Time and Attendance Software

                            TimeTrex Terms of Use / Software Subscription Agreement 
(Last Updated November 30, 2014)
PLEASE READ THIS SOFTWARE SUBSCRIPTION AGREEMENT CAREFULLY BEFORE ACCEPTING. THE TERMS AND CONDITIONS OF THIS SOFTWARE SUBSCRIPTION AGREEMENT, ANY ADDITIONAL TERMS AND ANY ORDER FORMS ENTERED INTO BY YOU AND COMPANY INC. ("COMPANY”) ARE COLLECTIVELY REFERRED TO AS THE "AGREEMENT." UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS SHALL HAVE THE MEANINGS SET FORTH IN SECTION 17 BELOW.
BY ACCEPTING, YOU ARE AGREEING ON BEHALF OF THE ENTITY ORDERING THE COMPANY PRODUCT ("CUSTOMER") THAT CUSTOMER WILL BE BOUND BY AND BECOME A PARTY TO THE AGREEMENT AND CERTIFYING THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, DO NOT SELECT THE "ACCEPT" BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ORDER FORM ISSUED TO YOU BY COMPANY.
THE COMPANY RESERVES THE RIGHT TO UPDATE THE AGREEMENT AT ANY TIME AND ANY SUCH CHANGE WILL LEGALLY BIND CUSTOMER NO SOONER THAN FOURTEEN (14) DAYS FROM THE TIME WHEN THE COMPANY PUBLISHES AN UPDATED VERSION OF THE AGREEMENT ON THE WEB SITE, OR THE START OF THE CUSTOMER'S NEXT RENEWAL SUBSCRIPTION TERM, WHICHEVER IS GREATER. IF CUSTOMER DOES NOT AGREE TO THE MODIFIED AGREEMENT THE CUSTOMER SHOULD CANCEL ITS SUBSCRIPTION AND USE OF THE COMPANY'S PRODUCTS PRIOR TO THE CUSTOMER'S THEN-CURRENT SUBSCRIPTION TERM EXPIRATION. WHILE REASONABLE EFFORTS WILL BE MADE TO NOTIFY THE CUSTOMER OF CHANGES TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO NOTIFICATIONS ON THE COMPANY'S WEBSITE AND EMAIL NOTIFICATIONS, IT IS CUSTOMER’S SOLE RESPONSIBILITY, AND IT IS NOT THE COMPANY’S RESPONSIBILITY WHATSOEVER, TO ENSURE THAT CUSTOMER IS UP-TO-DATE ON THE MOST CURRENT VERSION OF THE AGREEMENT. The most current version of the Agreement can be reviewed by clicking on the "Terms & Conditions" hypertext link located at the bottom of the Company’s web site (the "Web Site") pages.
UNLESS AND UNTIL CUSTOMER HAS AGREED TO BE BOUND BY ALL OF THE TERMS OF THE AGREEMENT, CUSTOMER HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE, THE COMPANY PRODUCT. THE "EFFECTIVE DATE" OF THIS AGREEMENT IS THE DAY THAT YOU CHECK THE "ACCEPT" BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ORDER FORM ISSUED TO YOU BY COMPANY.
 1   Subscription.
 1.1   Deployment Model. Company shall make the Company Product available to the Customer pursuant to the terms of this Agreement and the relevant Order Form during the Subscription Term. The Company Product may either be: (a) installed by or for Customer at Customer’s premises, or on a Customer-controlled server within a third party data center ("On-Site"), or (b) the online, Web-based platform and applications that are hosted by Company, or a third party hosting facility designated by Company and provided as a Service ("Cloud"). The model of deployment selected by Customer is as indicated on the Order Form. 
 1.2  Use of the Company Product.
 1.2.1   Terms of Use. The parties acknowledge and agree that the terms and conditions contained in this Agreement and the terms of use applicable to the deployment method selected by Customer, which are attached in Exhibit A, will govern Customer’s use of the Company Product for the Subscription Term, unless explicitly stated otherwise in a written agreement between the parties.
 1.2.2   Company Product Features and Components. Company reserves the right to make modifications to the Company Product or particular features or components of the Company Product, from time to time, at its sole discretion. Company will exercise reasonable commercial efforts to notify Customer of any such material modifications to the Company Product, provided however, that Company will not have any liability for failure to provide such notice.
 1.3   Support. During the Subscription Term and at no additional charge to the Customer, the Company will provide email and reasonable basic telephone support for up to three (3) designated Customer contacts. Additional Customer contacts, Customer training and implementation services are offered as additional fees through the Extended Support and Implementation packages.
 1.4   Customer Responsibilities. Customer shall: (a) be responsible for all Subscription Employees’ compliance with the terms and conditions of this Agreement, (b) be solely responsible for the accuracy, integrity, and legality of Customer Data and the means by which it acquires and uses such Customer Data, (c) use the Company Product only in accordance with the applicable online administrator guide and applicable laws, rules, regulations (including, without limitation, export, data protection and privacy laws, rules and regulations) and any Company Product documentation, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Company Product, and (e) notify Company in writing immediately of (i) any unauthorized use of, or access to, the Company Product or any Subscription Employee account or password thereof or (ii) any notice or charge of noncompliance with any applicable law, rule or regulation asserted or filed against Customer in connection with Customer Data. For the avoidance of doubt, Subscription Employee accounts and passwords are specific to individual Subscription Employees, and under no circumstances may Subscription Employee accounts or passwords be shared among or by different Subscription Employees; provided, however, that the Customer administrator(s) may reassign a Subscription Employee account during the Subscription Term, if a former Subscription Employee no longer requires a Subscription Employee account.
