PLEASE READ THIS TERMS OF USE AGREEMENT (“TERMS OF USE“) CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON OR ACCESSING OR USING THE TIMETICK (AS DEFINED BELOW) AND/OR CLICKING “I ACCEPT”, YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TIMETICK, INC. (“TIMETICK OR WE“), AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT AND, IF ON BEHALF OF AN ENTITY, TO BIND THAT ENTITY TO THESE TERMS OF USE. THE TERM YOU REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN THE REGISTRATION PROCESS IS COMPLETED. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS TERMS OF USE, YOU MUST NOT ACCESS OR USE THE TIMETICK. TIMETICK and You may be referred to individually as a Party and collectively as the “Parties.”
1. Services
1.1 Subscription Term. Subject to the terms and conditions of this Agreement and in consideration of the fees and terms specified in any SOW, TIMETICK hereby grants You a worldwide, non-exclusive, non-transferable right to access the TIMETICK during the Subscription Term (as defined below), in each case subject to payment of any applicable Subscription Fee (as defined below) and Your compliance with any usage metrics and limitations and any restrictions set forth in this Agreement. Users may exercise such limited right on Your behalf.
1.2 Services. TIMETICK will provide You with access to the TIMETICK, including certain tools, availability of licenses to its application programming interfaces ( “APIs” ) and software development kits, access codes, connectivity standards, protocols, and relevant procedures (collectively, the “TIMETICK Guides” ) to allow You to access and use the TIMETICK as described in this Agreement. You will integrate with and use the TIMETICK under the TIMETICK Guides, as updated by TIMETICK and its third-party service providers from time to time. TIMETICK may take reasonable actions to limit the impact of any failure by You to comply with the TIMETICK Guides. TIMETICK will not be responsible for any delay, limitations, or TIMETICK performance issues resulting from Your failure to comply with the TIMETICK Guides.
1.2.1 TIMETICK APIs. TIMETICK may make an application programming interface or other similar development tools available for use with its Online Services which establishes an interface with such Service (“TIMETICK API”). Unless You and TIMETICK have entered into a separate developer agreement and TIMETICK has provided You with a specific application ID for authentication purposes, You will not use or enable a third party to use any TIMETICK API to access TIMETICK assets or accounts not otherwise controlled by You.
1.3 Access to Service. You are solely responsible for Users’ access to and use of the Services. You are solely responsible for the actions and omissions of any third-party individuals or entities (including contractors, consultants, and agents) who access or use TIMETICK Services under credentials or access rights provided by You, whether authorized by You or not. You agree to ensure such users comply with this Agreement and will indemnify TIMETICK against any claims, damages, or liabilities arising from their use of the Services. You will promptly, but in no event more than 48 hours after becoming aware, notify TIMETICK of any known unauthorized access to or use of TIMETICK Properties.
1.4 Accounts. Registration Information. You represent and warrant that: (i) all required registration information You submit is truthful and accurate; (ii) You will maintain the accuracy of such information. TIMETICK may suspend or terminate Your Account if You breach any of the terms of this Agreement. You are responsible for maintaining the confidentiality of Your Account login information and fully responsible for all activities that occur under Your Account. You agree to immediately notify TIMETICK of any unauthorized use, or suspected unauthorized use, of Your Account, or any other breach of security. TIMETICK will not be liable for any loss or damage arising from Your failure to comply with the above requirements.
1.5 Free Services. If You receive access to the Services or Service’s features on a free or trial basis, beta version or as an early access offering (“Free Trials”), use is permitted only for Your internal evaluation until the earlier of (a) the end of the free trial period; (b) the start date of any purchased subscriptions ordered by You for such Service(s); or (c) termination by TIMETICK in its sole discretion. Free Trials may be inoperable, incomplete or include features that TIMETICK may never release. Notwithstanding anything to the contrary in this Agreement, You understand and agree that Free Trials are made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranty, indemnity, support, accuracy, commitment to availability, security or other related obligation of any kind under this Agreement unless otherwise required by applicable law. TIMETICK’S LIABILITY FOR A FREE TRIAL WILL NOT EXCEED US $50.
