Effective date: May 25th 2018
Read carefully these terms of service ( “AGREEMENT”), which contains the exclusive terms and conditions between Timekit, Inc. (“COMPANY” or “Timekit”), and you (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE sERVICE, “Customer”), regarding access and use of company’s scheduling backend & booking platform (“services”). Your represent and warrant that you have full legal authority to enter into this agreement, under all applicable laws and on behalf of Customer. By selecting the "accept" button on the sign up form, or in our admin interface or by accessing or using the service (“ACCEPTANCE”), you will create a legally enforceable contract where customer agrees to be bound by all terms and conditions of this agreement without modification. For the purposes of the terms below and conditions in this agreement, The "Order Form" shall mean the order page on the company's website to which the services relate. The Order Form shall be incorporated into and form a part of the Agreement.
IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE “DO NOT ACCEPT” BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE
1. Order Forms; Access to the Service
Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the Order Form) Timekit grants Customer the right to access and use the services specified in the Order Form (collectively, the “Service,” or “Services”) during the Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Timekit’s applicable official user documentation (the “Documentation”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at email@example.com
Upon payment of any applicable fees set forth in the Order Form, Timekit agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on the Order Form (“Implementation Assistance”). If Timekit provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Timekit otherwise provides additional services beyond those agreed in the Order Form, Customer will pay Timekit at its then-current hourly rates for consultation.
3. Support; Service Levels
Timekit will provide support and uptime for the Service in accordance with (i) the support package selected by Customer on the applicable Order Form and (ii) Timekit’s then-current standard Support and Availability Policy set forth at https://timekit.io/pricing
4. Service updates
From time to time, Timekit may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Timekit shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Timekit may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Timekit shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
5. Ownership; Restrictions; Feedback
As between the parties, Timekit retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Timekit for the purposes of this Agreement, including any copies and derivative works of the foregoing.Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on the Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement.No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.Customer may from time to time provide suggestions, comments or other feedback to Timekit with respect to the Service (“Feedback”).Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Timekit notwithstanding anything else.Customer shall, and hereby does, grant to Timekit a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.Nothing in this Agreement will impair Timekit’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute. Customer hereby grants Timekit a non-exclusive, royalty-free, worldwide license to use and display Customer’s trademarks, service marks, names, and logos (“Marks”) on the Timekit website solely for the purpose of showing that Customer is a subscriber of the Services. Timekit hereby agrees that its use or display of Customer’s Marks will be consistent with Customer’s reasonable and customary trademark and service mark usage guidelines, as provided to Timekit by Customer from time to time.
6. Fees; Payment
Customer shall pay Timekit fees for the Service as set forth in the Order Form (“Fees”).Unless otherwise specified in the Order Form, all Fees shall be due and payable monthly in advance and you hereby authorize Timekit to charge your selected payment method in advance.Customer shall be responsible for all taxes associated with Service (excluding taxes based on Timekit’s net income).All Fees paid are non-refundable and are not subject to set-off.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Timekit product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Timekit may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service.Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
8. Customer Data
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein.Customer, not Timekit, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.Timekit shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data.Timekit is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Timekit’s gross negligence or willful misconduct.Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use.Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent.Notwithstanding anything to the contrary, Customer acknowledges and agrees that Timekit may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Timekit’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Timekit’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Timekit in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
9. I use the Timekit App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including the iPhone, iPad Touch, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
Both you and Timekit acknowledge that the Terms are concluded between you and Timekit only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that Timekit, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Timekit, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and Timekit acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
Both you and Timekit acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
10. Term; Termination
This Agreement shall commence upon Timekit’s acceptance of the Order Form, and, unless earlier terminated in accordance herewith, (x) shall continue for an initial term of one month (the “Initial Term”), and (y) following the Initial Term, shall automatically renew for additional successive periods of one month each (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party notifies the other party of such party’s intention not to renew no later than five (5) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.Without limiting the foregoing, Timekit may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Timekit’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Timekit shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Timekit shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Timekit shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor) infringes, violates, or misappropriates any third party intellectual property or proprietary right or violates any law or regulation, or (ii) the Service (in the case of Timekit as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).The foregoing obligations of Timekit do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Timekit (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Timekit, (iv) combined with other products, processes or materials not provided by Timekit (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
13. Limitation of Liability
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO TIMEKIT HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and Timekit with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Timekit with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.Notices must be sent to the contacts for each party set forth on the Order Form.Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties.Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Timekit may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.