 1.5   Restrictions. Customer shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Company Product or any modified version or derivative work of the Company Product created by or for Customer, (b) provide the Company Product, or any modified version or derivative work of the Company Product created by or for Customer, on a timesharing, service bureau or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Company Product, (d) develop Forked Software, (e) copy any features, functions or graphics of the Company Product for any purpose other than what is expressly authorized in this Agreement, (f) modify, remove or disable any portion of the Critical Control Software, (g) use or modify the Company Product in any way that would subject the Company Product, in whole in or in part, to a Copyleft License, (h) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or Malicious Code, (i) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Company Product or the Customer Data contained therein, (j) use any Intellectual Property Rights protected by applicable laws and contained in or accessible through the Company Product for the purpose of building a competitive product or service or copying its features or user interface, (k) use the Company Product, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Company's prior written consent, or (l) use the Company Product to develop or enhance any (i) open source version of Company software (such as "Company Community Edition"), (ii) derivative works of any open source version of Company software, or (iii) any software code made to work with any open source version of Company software.
 1.6   Third Parties. Customer may use third party contractors to assist with the installation, use and modification of the Company Product for Customer’s own internal business use, including creation of Modifications on Customer’s behalf. Customer agrees not to disclose any Confidential Information of Company to any contractor or allow any subcontractor to create Modifications unless and until the contractor has agreed in writing to (a) protect the confidentiality of such Confidential Information in the manner required by Section 6 and then only to the extent necessary for the contractor to perform those services subcontracted to it, and (b) assign all such contractor’s rights, title and interests (including all Intellectual Property Rights) in such Modifications to Customer to ensure Customer can comply with Section 3.1.1. The Customer will be solely responsible for all payments to its contractors and will remain responsible for compliance by its contractors with the terms and conditions of this Agreement.
 2   Third-Party Software; Third-Party Modules.
 2.1  Third-Party Software. The Company Product utilizes or includes certain Third Party Software. Customer’s use of the Company Product, including all Third Party Software accessible via APIs, is governed by the applicable Third-Party Software terms and conditions. If a Third Party Software provider requires Company to remove such software from the Company Product due to violation of applicable law or third-party rights, Customer agrees to cooperate with Company to ensure its removal from the Company Product and Customer’s systems.
 2.2  Third-Party Modules. Customer may use Third-Party Modules to add functionality to the Company Product, provided that such use is limited to internal use by Customer in a manner that does not violate any provisions of Section 1.5. Any use by Customer of Third-Party Modules and any exchange of Customer Data between Customer and the Third-Party Module provider are solely between Customer and the Third-Party Module provider. Company does not warrant or support Third-Party Modules.
 2.3   Third-Party Privacy Policies. Customer understands and agrees that any Customer Data exchanged with Third-Party Software or Third-Party Module is governed by that provider’s respective privacy policy.
 2.4   Third Party APIs. Features that interoperate with third party services (such as Google) depend on the continuing availability of the API and program for use with the Company Product. If a third party ceases to make the API or program available on reasonable terms to Company, Company may cease providing such third party features without entitling Customer to any refund, credit, or other compensation.
 3   Proprietary Rights and Data Protection.
 3.1   Ownership. 
 3.1.1   Ownership of Company Product and Modifications. Company owns all right, title and interest, including all Intellectual Property Rights, in and to the Company Product, any and all Modifications (collectively, the "Company Property"). Customer hereby does and will assign to Company all right, title and interest worldwide in the Intellectual Property Rights embodied in any and all Customer Modifications. To the extent any of the rights, title and interest are not assignable by Customer to Company, Customer grants and agrees to grant to Company an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s Intellectual Property Rights to use, disclose, reproduce, license, sell, offer for sale, distribute, import and otherwise exploit the Modifications in its discretion, without restriction or obligation of any kind or nature. Except as expressly stated otherwise in this Agreement, Company retains all of its right, title and ownership interest in and to the Company Property, and no other Intellectual Property Rights or license rights are granted by Company to Customer under this Agreement, either expressly or by implication, estoppel or otherwise, including, but not limited to, any rights under any of Company’s or its Affiliates patents.
 3.1.2  Trademarks. Company’s name, logo, trade names and trademarks are owned by Company, and no right is granted to Customer to use any of the foregoing except as expressly permitted herein or by written consent of Company.
 3.1.3   Freedom to Operate and Innovate. Nothing in this Section 4 shall inhibit, hamper, encumber or otherwise impede Company’s freedom to create Modifications or improve, extend and/or modify any and all Company Products.
 3.1.4  Suggestions. Customer or its Subscription Employees may, from time to time, provide suggestions, enhancement or feature requests or other feedback to Company with respect to the Company Property or other Company products, services or related documentation (whether or not such is disclosed or delivered by Company to Customer under this Agreement) (collectively, "Feedback"). Customer agrees that all Feedback is and shall be given by Customer entirely voluntarily. Company shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback in its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as confidential by Customer, shall not create any obligation of confidentiality for Company, unless Company expressly agrees so in writing.

 3.2   Customer Data/Business Information.
 3.2.1   Ownership of Customer Data. Customer owns and retains all Intellectual Property Rights in and to the Customer Data.
 3.2.2   Data Processing. Customer grants Company the right to use, access and process the Customer Data solely to the extent necessary for Company to provide the Company Product and services to Customer, including, without limitation to address service or technical problems, or at Customer’s request, in connection with providing Support Services to the Customer. Company agrees not to use, access, disclose or process any Customer Data, except (a) to perform the obligations under this Agreement, (b) comply with applicable laws, and (c) in accordance with the Terms of Use in Exhibit A, attached hereto.
 3.2.3   Non-Modification and Non-Disclosure. Company shall not (a) modify Customer Data, or (b) disclose Customer Data except as compelled by law in accordance with Section 10, as expressly set forth in this Agreement or as otherwise requested and/or permitted verbally or in writing by Customer for purposes of providing Support Services.
 3.2.4  Notification of Data Request. Unless prohibited from doing so by statute or court order, Company will notify Customer by email if it is required to disclose Customer Data by government or law enforcement.
 3.2.5   Business Information. Customer agrees to allow Company and its Affiliates to collect, store and use Customer business contact information, including names, business phone numbers, and business e-mail addresses, anywhere it does business. Such information will be processed and used in connection with Company’s business relationship, and may be provided to contractors acting on Company’s behalf, Company’s business partners who promote, market and support certain Company products and services, and assignees of Company and its subsidiaries for uses consistent with Company’s business relationship.