2. Data processing
2.1 Data. As between the parties, You own the data and any other content transmitted and processed through Your Account (“Your Data”). TIMETICK will process Your Data only as described in this Agreement and as necessary to provide the TIMETICK, and will maintain appropriate administrative, technical and physical security measures to protect Your Data against unauthorized access, disclosure and loss. You are solely responsible for creating backup copies of any of Your Data at Your sole expense. Notwithstanding any provision in this Agreement to the contrary, You agree that TIMETICK may use Service Data in connection with the development, maintenance, improvement and provision of any of TIMETICK’s service offerings.“Service Data” means any non-personal operational data derived by or on behalf of TIMETICK based on the use of TIMETICK under Your Account.
2.2 Processing. You represent and warrant that you have all rights, permissions, and consents necessary to (a) submit all Your Content to the Services and to (b) grant TIMETICK the limited rights to process Your Content as set forth in this Agreement. You hereby grant TIMETICK a worldwide, irrevocable, fully paid, non-exclusive right and license to use, process, reproduce, distribute, and display Your Content solely:
(i) as required by applicable law;
(ii) as requested by you in writing or as allowed by you via Services access controls;
(iii) to the extent necessary to provide, support, or optimize the Services; or
(iv) as necessary to prevent or address technical problems with the Services or violations of this Agreement.
Notwithstanding anything herein to the contrary, TIMETICK may process aggregated, anonymized data that cannot identify any person and is derived from or created through the use of the Services by you or your Users as it sees fit. TIMETICK may review, either by manual or automated means, all Your Content and reject, not post, remove, deny access to, or delete any of Your Content which breaches this Agreement.
TIMETICK may use aggregated and anonymized data derived from Your use of the Services solely for internal purposes, including product development, analytics, and marketing. Such data will not include any personally identifiable information or any information that could directly or indirectly identify You or any of Your Users.
2.3 Legal Compliance. You will comply with all laws, rules and regulations ( “Applicable Laws” ) in any territory in which You offer, sell distribute or otherwise provide use of any product or service that incorporates any devices or accesses TIMETICK (each a “Product” ) in connection with Your activities hereunder and the provision and use of Your Products. If applicable, You will collect, process and store data in accordance with the terms of Your privacy policy and ensure that Your privacy policy is readily accessible to users and provides accurate disclosures concerning Your data practices. In addition, You will prominently display and comply with a privacy policy on Your Products that includes a full, accurate and clear disclosure regarding TIMETICK’s collection, use and distribution of personal information collected via the TIMETICK in accordance with our Privacy Policy, available at www.timetick.io/legal/privacy/. You will not permit any other party to use TIMETICK to harvest, collect, gather, or assemble information or data regarding other TIMETICK subscribers without their consent. You are solely responsible for obtaining any consents or registrations required in connection with the activities described in this Agreement, and for verifying that Your use of TIMETICK is in compliance with Applicable Laws in any territory in which You offer, sell distribute or otherwise provide use of any Product. You are solely responsible for the performance of Your obligations under any end-user, reseller or other third-party agreements relating to the offering, sale, distribution and use of Products.
2.4 Restrictions. You will access and use the Services in compliance with this Agreement and applicable laws and regulations. Access to and use of TIMETICK Properties is subject to the applicable restrictions and limitations specified in an Order, Documentation, and TIMETICK’s Privacy Policy published on the Site. Without limiting the foregoing, You will not:
(a) sell, resell, license, sublicense, frame, or further distribute TIMETICK Properties; or
(b) use technology, processes, or other means to provide access to and use of TIMETICK Properties to more than one individual under a set of User login credentials; or (c) reverse engineer, disassemble or decompile any component of TIMETICK; or
(d) interfere with the integrity or performance of TIMETICK, including circumvention of any access or use restrictions or use of TIMETICK through connection by any device or hardware other than those Devices made available to You by TIMETICK; or (e) use or permit others to use the TIMETICK in connection with any of the following unauthorized applications: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; enhanced 911 or E911 emergency calling system; commission of intentional physical harm to persons or animals (whether or not fatal); non-consensual surveillance; facilitation of incarceration or criminal investigation; transport of weapons of any type; facilitation of sales or distribution of DEA Schedule 1 substances or substances known to cause harm without known benefits; or uses that are criminal or otherwise unlawful.
