The Information We Collect:
Information you voluntarily provide us: When you visit our Site or use the Services, you may voluntarily provide us with certain information that identifies you including without limitation your name, address, telephone number and email address and any other information you may choose to share. In some cases, if you decline to share such information with us, we may not be able to respond to you or provide you with services. Other than as provided in this Policy, we will not use, disclose or share your information with any third parties, without your consent.
Information which we collect automatically: When you visit our Site or use our Services, we may collect additional information, such as your internet protocol (or “IP”) address, browser, operating system, pages or content you access while visiting the Site and the date and time of such access.
Cookies and Tracking Technologies: We may collect information through the Site by way of cookies or other tracking technologies. Cookies and other tracking technologies are script files that facilitate the collection of information, such as the number of visitors to the Site, and how each visitor arrived at the Site. You may be able to reject or block cookies or tracking technologies on the Site by adjusting your browser settings. Most browsers offer instructions on how to reset the browser to reject cookies in the “Help” section of the toolbar. If you elect to reject cookies and other tracking technologies we may not be able to deliver certain information or services to you.
Payment Information: We collect certain payment and billing information when you register for certain paid Services. For example, you may be required to provide name and contact information at registration, as well as payment card details.
Device Information: We collect information about your computer, phone, tablet or other devices when you access our Site or use our Services, including connection type, operating system, browser type, IP address, device identifiers. You can disable the collection of much of this information through the settings of your device or through your operating system.
How We Use the Information We Collect:
We only use your information as permitted by law. We may combine information that we collect with information from external sources. We may use your information to:
– Promote use of our Services to you and others or to send you marketing materials.
– Bill and collect payment.
– Provide you the Services.
– Obtain your feedback on our Site and Services.
– Statistically analyze user behavior and activity and to improve the Site or Services.
– To communicate with you and provide customer support.
– Your consent for a specific use.
Google Analytics: Google Analytics is a web analysis service provided by Google that utilizes cookies to monitor web-traffic on the Site. We use Google Analytics to collect, track and examine data about the Site’s usage. We may run reports based on the data we collect and we may share the data with other Google services. Google may use the data to personalize and customize the advertisements that are served to you from its advertising network. The Site does not respond to Do Not Track Signals from your browser.
Who We Share Your Information With:
We may share or transfer information you provide to us or that we collect on the Site or through the Service.
– Business-related transfers. We may share your information to other businesses that we acquire, are acquired by, or with which we merge or partner.
– Service Providers. We may transfer information to third parties with whom we contract to support our activities, including maintaining and managing our end-user information.
– Compliance with Laws. We may determine that we need to share your information with law enforcement in order to comply with law or the legal process.
– Protect Our Rights. We may share your information to protect our rights and property. For example, we may share information if we believe it will prevent the misuse or unauthorized use of the Site or the Services, protect the personal safety or property of our users or the public, or in the event of bankruptcy proceedings.
Retention of Your Information:
We may retain your questions and feedback in order to improve the Site. Do not send us any information, ideas, suggestions, proposals or comments that you consider confidential or that you wish to be treated as confidential. If you no longer want us to use or retain personal information you provided to us, you may contact us at email@example.com and request that we delete that such personal information from our records.
Third Party Privacy Practices:
How We Store and Secure Your Information:
We use data hosting service providers in the United States and Canada to host the information we collect, and we use technical measures to secure your data.
We will undertake reasonable steps to protect all information, from unauthorized or accidental access, disclosure, misuse or processing, or from alteration, destruction, or loss. However, because no security measures are perfect or impenetrable, we cannot guarantee the security of information you submit to us.
How Long We Keep Your Information:
We retain your personal information in accordance with our data retention policies and practices. The length of time we keep your information depends upon a number of factors, including the type of information. In general, we retain personal information for as long as we have an ongoing business need to retain it. Following that period, we will delete it.
Users from the European Economic Area:
Legal Basis for Processing. If you are an individual in the European Economic Area (EEA), we collect and process information about you only where we have legal bases for doing so under applicable European Union laws. The legal bases depend on how you use the Site and the Services:
– We need to collect and use the information to use Services;
– It satisfies a legitimate interest (which is not overridden by your data protection interests), such as for research and development, to market and promote the Services and to protect our legal rights and interests;
– You give us consent to do so for a specific purpose; or
– We need to process your data to comply with a legal obligation.
If you have consented to our use of information about you for a specific purpose, you have the right to change your mind at any time, but this will not affect any processing that has already taken place. Where we are using your information because we or a third party (e.g. your employer) have a legitimate interest to do so, you have the right to object to that use though, in some cases, this may mean no longer using the Services.