 3.3   Data Protection.
 3.3.1   Relationship of the Parties. To the extent that the Customer Data contains personal data about any living individual ("Data"), Company will process that Data only as a Data Processor acting on behalf of Customer (as the Data Controller) and in accordance with the requirements of this Agreement.
 3.3.2  Customer's Compliance with Privacy Laws. Customer will at all times comply in full with the requirements of any applicable privacy and data protection laws (including where applicable, European Union Directives 95/46/EC and 2002/58/EC and any national implementation(s) of them) to which it is subject as a Data Controller ("Applicable Privacy Law(s)").
 3.3.3  Purpose Limitation. Company will process the Data in accordance with Customer's instructions under Applicable Privacy Law(s) and will not: (a) assume any responsibility for determining the purposes for which and the manner in which the Data is processed, or (b) process the Data for its own purposes.
 3.3.4   Usage Data.
(a). In the course of providing Customer with the services described in the Agreement, Company may also collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices the Customer’s Subscription Employees use to access the Company Product or Service. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of browser and modules that are used and/or accessed (the "Usage Data"). Usage Data does not, however, include Customer Data.
(b). The Company Product also includes Critical Control Software that regularly transmits certain usage data, including but not limited to, licensing, system, business contact information, and service performance data, to Company and, if applicable, an Authorized Partner, to verify compliance with the terms of this Agreement and to improve Company’s products and services. Customer hereby authorizes and directs Company and Authorized Partners, if applicable, to use the Critical Control Software in accordance with the terms of this Agreement. Critical Control Software does not collect any Customer Data.
 3.3.5   Aggregated Data Use. Notwithstanding Sections 3.3.1 or 3.3.4, Customer agrees that Company may process the Data and Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the Company products or services in order to: (a) maintain and improve the performance and integrity of Company products or services, (b) understand which Company products or services are most commonly deployed and preferred by customers and how customers interact with Company products or services, (c) identify the types of Company services that may require additional maintenance or support, and (d) comply with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable Customer or any living individual to be identified.
 3.3.6  Third Party Analytics Tools. Customer acknowledges that Company may use third party web analytics tools (such as Google Analytics) that serve cookies or similar tracking technologies through the Company products and services, on end user devices, to collect Usage Data for the purposes described in Section 3.3.5. Customer hereby provides its consent to Company to use cookies or tracking technologies served by those web analytics tools, in a manner that is consistent with industry practice.
 3.3.7   Security. Company will have in place and will maintain throughout the Term, appropriate technical and organizational measures against accidental or unauthorized destruction, loss, alteration or disclosure of the Data, and adequate security programs and procedures to ensure that unauthorized persons will not have access to any equipment used to process the Data.
 3.3.8  Subprocessing. Customer authorizes Company to subcontract processing of Data under this Agreement to a third party provided that: (a) Company flows down its obligations under this Section 3.3, to protect the Data in full, to any subcontractor it appoints, such that the data processing terms of the subcontract are no less onerous than the data processing terms set out in this Section 3.3, and (b) Company will remain fully liable to Customer for the acts, errors and omissions of any subcontractor it appoints to process the Data.
 3.3.9  HIPAA and PHI in Relation to Company Products. Customer understands and acknowledges that neither the Service nor the Company Products or systems are configured to receive and store personal health information ("PHI"), as that term is defined under the Health Insurance Portability and Accountability Act ("HIPAA"), but instead is configured to receive and store Employment Records, as that term is defined under HIPAA, in the capacity of an employer, and therefore Company is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA. As such, Customer agrees, on behalf of itself and its Subscription Employees, not to use the Service or provide access to or submit any PHI to Company when requesting technical and or Support Services, in either case, to, directly or indirectly, submit, store or include any PHI as part of the Customer Data. Customer agrees that Company may terminate this Agreement immediately, if Customer is found to be in violation of this Section.

 3.4   Authorized Partner as Agent for Customer. If Customer purchases a Subscription to the Company Product from an Authorized Partner, then Customer warrants and agrees that it has appointed the Authorized Partner to act as Customer’s agent in the procurement and management of the Company Product and services and that Company may deal with the Authorized Partner on that basis. The provision of any Customer Data by that Authorized Partner will be deemed to have come from Customer directly and it is Customer’s responsibility to ensure the accuracy and completeness of the Customer Data. If Customer does not wish the Authorized Partner to have access to Customer Data or to act on Customer’s behalf, then Customer must inform Company in writing.
 4   Payment.
 4.1   Fees and Payment. Customer agrees to pay all fees specified in the relevant Order Form. Except as otherwise provided, fees set forth in each Order Form hereunder will be: (a) fixed during the Subscription Term set forth in such Order Form, with the exception of variations caused by the increase or decrease of the number of Subscription Employee seats that would affect the then applicable quantity discount, (b) based upon the number of active Subscription Employee seats purchased, even if actual usage is lower, and (c) quoted and payable in United States dollars, (d) non-cancelable and non-refundable. Fees are due upon receipt of the Order Form, unless otherwise noted in an Order Form. Customer agrees to provide Company with complete and accurate billing and contact information and to notify Company of any changes to such information. If Customer purchases a Subscription to the Company Product from an Authorized Partner, the Authorized Partner (i) may agree with Customer to accept payment on a different payment schedule in currencies other than United States dollars; and (ii) will submit payment to Company on Customer’s behalf in accordance with its agreement with Company.
 4.2  Methods of Payment. Methods of payment accepted by the Company are check, money order, electronic fund transfer (EFT), wire transfer, or credit card. If Customer is paying by check or money order, the payment must be sent to the Company’s address as it appears on the Web Site. The Company will charge Customer a thirty-five U.S. dollar (US$35.00) fee for processing each check, money order and wire transfer (or any other payment method that requires manual intervention).