You will respond immediately to any reasonable request by TIMETICK in the event of any actual or anticipated interference with TIMETICK by You, Your Products, or Your users.
3. Products
3.1 Product Policy. You are solely responsible and liable for Your Products, and for supporting Your Products. You represent and warrant that Your Products will not: (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, text messages, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vii) offer or promote services that may be damaging to, disparaging of, or otherwise detrimental to TIMETICK or its licensors, licensees, Affiliates and partners.
3.2 Refusal of Products. TIMETICK will have the right, in its sole discretion, to refuse to permit your use of the TIMETICK with a particular Product. Unless TIMETICK states otherwise, such rejection will not terminate this Agreement with respect to any other Product. TIMETICK will have no liability to You for such refusal.
4. Ownership
4.1 Ownership. As between You and TIMETICK, TIMETICK owns all right, title and interest in and to the TIMETICK. Except for the rights granted in Section 1.1, this Agreement grants You no right, title, or interest in any intellectual property owned or licensed by TIMETICK. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright and intellectual property notices and restrictions contained in this Agreement.
5. Relationship
5.1. Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
5.2 Support. We may provide you with support, upgrades, or modifications for TIMETICK in accordance with our service level agreement and in the manner set forth on TIMETICK Pricing Page. In the event we provide any support, it will be considered part of the TIMETICK for purposes of Section 9 (Disclaimer and Limitation of Liability) and Section 10 (Indemnification) below, and we may terminate the provision of such support or modifications to you at any time without notice or liability to you. You understand and agree that you are solely responsible for providing user support and any other technical assistance for Your Products. We may redirect users and potential users of Your Products to your email address on file for purposes of answering general Product inquiries and support questions.
5.3 Independent Development; Feedback. You acknowledge and agree that TIMETICK may be independently creating applications, content and other products and services that may be similar to or competitive with Your Products and content, and nothing in this Agreement will be construed as restricting or preventing TIMETICK from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any comments, suggestions, or feedback related to TIMETICK, you assign all right, title and interest in and to such comments, suggestions and feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account.
5.4. Third Party Products. If You separately procure any services, devices, goods, applications, or online content provided or controlled by a third party for use with the Services (“Third Party Products”), such use is subject to the end-user license or use agreement that You establish with or accept from the third party. TIMETICK makes no representations or warranties regarding any TIMETICK Properties’ compatibility or integration with a Third Party Product, including any updates thereto, and reserves the right to terminate any integration or link to a Third Party Product at any time in its sole discretion. Third Party Products are not Services, and TIMETICK has no liability with respect to Your procurement or use of Third Party Products.
5.5. Third Parties privacy. TIMETICK may utilize third-party service providers to act on TIMETICK’s behalf in connection with providing the Services provided that (a) such third-parties are subject to confidentiality and data security obligations that are substantially as protective as those set forth in this Agreement; and (b) TIMETICK is responsible for such third parties’ acts and omissions in relation to TIMETICK’s obligations under this Agreement.
5.6 Marketing. We may publicly refer to you, orally or in writing, as a TIMETICK licensee of TIMETICK and we may publish your name and logo on the Site or promotional materials without prior written consent. You grant us all necessary rights and licenses to do so.
6. Fees and Payment Terms
6.1 Payment. You agree to pay all fees or charges to your Account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable, as set forth on the TIMETICK Pricing Page. You must provide TIMETICK with a valid credit card or any digital payment method supported by TIMETICK (“Payment Provider“). You authorizes TIMETICK to charge You for the Services using that payment method. You must keep all information in its billing account current to ensure that all fees are charged to the appropriate account and are timely paid. Your Payment Provider agreement governs use of the designated credit card account, and You must refer to that agreement and not the terms of this Agreement to determine Your rights and responsibilities with respect to such payment. By providing TIMETICK with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to TIMETICK hereunder and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the TIMETICK Pricing Page or by e-mail delivery to you.
