modify, translate, adapt, or otherwise create a derivative work or improvement of the Services, any Application or Product, or any part of any of the foregoing, whether or not patentable;
(c) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, share, or otherwise make available or provide any access to or use of, the Services, any Application or Product, or any features or functionality thereof to any other person or entity for any reason, in all cases whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(d) combine or incorporate the Services or any Application or Product or any part thereof with or in any other program;
(e) reverse engineer, disassemble, decompile, decode, adapt, reconstruct, or otherwise attempt to derive or gain access to the Services or any Application or Product; any source code, algorithm, file format, or programming interface related to any of the foregoing; or any other part of any of the foregoing;
(f) input, upload, transmit, post, or otherwise provide to or through the Services or any Application or Product any data, content, information, or material that is unlawful, deceptive, misleading, obscene, defamatory, or inappropriate in any manner;
(g) attempt to gain unauthorized access to any service, account, system, or network through any means;
(h) remove, delete, falsify, misrepresent, alter, or obscure any documentation, agreement, warranty, disclaimer, or any copyright, trademark, patent, or other intellectual property or proprietary rights notice from the Services or any Application or Product, including any copy thereof;
(i) access or use the Services or any Application or Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property, privacy, or other right of any third party (including by any unauthorized access to, or misappropriation, use, alteration, destruction, or disclosure of, the data of any other TIMECO customer) or that violates any applicable law, statute, rule, or regulation (including, without limitation, any law regarding the export of data or software);
(j) access or use the Services or any Application or Product in, or in association with, the design, construction, maintenance, or operation of any hazardous environment, system, or application; any safety response system or other safety-critical application; or any other use or application in which the use or failure of the Services or any Application or Product could lead to personal injury or severe physical or property damage;
(k) bypass, breach, remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, right management, or security device or feature in or protecting the Services or any Application or Product;
(l) use the Services or any Application or Product for purposes of competitive analysis; the development, provision, or use of a competing software product or service; or any other purpose that is to TIMECO’s detriment or commercial disadvantage;
(m) breach any applicable third-party terms of agreement when using the Services or any Application or Product;
(n) access the Services or any Application or Product for purposes of monitoring its availability, performance, or functionality or for any other benchmarking or competitive purpose;
(o) create Internet “links” to the Services or any Application or Product on any other server or wireless or Internet-based device;
(p) use the Services or any Application or Product in any manner that could disable, overburden, damage, destroy, disrupt, harm, impair, or otherwise impede, interfere with, or harm in any manner, the Services, any Application or Product, TIMECO’s network, or any other party’s use of any of the foregoing (including their ability to engage in real-time activities) or otherwise engage in activities harmful to the operations of TIMECO or any of its goods, services, customers, or users;
(q) use any robot; web scraping or scraping method; data mining; spider; other similar data gathering or extraction method; or other automatic device, process, or means to access the Services or any Application or Product for any purpose, including monitoring or copying any of the material on the Services or any Application or Product;
(r) use any manual process to monitor or copy any of the material on the Services or any Application or Product or for any other purpose not expressly allowed;
(s) use any device, software, or routine that interferes with the proper working of the Services or any Application or Product;
(t) introduce any harmful content such as malware, adware, or spyware; a virus, trojan horse, worm, logic bomb, time bomb, or cancelbot; or other material that is malicious or technologically harmful;
(u) attempt to gain unauthorized access to, or interfere with, damage, or disrupt any part of, the Services or any Application or Product; the server on which the Services or any Application or Product is stored; or any server, computer, or database connected to the Services or any Application or Product; or
(v) attack the Services or any Application or Product via a denial-of-service attack or a distributed denial-of-service attack.
ARTICLE 4: CUSTOMER OBLIGATIONS
4.1 Customer Systems and Cooperation.
Customer will at all times during the term of this Agreement: (a) set up, maintain, and operate in good repair all of Customer’s information technology infrastructure (including, without limitation, computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services) (collectively, the “Customer Systems”); (b) provide TIMECO’s personnel with such access to Customer's premises and Customer Systems as is necessary or convenient for TIMECO to provide the Services; and (c) provide all cooperation and assistance as TIMECO may reasonably request to enable TIMECO to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay.
TIMECO is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.