 4.3  Charge backs and unhonored checks. Unless notice is provided in writing at least thirty (30) days prior to a chargeback being initiated or dishonored check being processed by the Company, the Customer makes all reasonable efforts to cure any dispute that may result in said chargeback or dishonored check, the Company will charge Customer and Customer must pay, a one-hundred U.S. dollar (US$100.00) service charge plus any and all out-of-pocket expenses including ninety-nine U.S. dollars (US$99.00) per hour for administration time related to each check that is not honored or for each credit card payment that is charged back regardless of the charge back outcome. All such cases will be reported to major credit bureaus as Delinquent collection account with no exceptions.
 4.4  Collections. A Customer’s Account that is Delinquent for a period of thirty (30) days or more will be reported to credit bureaus as a Delinquent collection account. Customer agrees that all necessary contact and billing information may be shared with credit bureaus for the purposes of debt collection. When and as permitted by applicable law, the Customer agrees to pay all reasonable amounts, including reasonable attorney fees, court costs and other costs incurred by the Company related to collecting any outstanding Account balance.
 4.5  Personal Guarantee. Unless Company expressly agrees in writing, the Customer agrees that themselves along with each and every billing contact (the "Guarantor") provided to the Company assumes joint and several liability and is the personal guarantor of payment for all monies owed to the Company. This is a continuing guarantee by the Guarantor for as long as the Customer is indebted to the Company and shall remain in effect until all debts of the Customer are satisfied or until the Company releases the Guarantor in writing.
 4.6  Overdue Charges. Overdue amounts are subject to interest at a rate of two and one half percent (2.5%) compounded monthly, or the maximum rate permitted by law, whichever is lower. If any charge owing by Customer to Company or the applicable Company Authorized Partner is thirty (30) days or more overdue, Company may, without limiting its other right and remedies, suspend services until such amounts are paid in full.
 4.7   Taxes. Unless otherwise provided, fees specified in quotes or Order Forms, do not include any Taxes, and Customer is responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on Company’s net income or property.
 4.8   Audit. Customer shall maintain accurate records (including, without limitation, the reports described above in Section 4.8) necessary to verify the number of Subscription Employees. Within thirty (30) days of delivery of a written request by Company or its third party appointee, Customer shall provide Company or its third party appointee with such records. If Customer has more Subscription Employees than Customer has paid for, Customer shall immediately pay the applicable fees for such additional Subscription Employees, commencing on the effective date of the applicable Order Form through the remainder of the then current Subscription Term, in addition to reasonable costs incurred by Company associated with reviewing such records.
 5   Term and Termination.
 5.1   Term. The Initial Term, together with each Renewal Term, defined in Exhibit A, attached hereto, is referred to as the "Term" for purposes of this Agreement.
 5.2   Cancellation Request Defined. "Cancellation Request" means Customer’s request, in accordance with this Agreement, to the Company to cease the use and delivery of Company Products and services for the particular Customer’s Account. For a valid Cancellation Request that the Company will deem effective, the Cancellation Request form must be filled out and given by writing via facsimile, first class postal service (postage prepaid), email or by prepaid overnight commercial courier delivered to the Company’s Customer Service Department (address available on the Web Site). All Cancellation Requests not sent by mail or facsimile are not deemed effective until a Cancellation Request Confirmation number is provided by the Company. The Cancellation Request must be received by the Company before 4:00 p.m. PST on the last day of the Term specified in Exhibit A, attached hereto, in order for the Cancellation Request to be processed prior to the start of the next Renewal Term; CHARGES ARE NOT PRO-RATED WHEN CUSTOMER TERMINATES CUSTOMER’S ACCOUNT WITH THE COMPANY. 
 5.3   Full Payment Requirement. Customer’s Account must be PAID IN FULL before any Cancellation Request will be considered effective.
 5.4   30-Day Money Back Guarantee. The Company will provide Customer a thirty (30) day money back guarantee. If Customer is not satisfied with Company Products within the first thirty (30) days of receiving Company Products, Customer may request a refund of the fees Customer has paid in advance. The thirty (30) day period will commence on the earlier of the day the Company receives from Customer an Order Form or the Company receives the Customer's first payment. Any and all fees related to setup, implementation, special order items, custom development, partner programs, overages and time used as part of a extended support package or implementation package are NOT refundable. There will be a 25% restocking fee for all hardware returned, if the Company deems that the hardware is damaged or not resalable in any way, no refund will be issued.
 5.5   Termination by Customer or Company. Either party may terminate this Agreement and any then-current Order Forms prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
 5.6   Effect of Termination. No refunds of payments will be made, unless termination of this Agreement and any then-current Order Forms is a result of a breach by Company under Section 5.5, in which case Customer will be entitled to a refund of the pro rata portion of fees associated with the remainder of the Subscription Term. Customer understands and agrees that upon expiration of the Subscription Term or termination of this Agreement, whichever occurs first, the rights granted under this Agreement and, in connection with any then-current Order Forms, will be immediately revoked and Company may immediately deactivate Customer’s account. Customer acknowledges and agrees that Company may keep copies of Customer Data solely to the extent necessary for the performance of its obligations under this Agreement. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination, unless otherwise stated in this Agreement.
 5.7   Surviving Provisions. Sections 1.5, 3.1, 3.3.4(a), 3.3.4(b), 3.3.5, 4, 5.7, 6, 7.3, 8, 9, 10, 11 and 13 shall survive termination or expiration of this Agreement.
 6   Confidentiality.
 6.1   Confidentiality. The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive Confidential Information. Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, Original Code and the structure, sequence and organization of the Company Product are Confidential Information of Company or its licensors.