6.1.1. Alternatively, by additional agreement with TIMETICK, You may remit payments due hereunder via wire transfer or ACH, with specific terms and conditions to be mutually agreed upon in writing. All amounts due under this Agreement or an Order must be paid by You in United States dollars on receipt of the invoice, or five (5) days after the date of the invoice. Unless otherwise agreed to by the Parties in writing, invoices will be sent via email. You will promptly notify TIMETICK in writing (via email) of any changes to Your billing information. In the event payment dates fall on a weekend or holiday, the payments may be completed on the next business day. Except where prohibited by law, TIMETICK may charge You a late fee of 1.5% per month on any past due amounts, plus a recovery fee equal to the total expenses associated with collecting the past due amounts (including third-party fees).
6.2 Subscription Fees and Automatic Renewal. All subscriptions to access the TIMETICK are made on a monthly basis (each a “Subscription Term” ). You will be charged a monthly subscription fee to access the TIMETICK, as set forth on the TIMETICK Pricing Page ( “Subscription Fee” ). Your subscription will automatically renew for additional one (1) month periods until terminated as provided under Section 7. The Subscription Fee will be calculated on the basis of usage and charged monthly at TIMETICK’s then-current price for such subscription. All Subscription Fees are non-refundable.
6.3 Taxes. Other than income taxes imposed on TIMETICK, You will bear all taxes, levies and duties, including without limitation VAT (“Taxes”). Both parties acknowledge and agree that to the extent any services provided by TIMETICK may be subject to any sales or other applicable tax, You shall pay these taxes, assessable by any jurisdiction. You shall include payment of taxes in its submission of Fees and expenses to TIMETICK in U.S. dollars. You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.
6.4. Resellers. You may elect to purchase certain Services through a reseller authorized by TIMETICK (“Reseller”). Your access to and use of the Services purchased through a Reseller is subject to TIMETICK’s receipt of the applicable fees under the Order between Reseller and TIMETICK related to Your purchase. Any claims for refunds owed hereunder must be directed to the Reseller. The terms of this Agreement may not be modified by any agreement between You and the Reseller.
6.5. Fee Disputes. If You have a bona fide dispute in relation to any portion of the Fees invoiced, You shall provide notice to TIMETICK in writing within thirty (30) days from the date of the invoice containing the disputed Fees. Such notice shall set forth the details surrounding the dispute in specific detail so that TIMETICK may investigate the dispute. Upon resolution of the dispute, You shall pay all outstanding amounts determined to be payable per the resolution to TIMETICK within five (5) calendar days of the resolution. You waive the right to dispute any Fees not disputed within thirty (30) calendar days after the date of the applicable invoice.
6.6. Pricing. The “TIMETICK Pricing Page” set forth at www.timetick.io/pricing sets forth the current metrics and pricing, and may be updated from time to time to reflect the addition of new features and functionality and changes in TIMETICK’s business and pricing model.
7. Term and Termination
7.1 Term. This Agreement will be effective upon the date on which You accept this Agreement and will continue until terminated as provided in this Section 7.
7.2 Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of TIMETICK, or any aspect of Your use of and access to TIMETICK, at any time without notice to You and without incurring any liability to You. We may also impose limits on certain features and services or restrict your access to part or all of TIMETICK without notice to You and without incurring any liability to You. Furthermore, TIMETICK may limit, suspend, or terminate Your access to the TIMETICK (and your rights under this Agreement) at any time. This Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by You.
7.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing Your use of the TIMETICK, and providing thirty (30) days prior written notice to TIMETICK.
7.4. Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; (ii) any and all payment obligations, if any, will be due; and (iii) each Party will promptly return to the other Party all Confidential Information of such Party in its possession, custody, or control. Neither Party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement. Notwithstanding clause 7.4(i), TIMETICK’s sole obligation as it relates to copies of, or references or links to, your Product will be to, upon written request from you, make reasonable efforts, as determined in its sole discretion, to remove all such references and links.
7.5 Deletion of Data. TIMETICK will use reasonable efforts to delete your salted and hashed password, name, credit card information and all related information associated with or inside your Account (or any part thereof), excluding data related to past transactions, upon termination of this Agreement or upon Your request.