4.3 Corrective Action and Notice.
If Customer becomes aware of any actual or threatened activity prohibited by this Agreement or any other agreement with TIMECO, Customer will, and will cause its authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access) and (b) notify TIMECO of any such actual or threatened activity.
4.4 Customer Control and Responsibility.
Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) the Customer Systems; (c) the security and use of Customer's and its Users' access credentials; and (d) all access to and use of the Services, Applications, and Products directly or indirectly by or through the Customer Systems or its or its Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
4.5 Access and Security.
Customer will employ all physical, administrative, and technical controls; screening; and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Users’ access credentials and protect against any unauthorized access to or use of the Services or any Application or Product and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data to or through the Services or any Application or Product.
ARTICLE 5: OWNERSHIP AND PROTECTION
5.1 Acknowledgment of Ownership.
Customer acknowledges and agrees that TIMECO is the sole and exclusive owner of, and will retain all right, title, and interest in and to, all of the Services, all of the Applications, and all of TIMECO’s Intellectual Property. All use by Customer of the Services, the Applications, and TIMECO’s Intellectual Property, and all goodwill accruing therefrom, will inure solely to the benefit of TIMECO. Customer will not acquire or receive any ownership, right, or interest in or to any of the Services, any of the Applications, or any of TIMECO’s Intellectual Property.
5.2 Definition of Intellectual Property.
For the purposes of this Agreement, “Intellectual Property” means and includes any and all rights in, arising out of, or associated with any of the following, in any jurisdiction throughout the world: (a) patents, patent disclosures, and inventions (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, divisional, extension or reexamination thereof; (b) trademarks, service marks, and trade dress, logos, slogans, internet domain names and other indicia of origin, and all translations, adaptations, derivations and combinations of the foregoing, together with all goodwill associated therewith; (c) works of authorship (whether or not copyrightable), copyrights, and copyrightable works; (d) registrations, applications for registration, and renewals of any of the foregoing; (e) computer software (including but not limited to (i) computer programs, operating systems, applications, firmware, and other code, including any and all software implementations of algorithms, models, and methodologies, whether in source code or object code, application programming interfaces, data files, databases, protocols, and specifications, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, and (iii) descriptions, schematics, flowcharts and other work product used to design, document, plan, organize or develop any of the foregoing); (f) trade secrets and other information related to the foregoing, including ideas, know-how, processes and techniques, research and development information, drawings, specifications, designs, plans, proposals and technical data and manuals; (g) all other intellectual property and proprietary rights; and (h) all copies and embodiments of any of the foregoing (in whatever form or medium).
5.3 Protection.
Customer agrees to use commercially reasonable efforts to safeguard TIMECO’s Intellectual Property from infringement, misappropriation, theft, misuse, or unauthorized access.
5.4 Registration, Maintenance, and Enforcement.
TIMECO has the right, in its sole and absolute discretion and at its own expense, to (a) file, prosecute, and maintain all applications and registrations for the Services, the Applications, and all other Intellectual Property of TIMECO, and (b) enforce its rights with respect to the Services, the Applications, and all other Intellectual Property of TIMECO, including to bring actions or proceedings with respect to any infringement. Customer will provide, at the request of TIMECO, all necessary assistance with such filing, maintenance, and prosecution. Further, Customer will promptly notify TIMECO in writing of any actual, suspected, or threatened infringement, misappropriation, dilution, or other unauthorized use of the Services, the Applications, or any other Intellectual Property of TIMECO by any third party of which Customer becomes aware.
5.5 Feedback.
Customer acknowledges and agrees that, if Customer or any User suggests or recommends to TIMECO any changes to the Services or any of its other goods or services including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), TIMECO is free to use such Feedback irrespective of any other obligation or limitation governing such Feedback. Customer hereby assigns to TIMECO all right, title, and interest in, and TIMECO and its licensors are free to use, without any attribution or compensation to any party, the Feedback, including any ideas, know-how, concepts, techniques, other Intellectual Property, and all rights contained therein or related to the foregoing for any purpose whatsoever, although TIMECO is not required to use any Feedback.
5.6 Audit and Inspection Rights.
At all times during the term of this Agreement and for a period of 2 years following the termination of this Agreement, TIMECO (and TIMECO’s accountants, auditors, legal counsel, and other representatives) will have the right to audit and review the records of Customer for purposes of assessing the compliance with this Agreement. Customer will cooperate with any such audit or review, and Customer will promptly provide TIMECO with access to any and all information reasonably requested by TIMECO.