 6.2   Destruction. Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
 7   Warranties, Exclusive Remedies and Disclaimers.
 7.1   Company Warranties. Company warrants that (a) it has the legal power to, and hereby does, enter into this Agreement, (b) the Company Product shall perform materially in accordance with the online administrator guide for the applicable Company Product, and (c) Company will use commercially reasonable measures to detect whether the Company Product contains any Malicious Code. If the Company Product does not conform to the warranty specified in Section 7.1(b) above, Customer must notify Company within thirty (30) days of the breach of warranty, and Company agrees to use commercially reasonable efforts to cure the non-conforming portions of the Company Product before Customer pursues any other remedies. Company is not responsible for any non-compliance with this warranty resulting from or caused by any (i) Malicious Code present in the Customer Data made available to Company by Customer, or (ii) Modifications made by anyone other than Company, including by way of example, Modifications made by Customer or any Authorized Partners. Customer’s sole and exclusive remedy for a breach of any of warranties contained in this Section 7.1 shall be to terminate the Agreement pursuant to Section 5.2 and, notwithstanding anything to the contrary in Section 4.1, have Company refund to Customer the pro rata unused portion of any pre-paid Subscription fees.
 7.2   Customer Warranties. Customer warrants that (a) it has the legal power to, and hereby does, enter into this Agreement, (b) it has all rights in and to the Customer Data necessary to permit Company to exercise its rights to access and use the Customer Data as permitted by this Agreement, and (c) the Customer Data or the media on which the Customer Data resides does not contain any Malicious Code.
 7.3   Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN SECTION 7.1 AND AS PERMITTED BY APPLICABLE LAW, THE COMPANY PRODUCT IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY'S PRODUCT OR SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND COMPANY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
 8   Responsibility for Third Party Claims.
 8.1   Company. Company shall, at its expense, (a) defend or settle any third party claims, actions and demands brought against Customer and its Affiliates, officers, directors, employees or agents, where the third party claimant expressly asserts that (i) the Company Product infringes such third party’s trademarks or copyrights, or (ii) Company misappropriated such third party’s trade secrets in the development of the Company Product, and (b) pay all damages finally awarded therein against the Customer indemnified parties or agreed upon in settlement by Company (including other reasonable costs incurred by Customer or its Affiliates, including reasonable attorneys’ fees, in connection with enforcing this Section 8.1), subject to the exclusions (1)-(5) set forth below. Company has no obligation to Customer under this Section for any claim, action or demand to the extent that such claim, demand or action is based on: (1) Third Party Software, Customer Software or Customer Data, (2) Modifications where the Company Product would not infringe, including by way of example, Modifications made by Customer or any Authorized Partners, but excluding Modifications made by Company itself, (3) combination of the Company Product with other products, processes or materials where the Company Product would not infringe except for such combination, (4) where Customer continues to use the Company Product after being notified of allegedly infringing activity or being informed of Modifications that would have avoided the alleged infringement, or (5) where Customer’s use of the Company Product is not strictly in accordance with this Agreement. In the event that Company believes the Company Product, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 8.1 applies, then Company may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Company Product or any applicable part thereof, (2) replace such Company Product, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify such Company Product, or infringing part thereof, so as to make it non-infringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Customer shall have the right to terminate this Agreement solely with respect to the infringing Company Product, and, notwithstanding anything to the contrary in Section 4.1, have Company refund to Customer the pro rata unused portion of any pre-paid subscription fees. THIS SECTION 8.1 STATES COMPANY’S SOLE LIABILITY TO, AND CUSTOMER’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE COMPANY PRODUCTS OR SERVICES DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
 8.2   Customer. Customer shall, at its expense, (a) defend or settle any third party claims, actions and demands brought against Company and its Affiliates, officers, directors, employees and agents, and (b) pay all damages finally awarded therein against the Company indemnified parties or agreed upon in settlement by Customer (including other reasonable costs incurred by Company or its Affiliates, including reasonable attorneys’ fees, in connection with enforcing this Section 8.2) arising from: (i) Customer’s breach or violation of Customer’s responsibilities under Sections 1.4 or 1.5, (ii) claims that Customer Data or Company’s transmission or hosting thereof infringes or violates the rights of a third party, (iii) claims that Customer's or its Subscription Employees’ use of the Company Product or services in violation of this Agreement infringes or violates the rights of such third party, or (iv) claims that Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement.
 8.3   Indemnification Procedures. The party or other person entitled to seek indemnification pursuant to this Section 8 (the "Indemnified Party") shall: (a) promptly notify the other party obligated to provide such indemnification (the "Indemnifying Party") in writing of any such claim, (b) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party’s rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party’s prior written consent), and (c) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. The Indemnified Party may join in defense with counsel of its choice at the Indemnified Party’s own expense.
 9   Limitation of Liability.
 9.1   Limitation on All Damages. EXCEPT FOR A BREACH BY CUSTOMER OF SECTIONS 1.2, 1.4, 1.5, 10 or 1.6, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE LESSER OF THE TOTAL AMOUNT PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY OR FIVE HUNDRED THOUSAND DOLLARS ($500,000). THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4.
 9.2   Disclaimer of Consequential Damages. EXCEPT FOR A BREACH BY CUSTOMER OF SECTIONS 1.2, 1.4, 1.5 or 1.6, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
 9.3   Scope of Limitations on Liability. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE).
 10   United States Government Users.
 10.1   Commercial Computer Software. The Company Product and related modifications were fully developed at private expense and are commercial computer software as defined in FAR 2.101. Any related documentation, technical data, or services are also commercial. In accordance with FAR 12.212 and DFARS 227.7202, all rights conferred in the Company Product, related documentation, technical data, services, or any deliverable to the United States Government are specified in this Agreement. All other uses are prohibited and no ownership rights are conferred.
 11   General.
 11.1   Publicity. Company may include the Customer name on a publicly available customer list. 
 11.2  Customer Logos. Customer understands and agrees that in the event that Customer voluntarily uploads its logo and/or trademark as an image (“Image”) to the Company Product, that the Customer certifies that it owns all rights to said Image and certifies that Customer has the authority and grants to Company a non-transferable, non-exclusive, license to reproduce and display said image within the Company Product user interface and/or Portal, both of which may be accessible to the public internet.