7.6. Termination for Insolvency or Dissolution. Either party may terminate an Order or this Agreement in the event the other party becomes Insolvent or ceases to do business. For purposes of this Subsection 9.2, “Insolvent” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within ninety (90) calendar days thereafter.
7.7 Survival. Sections 2.1, 2.4, 3.1, 4.1, 5.3, 7.4, 7.5, 7.7, and 8 through 12 will survive any termination of this Agreement.
8. Confidentiality
8.1 Ownership. Confidential Information means all written and oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. All Confidential Information is proprietary to the Disclosing Party or such third party, as applicable, and will remain the sole property of the Disclosing Party or such third party. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a Party’s obligations under this Agreement, neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving Party will notify the Disclosing Party as soon as possible.
8.2 Exceptions. The foregoing provisions will not apply to Confidential Information that: (i) is or becomes generally publicly available or enters the public domain through no fault of the receiving Party; (ii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the receiving Party without use or reference to the Confidential Information of the Disclosing Party; or (v) is approved for release or disclosure by the Disclosing Party without restriction. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the Disclosing party to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the Party receiving Party will, to the extent lawfully permitted, first have given reasonable written notice to the Disclosing Party, so that the Disclosing Party may seek a protective order or other appropriate relief; or (2) to establish a Party’s rights under this Agreement.
9. Disclaimer and Limitation of Liability
9.1. Disclaimer. TIMETICK IS PROVIDED “AS IS”, WHERE IS, WITH ALL FAULTS AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. TIMETICK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/ NON-INFRINGEMENT. SOME ASPECTS OF THE TIMETICK ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED. TIMETICKS DOES NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE TIMETICK IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, OR COMPLETE. TIMETICK IS NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF TIMETICK, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE TIMETICK IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF TIMETICK, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM TIMETICK WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.
9.2 Limitation of Liability. TIMETICK WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE TIMETICK. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL TIMETICK’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE TIMETICK EXCEED THE LESSER OF (A) AMOUNTS PAID BY YOU TO TIMETICK DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER, AND (B) $2,000. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT.
10. Indemnification
10.1 By You. You will defend, indemnify and hold harmless TIMETICK and its Affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to your Product, your use of TIMETICK, or your breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
10.2 By TIMETICK. TIMETICK will, at its expense, defend or, at its option, settle any claim, action or allegation brought against any user by a third party alleging that the TIMETICK infringes any copyright, United States patent or misappropriates a trade secret of that third party and will pay any final judgments assessed thereon or any settlements to which TIMETICK agrees. You will give prompt written notice to us of such a claim and You will give us the exclusive right to defend any such claim, action, or allegation and or to make settlements thereof at our discretion. You will give such assistance and information as TIMETICK may reasonably require to settle or to oppose such claims. This Section 10.2 provides your exclusive remedy for any infringement claims or remedies. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the TIMETICK in a manner other than as specified in this Agreement, (ii) any use of TIMETICK in combination with other products, equipment, devices, systems, or data not supplied by TIMETICK (including the use of Your Data) to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of TIMETICK made by any party other than TIMETICK or its authorized representative, if such infringement would not have occurred without such alteration, modification or customization. In the event any infringement claim, action or allegation regarding TIMETICK is brought or threatened, TIMETICK may, at its sole option and expense: (i) procure for You the right to continue use of TIMETICK or infringing part thereof; (ii) modify or amend TIMETICK or infringing part thereof, or replace TIMETICK or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable, terminate the Agreement and the rights granted herein.
10.3 Procedure. If a party that has a right to be indemnified as described herein (an “Indemnified Party”) and seeks indemnification from the other party (an “Indemnifying Party”) pursuant to the foregoing, the Indemnified Party shall (a) provide written notice to the Indemnifying Party as promptly as possible upon becoming aware of the Claim, (b) shall give the Indemnifying Party sole control of the defense and settlement of the Claim provided, that any settlement unconditionally releases the Indemnified Party of all liability and does not, without the Indemnified Party’s prior written consent, make any admissions of guilt or require the Indemnified Party to make any payments, (c) shall, upon request from the Indemnifying Party and at the Indemnifying Party’s sole cost, provide all reasonable assistance to the Indemnifying Party to support its defense and settlement of the Claim. The Indemnified Party may reasonably participate in such defense and settlement, at its sole expense.