How to Access or Control Your Information – The General Data Protection Directive individuals in the EEA certain rights with respect to their information. These include the right to request a copy of your information, to object to our use of your information (including for marketing purposes), to request the deletion or restriction of your information, or to request your information in a structured, electronic format. You can exercise these rights by contacting us at the address in the Contact Section below.
The GDPR provides that we may limit or deny your requests in certain cases. For example, if fulfilling your request would reveal information about another person, or if you ask to delete information which we have compelling legitimate interests to keep, including as required by law. You may have the right to complain to a data protection authority in the country where you live, where you work or where you feel your rights were infringed if you have concerns about your rights.
Other International Users:
The Site is hosted and the Services are performed in Canada or the U.S. and are intended for Canadian or U.S. customers. If you are a consumer accessing the Site from Asia, or any other region with laws or regulations governing personal data collection, use and disclosure that differ from Canadian or U.S. laws, your continued use of the Site, which is governed by Canada or U.S. law and these terms, indicates your consent to transfer of your information to Canada or the U.S.
If You have any questions regarding this Policy or how we treat information pursuant to this Policy we encourage you to contact us at firstname.lastname@example.org.
Because protecting the privacy of young children is especially important, we do not knowingly collect or maintain information from or about persons under 13 years of age. No part of our Site is structured to attract anyone under 13. If you are under 13, do not use or access the Site at any time or in any manner. If we learn that personal information of persons under 13 has been collected on the Site without verified parental consent, we will take appropriate steps to delete this information.
YOUR CALIFORNIA PRIVACY RIGHTS (FOR CALIFORNIA RESIDENTS ONLY):
Section 1798.83 of the California Civil Code requires select businesses to disclose policies relating to the sharing of certain categories of customers’ personal information with third parties. These businesses are required to accept requests for disclosures of these policies from customers but are only required to honor one request per calendar year. Businesses have thirty (30) days to respond to each inquiry to the designated address. Each inquiring customer will receive an explanation of the categories of customer information shared and the names and addresses of any third-party businesses. In limited circumstances, customers’ failure to submit requests in the manner specified will not require a response from the business.
If you are a California resident, you may request such information from us by sending a letter to the address listed below. In your letter, please provide your name, address and email address, as well as a request that we provide such information to you, by using the following or similar language, “I request that TimeTrex.com provide its third-party information sharing disclosures required by section 1798.83 of the California Civil Code.”
Unit 22 – 2475 Dobbin Rd.
West Kelowna, BC
Canada V4T 2E9
We may revise this Policy at any time. Any Policy revisions will be effective upon posting to the Site. You should review this Policy, each time you visit the Site or the Services, to inform yourself of any revisions. Your continued use of the Site or the Services will constitute your acceptance of the Policy as revised.
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.
1.1 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.
1.2.2 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 Professional Services 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, (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 or (m) use the open source version of Company software (such as “Company Community Edition”) or any derivative works of any open source version of Company software to access data which was at any time accessed by the Company Products.
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.
2.4 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.
3.1.1 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.
3.2.3 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.
3.3.7 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.
4.1 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 fifty U.S. dollar (US$50.00) fee for processing each check, money order and wire transfer (or any other payment method that requires manual intervention).
4.3 Charge backs and Dishonored Payments. Unless notice is provided in writing at least thirty (30) days prior to a chargeback being initiated or disputed EFT/ACH transaction or dishonored check (collectively the “Dishonored Payments” ) being processed by the Company, the Customer makes all reasonable efforts to cure any dispute that may result in said chargeback or Dishonored Payments, 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 one-hundred-and-ten U.S. dollars (US$110.00) per hour for administration time related to each chargeback or Dishonored Payment(s) regardless of the chargeback 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 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.
4.6 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.
4.7 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. Upon receipt of a Cancellation Request, Customer authorizes Company to process payment using any payment method provided to Company for any and all outstanding amounts owed.
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 professional services 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.
6.1 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.
11.1 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, court order, 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.
13.1 “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, including but not limited to Biometric Data, 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.
13.30 “Biometric Data” means “biometric identifiers” and “biometric information” as defined in the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq., or as may be defined in any other applicable local laws that govern the collection, use, storage or disclosure of biometric data. “Biometric identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. “Biometric information” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.
2 Subscription Term. Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues for twelve (12) monthly periods thereafter (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.