 11.3   Export Compliance. Customer acknowledges and agrees that the Company Product is subject to all applicable export control laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control laws and regulations related to the Company Product, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and all licenses and authorizations issued under such laws and regulations. Customer shall fully cooperate with Company in securing any export licenses and authorizations required under applicable export control laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such Company Product, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control laws and regulations. Customer shall make its records available to Company upon reasonable request to permit Company to confirm Customer's compliance with its obligations as set forth in this Section 11.3.
 11.4   Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 11.4 shall be void.
 11.5   Relationship of the Parties. Company and Customer are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
 11.6   No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
 11.7   Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal Canada laws applicable therein, excluding its conflicts of law provisions. Customer and Company agree to submit to the personal and non-exclusive jurisdiction of the courts located in West Kelowna, BC, Canada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
 11.8   Attorney’s Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs.
 11.9   Manner of Giving Notice. Notices regarding this Agreement shall be in writing and addressed to Customer at the address Customer provides, or, in the case of Company, when addressed to TimeTrex Software Inc., Attn. General Counsel, Unit 22 - 2475 Dobbin Rd. Suite #292, West Kelowna, BC V4T2E9 Canada. Notices regarding the Company Product in general may be given by electronic mail to Customer’s e-mail address on record with Company.
 11.10   Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks.
 11.11  Entire Agreement. This Agreement and any Order Forms or exhibits attached hereto or URLs referenced herein represent the entire agreement of the parties and supersede all prior discussions, emails, and/or agreements including requests for proposals ("RFP"), between the parties and is intended to be the final expression of their Agreement. To the extent there is a conflict between this Agreement and any additional or inconsistent terms, including any pre-printed terms on a customer purchase order, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein, and except as set forth in Section 4.1, no terms stated in a purchase order or in any other order document (other than an Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. The Agreement and all exhibits hereto, including any related Order Forms may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Customer and Company. All rights not expressly granted to Customer are reserved by Company and its licensors.

 11.12   Equitable Relief. Except as otherwise provided, remedies specified herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
 11.13   Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
 12   Hardware devices, warranty and shipping.
 12.1  Warranty. The Company warrants hardware product(s) to be in good working condition and free from defects in material and workmanship for a period of one (1) year from the original invoice date unless otherwise restricted below or by the manufacturer's own warranty policy.
 12.2  Limitation of Liability. The Company's liability as limited to repairing or replacing, at its option, any defective product which is returned, freight prepaid to the Company in accordance with this Agreement. The Customer shall bear all responsibility for shipping charges and risk of loss or damage during transit to the Company. Products which have been subjected to abuse, misuse, alteration, neglect or unauthorized repair or installation, as determined solely by the Company, are not covered by this warranty.
 12.3  Alterations and Improvements. Any alterations, addition, improvements or attachments to the product(s) not authorized in writing by the Company shall be deemed to be a waiver of this warranty by the Customer and shall render this warranty null and void. The Company shall return repaired or replaced product(s) to the Customer, at its expense via regular ground service within Canada and the United States. Shipping charges by all other methods and to all other destinations shall be borne by the Customer.
 12.4  Shipping and Risks During Shipping. When products are shipped to the Customer by common carrier the Company's liability to the Customer for lost or stolen shipments, breakage and/or non-delivery of the product by the common carrier will be limited by the limits of liability provided by the common carrier's terms and conditions of carriage. The Customer may wish to purchase insurance from loss or breakage during carriage for full insurable value of the products you have ordered by making the appropriate requests prior to placing your order. Customer agrees that once orders are shipped they cannot be cancelled. Order cancellation requests must be made in writing and received by the Company prior to the order being shipped for the cancellation request to be deemed effective.
 13   Definitions.
 13.1  "Affiliate" means a company that is Controlled by, under common Control with or Controlling Customer during the period of such control.
 13.2  "API" means application programming interfaces provided by Company as part of the Company Product, which set forth rules and specifications that Third Party Modules may utilize to access Customer Data in accordance with this Agreement.
 13.3  "Authorized Partner" means a Company Product partner that is in good standing with Company under a fully-executed Company agreement and is associated with an Order Form under this Agreement.
 13.4  "Customer Data" means any data, information or material submitted by Customer, or stored by Customer in the Company Product.
 13.5  "Customer Software" means online, Web-based applications and offline software products that are developed by or for Customer, the use of which software is governed by the applicable terms and conditions specified by such software.
 13.6  "Confidential Information" means information that one party (the "Disclosing Party") provides to the other party ("Receiving Party") during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
 13.7  "Control" means ownership, directly or indirectly, of more than 50% of the voting securities that vote for the election of the board of directors or other managing body.
 13.8  "Copyleft License" means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., GNU General Public License and http://www.gnu.org/copyleft/).
 13.9  "Critical Control Software" means functionality that reports the number of authorized Subscription Employees, and provide Company (and Authorized Partners, where applicable) with the ability to monitor certain usage of the Company Product.
 13.10  "Data Controller" means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or European Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or European Community law.
 13.11  "Data Processor" means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the Data Controller.
 13.12  "Forked Software" means modifications to any open source version of the Original Code to develop a separately maintained source code program (a) with features not present in the Original Code or (b) where modifications to the Original Code are not automatically integrated with the Original Code.
 13.13  "Intellectual Property Rights" means any patents and applications thereto, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property and proprietary rights.
 13.14  "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
 13.15  "Modifications" means any work based on or incorporating all or any portion of the Company Product, including, without limitation, modifications, enhancements and customizations to the Company Product developed by Company, Customer, a third party on either such party’s behalf or any combination of such parties.
 13.16  "Customer Modifications" means any work based on or incorporating all or any portion of the Company Product or Company Confidential Information, including, without limitation, modifications, enhancements and customizations to the Company Product developed by Customer or a third party on the Customer's behalf or any combination of such parties, that is used for any purpose other than the Customer's own internal business use, distributed or in any way accessible in part or in whole to any other party, excluding the Customer and the Customer's Portal Users.
 13.17  "Order Form" means a document for purchases of Subscriptions hereunder, including purchase orders, invoices, order notifications and order confirmation documents (either in writing or via the Web), that are agreed to by Company, or entered into between Company and Customer or Customer and an Authorized Partner, as applicable, from time to time. Order Forms are deemed incorporated herein by reference.