10.4 Infringement Remedy. If You are enjoined or otherwise prohibited from using any of the Services or any portion thereof based on a Claim, TIMETICK will, at its sole expense and option: (a) obtain from such third party the right for You to continue to use the allegedly infringing portions of the Service (the “Infringing Materials”); (b) modify or replace the Infringing Materials so as to render them non-infringing without materially diminishing or impairing their functionality; or (c) if none of the foregoing remedies are commercially reasonable, terminate the applicable Order and provide a pro rata refund for any prepaid fees attributable to the terminated portion of the Services. The remedies set forth by this Section 8 (Indemnification), are Your sole and exclusive remedies for any actual or alleged infringement by TIMETICK of any third-party intellectual property rights.
11. General
11.1. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between you and TIMETICK and governs your use of TIMETICK. This Agreement incorporates the Policies by reference and is the entire agreement between you and TIMETICK regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement (but does not supersede the terms and obligations of pilot agreements, which constitute separate agreements). None of the parties will be bound by any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any Оrder, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.
11.4 Governing Law. This Agreement, Orders, or SOWs, or their subject matter or formation, including non-contractual disputes or claims will be will be governed by the laws of the State of Delaware, USA., without regard to its conflict of law provisions, with exclusive jurisdiction and venue in the state of Delaware courts.
11.5 Arbitration. Any legal actions arising under the Agreement must be initiated within one year after the cause of action arises. Prior to filing any legal claim, the initiating Party must contact the other Party and attempt in good faith to resolve the dispute informally. Except where prohibited by law, the Parties agree to resolve Disputes through final and binding arbitration in accordance with the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) by one arbitrator appointed in accordance with such Rules. The arbitration shall take place in the State of Delaware, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any arbitration action or proceeding shall be entitled to costs and attorneys’ fees. You may opt-out of binding arbitrate by providing notice to TIMETICK pursuant to Section 11.8 above within thirty (30) days from the date that you first became subject to this arbitration provision. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state, or federal court with lawful jurisdiction for such claims.
11.5.1. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL BY JURY. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
11.5.2. Waiver of Class Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER, OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable, or that an arbitration can proceed on a class basis, then the arbitration provisions set forth herein shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
11.6 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will 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.
11.7 Assignment. Either Party may assign its rights and obligations under the Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the non-assigning Party; and (c) any assignee is bound hereby. Other than the foregoing, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, and any attempt by either Party to transfer its rights or obligations under the Agreement will be void.
11.8 Waiver. Failure to enforce or a waiver by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.
11.9 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email (if sent by TIMETICK to you), or by nationally recognized overnight courier (e.g., FedEx). If a notice is given to You by TIMETICK it will be sent to the address provided in connection with Your registration for a Account or to such address as you subsequently provide to TIMETICK as a notice given in accordance with Section 11.10. If you give a notice to TIMETICK it will be sent to TIMETICK, Inc., Attn: Legal, 4850 Hollywood blvd, unit 203, Los Angeles, CA 90027, with a copy sent to legal@timetick.io. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. You agree that TIMETICK may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Service (collectively, “Service Notices“) in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Service Notice on the TimeTick web platform. The delivery of any Service Notice is effective when posted to the platform or sent by TIMETICK (whichever first occurs), regardless of whether You read the Notice when You receive it or whether You actually receive the delivery. You can withdraw your consent to receive Service Notices electronically by canceling your Account. You must give notice to us in writing via email to legal@TIMETICK.io or another address provided by TIMETICK.
11.10 Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility, unavailability of public utilities, disruption or unavailability of the internet or cellular service, transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
11.11 Government End Users. TIMETICK constitutes “commercial computer software” and any associated documentation constitutes “commercial computer software documentation”, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of TIMETICK or such documentation by the United States Government will be governed solely by the terms of this Agreement.