5.7 Records and Reporting.
Customer shall (a) regularly communicate and cooperate with TIMECO regarding the Services, Applications, and Products; and (b) maintain records and reports relating to Customer’s access to and use of the Services, Applications, and Products.
5.8 Insurance.
Customer shall at all times during the term of this Agreement maintain insurance coverage of the types and in the amounts as are consistent with industry standards.
ARTICLE 6: COMPENSATION AND PAYMENT TERMS
As consideration for the Services, Customer shall pay to TIMECO the fees described in the Letter Agreement and any and all other amounts described herein (the “Fees”) in accordance with the terms and conditions set forth herein. Customer acknowledges and agrees that TIMECO may, in its sole and absolute discretion, increase the amount of the Fees; provided, however, that any such increase will occur no more frequently than once per calendar year. Unless specified otherwise, TIMECO shall invoice Customer on a monthly basis; provided that Fees for Products will be invoiced when such Products are ordered. Customer shall pay the full amount due for each invoice within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to, and Customer shall pay, a late charge equal to 5.00% of the unpaid amount. In addition, Customer shall be solely responsible for any excise, sales, use, or other similar tax imposed by any governmental authority (except with respect to any tax based on TIMECO’s income), whether or not such amounts are itemized on the applicable invoice.
ARTICLE 7: INDEMNIFICATION
7.1 Indemnification by Customer.
Subject to the limitations set forth herein (including the limitations set forth in Article 8), Customer shall indemnify, defend, and hold harmless TIMECO and all of TIMECO’s owners, shareholders, members, directors, managers, officers, employees, and agents (collectively, the “TIMECO Indemnified Parties”) from and against all losses, liabilities, claims, damages, actions, fines, penalties, expenses, and costs (including court costs and reasonable attorneys' fees) incurred by any of the TIMECO Indemnified Parties arising from: (a) any breach by Customer or any User of any representation, warranty, covenant, or obligation under this Agreement, any of the other Requirements and Restrictions, or any other agreement with TIMECO; (b) any willful misconduct, gross negligence, or fraud by Customer, any User, or any of Customer’s owners, shareholders, members, directors, managers, officers, employees, or agents; (c) any actual or alleged breach or violation of any applicable law, rule, or regulation in any jurisdiction (including, but not limited to, any data protection law, rule, or regulation or privacy law, rule, or regulation) arising from or relating to the use of the Services, Applications, or Products by Customer, any User, or any of Customer’s owners, shareholders, members, directors, managers, officers, employees, or agents; (d) the collection, storage, processing, or use of any Biometric Data or other Customer Data; (e) TIMECO’s compliance with directions or requests provided by or on behalf of Customer or any User; or (f) any claim brought against TIMECO by a User or any other person or entity who receives access to the Services or any Application or Product through Customer or any User.
7.2 Indemnification by Timeco.
Subject to the limitations set forth herein (including the limitations set forth in Article 8), TIMECO shall indemnify, defend, and hold harmless Customer and all of Customer’s owners, shareholders, members, directors, managers, officers, employees, and agents (collectively, the “Customer Indemnified Parties”) from and against all losses, liabilities, claims, damages, actions, fines, penalties, expenses, and costs (including court costs and reasonable attorneys' fees) incurred by any of the Customer Indemnified Parties arising from: (a) any breach by TIMECO of any representation, warranty, covenant, or obligation under this Agreement; or (b) any willful misconduct, gross negligence, or fraud by TIMECO or any of its owners, shareholders, members, directors, managers, officers, employees, or agents.