 13.18  "Original Code" means Company Product source code.
 13.19  "Personal Data" means any information relating to an identified or identifiable natural person ("data subject"); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
 13.20  "Service" means when the Company Product is purchased by Customer for Cloud hosted use.
 13.21  "Software Releases" has the meaning ascribed to it in Exhibit A of this Agreement.
 13.22  "Subscription" means Customer’s right to use the Company Product for the Subscription Term, per the terms of the Agreement and the related Order Form(s).
 13.23  "Subscription Term" means the period of time which Customer may access the applicable Company Product as set forth in an Order Form.
 13.24  "Subscription Employee" means an individual employee, contractor or agent of Customer authorized by Customer to use the applicable Company Product for which a Subscription has been purchased and who has been given a employee identification and password.
 13.25  "Company Product" means any Company owned software that Company supplies, licenses or sells to Customer under this Agreement from time to time during the Term, including any software that is downloadable from a third party app store (e.g. Company Mobile) and Modifications.
 13.26  "Support Services" shall have the meaning defined in Section 1.3.
 13.27  "Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties, tariffs or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.
 13.28  "Third-Party Modules" means software developed by a third party that Customer may use to add functionality to the Company Product, the use of which software is governed by the applicable terms and conditions specified by such third party.
 13.29  "Third-Party Software" means online, Web-based applications and offline software products that are developed by third parties, and may interoperate with the Company Product, the use of which software is governed by the applicable terms and conditions specified by such third party.
Exhibit A
Terms of Use
The following are the unique Terms of Use for Customers Using the Cloud Service Only:
 1   Service. Subject to the Terms of Use and the terms of the Agreement, Customer shall have the right to access and use the Company Product during the Subscription Term solely for Customer’s own internal business purposes. The Company Product may be accessed through a web browser and/or mobile web client.
 2   Subscription Term. Unless otherwise provided in an Order Form, this Agreement commences on the the first day, and ends on the last day, of the month of the Effective Date (the "Initial Term"). Upon expiration of the Initial Term, this Agreement will automatically renew for additional one (1) month periods (each a "Renewal Term"), unless one party provides the other party with a written Cancellation Request a minimum of one (1) business day prior to the expiration of the then-current term. 
 3  Delinquent Customer’s Account. Customer’s Account will be deemed "Delinquent" if the Company does not receive payment for Company Products within five (5) business days after the commencement of a Renewal Term.
 4  Penalties for Delinquent Customer’s Account. A Customer’s Account that is Delinquent may be put on hold and Customer may be prevented from using Company Products. A Delinquent Customer’s Account that is unpaid for thirty (30) days may, at the Company’s sole discretion, have Customer Data purged, or otherwise deleted. Customer’s Account will continue to accrue charges (including interest charges) while Customer’s Account is on hold.
 5  Reconnection Charge. The Company may charge Customer, and Customer must pay, a reconnection service charge of fifty U.S. dollars (US$50.00) to remove the hold on Customer’s Account and to remove Customer’s Account from Delinquent status.
 6   Customer’s Password. Customer agrees to maintain a secure password ("Customer’s Password") to Company Products, as approved and accepted by the Company. Customer is solely responsible for changing and maintaining Customer’s Password as required to ensure secure access to Customer’s Account. Customer is also solely responsible, and the Company is in no way responsible, for ensuring the confidentiality and secrecy of Customer’s Password. If Customer forgets or loses Customer’s Password or requires a new password, Customer agrees to abide by all the security measures and procedures that the Company may implement and require of Customer, including Customer’s provision to the Company of valid identification, or notarized affidavit. Customer understands and agrees that if Customer does not comply with or does not satisfy (in the Company’s sole discretion) the Company’s security and identification verification procedures, then the Company reserves the right to refuse any or all of Customer’s inquiries and/or requests as they relate to Company Products and/or Customer’s Data.
 7   Maintenance Windows. Customer acknowledges and agrees to the weekly scheduled maintenance windows, which the Company may perform at least every week during off-peak hours. Customer understands and agrees that during a scheduled maintenance window, any or all Company Services may be unavailable. Customer further understands and agrees that the Company has the right to conduct an emergency maintenance window at any time, during which any or all Company Services may be unavailable.
 8   Location of Data. Unless Company expressly agrees in writing, Customer agrees that Customer data and information provided to, or stored on equipment belonging to the Company may be copied to multiple locations within the United States and/or Canada for the purpose of redundancy, backup and disaster recovery.
 9  Software Releases. During the Subscription Term, if Customer has paid the applicable fees and is in compliance with the terms and conditions of the Agreement, Company shall provide automatic updates to Customer’s instance of the Company Product with Software Releases. "Software Releases" may be comprised of Maintenance Releases and/or Feature Releases (as defined below).
 9.1  "Maintenance Releases" means an update to the Company Product which includes fixes to known defects and does not intentionally introduce any new or modified application behavior.
 9.2  "Feature Releases" means a software update which includes both fixes to known defects and introduces new or modified application behavior or changes the available features or functionality of the Company Product.
 10   Development. Customer agrees that it will not, directly or indirectly, conduct any activity that will degrade performance beyond an acceptable level, including but not limited to: (a) conducting automated functionality tests or load tests on the Company Product against Customer's staging and/or testing environments. Customer also agrees not to "frame," "fork" or "mirror" any part of the Company Product on any other device. If Customer does any of the foregoing, Company shall have the right to terminate or suspend Customer’s account and access to the Service without any refund or credit until Customer corrects such violation to Company’s reasonable satisfaction.
 11   Data Storage. With respect to the Service, the maximum disk storage space, including any replication(s) of Customer’s environment (i.e., sandbox) will be determined based on the Company Product purchased by Customer (the "Storage Limit"). If the amount of storage required by Customer exceeds the Storage Limit, Company shall invoice Customer the then-current storage fees for such excess use. Customer agrees to pay such data storage fee within thirty (30) days of invoice.