11.12 Export Control Policy. TIMETICK is committed to compliance with all U.S. export, import, customs and economic sanctions, laws, regulations, rules, and orders (collectively “Trade Control Laws”) to which products purchased from TIMETICK apply. (i) TIMETICK will not sell or ship to embargoed countries or individuals and entities who are restricted by a) the U.S. Treasury Office of Foreign Asset Control (“OFAC”) list of Specially Designated Nationals, including entities that are owned 50% or more by such individuals or entities; b) the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) Denied Persons List, Entity List, Unverified List, and Military End User list, or for military end use in China, Russia, Venezuela, Burma, and Cambodia; and c) Department of State’s AECA Debarred List, among others. TIMETICK will not export Products prohibited by the Export Administration Regulations (“EAR”). (ii) You agrees not to export, re-export, or transfer, directly or indirectly, any technical data acquired from TIMETICK, or any products utilizing such data, in violation of the United States export control laws, including the Export Administration Regulations and the International Traffic in Arms Regulations, or in violation of any foreign law, regulation or rule. You shall be responsible for any breach of this Section by Your Affiliates, employees, agents, distributors, resellers or other service providers.
11.13 Remedies. All rights and remedies of the Parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A Party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.
11.14 Revisions. PLEASE NOTE THAT THESE TERMS OF USE ARE SUBJECT TO CHANGE BY TIMETICK IN ITS SOLE DISCRETION AT ANY TIME.
TIMETICK reserves the right to revise this Agreement during the Term anytime and publish a new copy of these Terms of Use at www.timetick.io/legal/terms-of-service. We will also update the “Last Updated Date” at the top of these Terms of Use. After the date of publication, Your continued use of the Services will constitute acceptance of the Updated Agreement unless You provide written notice to TIMETICK of Your objection to the Updated Agreement within five (5) days of such publication date. It is Your responsibility to check the Site regularly for modifications to this Agreement. If You do not agree to any change(s) after they are posted, you should stop using the TIMETICK. Otherwise, Your continued use of the TIMETICK constitutes Your acceptance of such change(s).
11.15. Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
This Agreement may be translated into other languages for convenience purposes only. In the event of any inconsistency or conflict between the English version and a translated version, the English version shall prevail. TIMETICK is not liable for errors or omissions in translated versions.
12. Definitions
“Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a Party. For purposes of this definition, “control” means the power to direct or cause the direction of the management of an entity whether through direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of such entity, by contract, or otherwise.
“Your Content” meansany text, personal information, document layouts, source code, data from the devices, pictures, video, images, audio materials, graphics, documents, data files or any other content that You or its Users uploads or submits to the Online Services. Your Content does not include usage, statistical, learned, or technical information that does not reveal the actual contents of Your Content.
“Disclosing Party” means the party disclosing Confidential Information to the Receiving Party.
“Documentation” means documentation provided by TIMETICK on the Site that is uniformly available and applicable to all TIMETICK customers and relates to the then current operation and use of the Services, including help articles, product manuals, operating instructions, and release notes, each as updated by TIMETICK from time to time.
“Online Services” means all online services, add-ons, or applications, and maintenance for any of the aforementioned, that are provisioned or controlled by TIMETICK.
“Order” means an executed ordering document or online order issued, or otherwise approved in writing, by TIMETICK that incorporates this Agreement by reference and specifies the Services that You are authorized to ac-cess and use and their cost.
“TIMETICK Properties” means Services, Documentation, and all technology, software, data, methodologies, improvements, and documentation used by TIMETICK to provide, or made available in connection with, Services and Documentation, and all intellectual property and proprietary rights in and to the foregoing.
“Receiving Party” means the party receiving or accessing Confidential Information of the Disclosing Party.
“Services” means implementation, configuration, integration, training, advisory, and other professional services provided or controlled by TIMETICK and the Online Services.
“Site” means TIMETICK’s website at www.timetick.io and any website linked from such website that is owned or controlled by TIMETICK.
“SOW” means an executed statement of work, or similar document, between TIMETICK and You describing the Services purchased by You that incorporates this Agreement by reference.
“User” means Your employees, representatives, consultants, contractors, partners, Affiliates, agents, or any other individual authorized by You or Your Users to access and use the Services.
“Term” means the then current period of authorized access and use of a Service specified on an Order or under this Agreement.