ARTICLE 8: DISCLAIMER OF WARRANTIES; LIABILITY LIMITATIONS
8.1 Disclaimer of Warranties.
CUSTOMER ACKNOWLEDGES AND AGREES THE SERVICES, APPLICATIONS, AND PRODUCTS ARE PROVIDED “AS IS” AND CUSTOMER’S USE OF THE SERVICES, APPLICATIONS, AND PRODUCTS IS AT CUSTOMER’S OWN RISK. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, TIMECO MAKES NO REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE. THE PARTIES SPECIFICALLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT (AND IN CONNECTION WITH ALL SERVICES, APPLICATIONS, AND PRODUCTS), INCLUDING ANY WARRANTY OF QUALITY OR MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, ANY WARRANTY AGAINST HIDDEN DEFECT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, SALE, OR TRADE PRACTICE. TIMECO DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, APPLICATIONS, OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES TIMECO MAKES NO REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES, APPLICATIONS, OR PRODUCTS, OR ANY USE THEREOF, WILL COMPLY WITH ANY LAW, RULE, OR REGULATION OF ANY JURISDICTION, AND TIMECO HAS NO OBLIGATION OR RESPONSIBILITY TO NOTIFY CUSTOMER OF ANY CHANGES IN ANY LAW, RULE, OR REGULATION THAT MAY AFFECT THE USE OF ANY OF THE SERVICES, APPLICATIONS, OR PRODUCTS.
8.2 Liability Limitations.
(a) CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) TIMECO IS PROVIDING THE SERVICES TO CUSTOMER’S USERS SOLELY AT AND PURSUANT TO CUSTOMER’S REQUEST AND (II) TIMECO, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS HAVE NO OBLIGATIONS OR LIABILITY TO ANY USER OR ANY OTHER PERSON OR ENTITY WHO RECEIVES ACCESS TO THE SERVICES OR ANY APPLICATION OR PRODUCT THROUGH CUSTOMER OR ANY USER, AND TIMECO’S ONLY OBLIGATIONS AND LIABILITY ARE TO CUSTOMER UNDER THIS AGREEMENT AND ANY OTHER AGREEMENTS BETWEEN CUSTOMER AND TIMECO, SUBJECT TO THE TERMS AND CONDITIONS THEREOF.
(b) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF TIMECO ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (OR IN CONNECTION WITH ANY OF THE SERVICES, APPLICATIONS, OR PRODUCTS) SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO TIMECO PURSUANT TO THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE LIABILITY.
(c) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES RELATING TO THIS AGREEMENT (OR RELATING TO ANY OF THE SERVICES, APPLICATIONS, OR PRODUCTS), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) WITHOUT LIMITING THE FOREGOING, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE TO THE CONTRARY, THE PARTIES ACKNOWLEDGE AND AGREE THAT TIMECO WILL HAVE NO LIABILITY TO CUSTOMER OR ANY OTHER INDIVIDUAL OR ENTITY ARISING FROM OR RELATED TO ANY DEVICES, PRODUCTS, PROGRAMS, SYSTEMS, OR SERVICES MANUFACTURED, OWNED, OR PROVIDED BY ANY MANUFACTURER, RETAILER, SELLER, OR OTHER INDIVIDUAL OR ENTITY OTHER THAN TIMECO (COLLECTIVELY, “THIRD PARTY PRODUCTS”) EVEN IF SUCH THIRD PARTY PRODUCTS ARE OFFERED, SOLD, OR PROVIDED TO CUSTOMER AS PART OF THE SERVICES OR THE APPLICATIONS OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
ARTICLE 9: TERM AND TERMINATION
9.1 Term.
The term of this Agreement is effective as of the Effective Date and will continue and remain in force until terminated in accordance with this Article 9.2 Termination Without Cause.
Either Party may terminate this Agreement at any time without cause by providing written notice of at least (30) days to the other Party of intention to terminate.
9.3 Termination for Breach.
Either Party may immediately terminate this Agreement if the other Party material breaches any provision of this Agreement and fails to cure such material breach within (30) days after the non-breaching Party provides written notice describing the breach to the breaching Party.
9.4 Effect of Termination.
Upon any termination of this Agreement for any reason, (a) Customer and all Users shall immediately cease accessing or using the Services, Applications, and Products; (b) each and every right granted to Customer or Users by TIMECO under this Agreement (including but not limited to the right to access and use the Services, Applications, and Products) will immediately be terminated and revoked; (c) Customer shall pay to TIMECO all amounts due and payable under this Agreement (including but not limited to the Fees through the effective date of the termination); and (d) Customer shall immediately return to TIMECO any and all Confidential Information in Customer’s possession or control.