 12   Backup of Data. Company will maintain a reasonably recent backup of Customer Data for the sole purpose of disaster recovery. 
 13  Prior to Termination.  It is the Customer’s sole responsibility prior to cancellation to obtain all data and reports from the Company Product as access to the Company Product and Company Data is denied from the date the cancellation is requested and all Customer Data is purged from the Customer's database twenty-four (24) hours after the cancellation request is processed. Upon termination Company will have no further obligation to maintain for or provide to Customer any of the Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.


The following are the unique Terms of Use for Customers Using the On-Site Implementation Only:
1.  License Grant. Subject to the terms of this Agreement, Company will make the Company Product available to Customer and its Subscription Employees for use at the Customer’s premises or on a Customer-controlled server within a third party data center, and grants Customer, during the Subscription Term only, a non-exclusive, revocable, non-transferable (except as provided in Section 11.4 of the Agreement) right to install, use and modify the Company Product solely for Customer’s own internal business purposes.
2.  Delivery. Company shall electronically deliver or make available the Company Product and the information necessary for Customer’s use and installation of the Company Product.
3.  Subscription Term. Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues for a period of one (1) year thereafter (the "Initial Term"). Upon expiration of the Initial Term, this Agreement will automatically renew for additional one (1) year periods (each a "Renewal Term"), unless one party provides the other party with written Cancellation Request a minimum of five (5) business days prior to the expiration of the then-current term. 
4.  Additional Subscription Employees. Additional Subscription Employee seats may be added during any given month at the then-current Subscription Employee fee. Customer understands and agrees that Customer will be charged a pro-rata fee for the initial month in which Subscription Employees are added and for each of the monthly periods remaining in the then-current Subscription Term. The Subscription Term for the additional Subscription Employee subscriptions will terminate on the same date as the pre-existing Subscriptions. Customer will be responsible for submitting a new Order Form to Company, or to the applicable Authorized Partner, to request the additional Subscription Employee seat(s) during the Subscription Term. Customer also understands and agrees that the number of Subscription Employee seats purchased under a specific Order Form cannot be decreased during the relevant Subscription Term set forth on such Order Form.
5.  Renewal. All fees required for renewal of a Subscription Term will be reflected in a quotation issued by Company (or by an Authorized Partner, if applicable) in advance of the expiration of the current Subscription Term (each a "Renewal Quote"), and any pricing or changes in the number of Subscription Employees for such renewal Subscription Term will be reflected in the Renewal Quote. Fees for any subsequent renewals shall be set at the then-current Company pricing, unless otherwise stated on the Order Form, Renewal Quote or otherwise agreed to in writing by the parties.
6.   Reporting. Upon Company’s request, Customer shall provide Company with a written report in a mutually-agreed-upon format regarding the Company Product being utilized by Customer and the number of Subscription Employees authorized to use the Company Product, to be delivered to Company no later than five (5) business days after the request has been made by Company.
7.  License Key. Company will provide Customer with a license key to allow access to the applicable Company Product by the specific number of Subscription Employees for which Customer has paid the applicable fees. Customer understands and agrees that the Company Product may not be accessed or used by more than the specified number of Subscription Employees for which Customer has paid the applicable fees and that additional Subscription Employees may only be added per the terms of Section. Any circumvention of technical access and copy protection measures constitutes a material breach of this Agreement and a violation of laws.
8.  Management & Backup of Data. Customer is solely and entirely responsible, and the Company is in no way responsible, for the management and backup of Customer data, and all updates, upgrades, and patches to any software that Customer uses in connection with Company Products, including Company Products themselves.
9.  Software Releases. During the Subscription Term, from time to time Company may provide and make available at no additional charge to the Customer, releases containing fixes or new features to the Company Product. Customer understands and agrees that, Customer may not have immediate access to new or improved features or newer versions of the Company Product until the release is issued to On-Site customers by Company. 
10.  End-of-Life Policy. Customer understands and acknowledges that each Company Product version will only be supported for a period of one (1) year after the official release date (“End of Support Date”) and that prior to the End of Support Date for the version of the Company Product that Customer is using, Customer must upgrade to the latest supported version of the Company Product in order to continue receiving Support Services from Company. Company reserves the right to modify its End-of-Life Policy in the future, by providing notices of such modifications on its website and/or by email to the Customer's provided contact email address.


The following are the unique Terms of Use of the Portal (if included in the Company Product purchased by the Customer):
1.  Definitions.
(a) "Portal" means a Software module that is designed to communicate with the Company Product.
(b) "Portal User" means individual person who is permitted to access and use the Portal. A Subscription Employee, Customer and/or Affiliate employee, contractor or agent shall not be a Portal User.
2.  Where applicable, Customer shall have a non-exclusive, revocable, non-transferable right to access and use the Portal in a development and production environment during the Subscription Term, in each case solely for Customer’s own internal business purposes and limited to the number of Portal Users as indicated by the Company Product that is purchased by Customer. Portal User accounts cannot be shared or used by more than one individual. Notwithstanding anything to the contrary in this Exhibit A, one (1) Customer employee may access and use the Portal for administration purposes only (i.e., to provide access to Portal Users).
3.  If the Portal is hosted by Company, Customer shall be limited to the number of concurrent Portal Users that may access and use the Portal at any given time as indicated by the Company Product that is purchased by Customer. Notwithstanding the foregoing, however, Company may further limit the number of Customer’s Portal Users at any time by providing Customer with written notice, if Company reasonably believes that Customer’s Portal Users are unduly burdening or overwhelming Company’s Cloud service.
4.  If Customer is hosting the Portal (including as an On-Site implementation), then Customer may have an unlimited number of Portal Users access and use the Portal.
5.  By entering into this Agreement, Customer is acting as agent for Customer’s Portal Users and binding them to the terms hereof. Customer shall be responsible for any acts or omissions of Customer’s Portal Users and Customer’s Portal Users' compliance with all of the terms of this Agreement.