ARTICLE 10: GENERAL PROVISIONS
10.1 Amendments.
No amendment to this Agreement will be effective unless it is in writing and signed by both Parties. Notwithstanding the foregoing, TIMECO, in its sole and absolute discretion, may at any time amend Exhibit A (to update the list of the Applications) by providing written notice to Customer of any such amendments.
10.2 No Third-Party Beneficiaries.
Except for the rights to indemnification under Article 7, this Agreement benefits only the Parties and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers upon any other individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
10.3 Independent Contractor Status.
Customer will be regarded as an independent contractor with respect to TIMECO for all purposes, including, without limitation, tax purposes, and the Parties will represent such status to all third parties.
10.4 Assignment.
Customer may not assign or transfer any of its rights or obligations under this Agreement without TIMECO's prior written consent, which may be withheld in TIMECO’s sole and absolute discretion. Any purported assignment or transfer in violation of this Section will be void and of no force and effect. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns. TIMECO may freely assign this Agreement without the prior consent of Customer.
10.5 Execution and Counterparts.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same document. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
10.6 Survival.
All of the terms, provisions, obligations, and responsibilities in Sections 2.5, 2.8, 2.9 and 2.10 and Articles 5, 6, 7, 8, 9, and 10 of this Agreement, together with any other provision, right, or obligation that by its nature, should survive termination or expiration of this Agreement or otherwise aids in its interpretation, will survive the termination of this Agreement.
10.7 Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, this Agreement will be modified so as to effect the original intent as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10.8 Governing Law; Jurisdiction; Venue.
This Agreement will be governed by the internal laws of the State of Florida (without regard to conflict of laws or similar concepts). Exclusive jurisdiction and venue will lie, and all legal proceedings will be brought, in the Twelfth Judicial Circuit in and for Sarasota County, Florida, or in the United States District Court for the Middle District of Florida.
10.9 US Government Rights.
The Services, Applications, and Products consist of commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer receives only those rights as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
10.10 Force Majeure.
Except for the obligation to pay the Fees and any other amounts payable under this Agreement, neither Party will be liable or responsible for any failure or delay in its performance of obligations under this Agreement due to any cause beyond such Party’s reasonable control including, but not limited to, acts of war, riot, terrorism, acts of God, epidemic, pandemic, hurricane, earthquake, flood, natural disaster, embargo, supply chain disruptions, and labor shortage; provided, however, that the affected Party must give the other Party prompt written notice of such cause and must use commercially reasonable efforts to promptly correct such failure or delay to the extent possible.
10.11 Waiver.
Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.12 Remedies.
The Parties will have all remedies available at law or equity, specifically including, without limitation, entitlement as a matter of course to an injunction or similar equitable relief without the requirement to post bond or with a nominal bond, if permitted by applicable law.
10.13 Further Assurances; Cooperation.
Each of the Parties will, from time to time at the request of the other Party, furnish the other Party such further information or assurances; execute and deliver such additional documents, instruments, and conveyances; and take such other actions and do such other things, in each case as may be necessary or desirable in the opinion of the requesting Party to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.
10.14 Notices.
Except as otherwise provided by this Agreement, all notices and other communications required or permitted under the Agreement must be in writing, and the notice or communication will be deemed given if sent to the addresses specified below either (i) by registered or certified U.S. mail, return receipt requested, postage prepaid, or (ii) by nationally-recognized courier service.
If to Customer:
____________________________________
____________________________________
Attention: ____________________________________
If to TIMECO:
TIMECO Systems Inc.
1819 Main Street, Suite 1001
Sarasota, Florida 34236
Attention: Scott Rutledge
10.15 Entire Agreement.
This Agreement together with any other terms and policies applicable to the Services, Applications, Products, and the websites and applications through which they can be accessed (including, without limitation, the other Requirements and Restrictions) constitutes the sole and entire agreement of TIMECO and Customer with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and verbal, regarding such subject matter. In the event of any conflict between this Agreement and any other Requirement and Restriction, this Agreement will govern absent an explicit statement to the contrary.
10.16 Class Action Waiver.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY APPLICABLE LAW OR COURT OF LAW TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER PARTY, THE PARTIES AGREE THAT: (A) THE PREVAILING PARTY IN SUCH ACTION WILL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (B) THE PARTY WHICH INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
10.17 Waiver of Jury Trial.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, SUIT, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES, APPLICATIONS, OR PRODUCTS.