2.1 Early Termination Fee. If Company terminates Services for nonpayment or other default before the end of the Initial Term, or if Customer terminates Services for any reason not withstanding Section 5.5, Customer agrees to pay an Early Termination Fee in the amount specified below (“Early Termination Fee”) in addition to all other amounts owed. The Early Termination Fee will be the highest one (1) month subscription fees since the beginning of the Initial Term, multiplied by the remaining months left in the Initial Term. For example, if the highest monthly subscription fees were $100, and there is three (3) months remaining in the Initial Term, the Early Termination Fee would be calculated as $300. The Early Termination Fee is not a penalty, but rather a fee to compensate Company for Customer’s failure to satisfy the commitment Term on which Customer’s rate plan is based.
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.
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.
1. Definitions. This section only pertains to Customers, which for this section only will be referred to as the “Referrer”, that have explicity signed up to become a Referral Partner and have submitted a signed Pre-Authorized Credit Agreement.
2. Referred Customers. Only customers who click on the Referrer’s specific Referal Link as provided by the Company and within sixty (60) days process payment for an order through the Company’s Website will be considered to be a Referred Customer for the purposes of commission payments to the Referrer.
3. Commissions. The referral commissions shall be calculated as 15% percent of the initial and any subsequent orders for the net value of goods or services sold by the Company as a direct result of the referral. Net value shall exclude any and all taxes, duties, tariffs, shipping, handling, brokerage, non-margined goods/services, adjustments (including but not limited to refunded amounts) and custom development services.
4. Minimum Thresholds. The Referrer agrees to maintain minimum thresholds in order for commissions to be calculated and paid out. If the minimum thresholds are not met, the Referrer forfeits any and all commissions for that commission cycle (quarter) and their account may be suspended or cancelled. The minimum thresholds require that all of the following criteria be met:
4.1. The average number of referred customers is equal to or greater than one (1) per quarter since the Referrers account with the Company was created. This average is calculated by taking the total number of referred customers divided by the number of quarters that have elapsed. The number of quarters that have elapsed is calculated by taking the number of months that have elapsed ( using a minimum of three (3) ) divided by three (3).
4.2. There has been at least one new Referral in the last 365 days.
4. Commission Payments. If the Referrers account is active and the minimum thresholds have been met and the Referrer’s total commission amount has exceeded one-hundred dollars ($100USD), within forty-five (45) days after the end of that quarter the Company will process payment to the Referrer’s bank account via Pre-Authorized Credit (direct deposit), minus any and all financial fees charged to the Company by either the Company or the Referrer’s financial institution.
5. Taxes. Referrer shall bear sole responsibility for payment of taxes owed by Referrer on the Commissions. Neither Referrer nor the Company shall have any authority to enter into agreement of any kind on behalf of the other party.
6. Referrers. The relationship between the Referrer and the Company shall at all times be that of independent contractors. No employment, partnership or joint venture relationship is formed by this agreement and at no time may the Referrer position itself as affiliated to the Company, except as an independent referrer. In view of this independent relationship the Referrer shall not enter into any agreements on behalf of the Company, shall make no warranty either expressed or implied on behalf of the Company and shall not incur any expenses on behalf of the Company.
7. Termination. Upon termination by either party all outstanding referral fees due to the Referrer up to the termination date shall be settled in full within forty-five (45) days.
(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.
Payment Services Addendum (“Addendum”) (Last Updated: Dec 1, 2018)
All terms defined or used in the Agreement shall have the same meaning in this Addendum unless otherwise specified.
Now therefore, good and valuable consideration, the sufficiency of which is hereby acknowledged, Customer and Company agree as follows:
SECTION I – DEFINITIONS
“Payee” means any intended recipient of payments under the Payment Services and may include Customer’s employees, taxing authorities, governmental agencies, suppliers, benefit carriers and/or other third parties; provided that in the case of Wage Payment Services, Payee shall be limited to Customer’s employees and independent contractors.
“Payment Services” means any Services that involve electronic or check payments being made by Company to third parties on Customers’s behalf and at its direction.
“Security Incident” means a security breach (as defined in any applicable law) or any other event that compromises the security, confidentiality or integrity of Customer’s Personal Information.
“Personal Information” means information relating to an identified or identifiable natural person. An identifiable natural 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 such person’s physical, physiological, mental, economic, cultural or social identity.
SECTION II – DEFINITION OF SERVICES UNDER THIS ADDENDUM.
1. Wage Payment Services. Payment of wages, commissions, consulting fees, or similar compensation or work-related expenses in the employment context to employees and independent contractors via direct deposit, check, or payroll debit cards, in each case to the extent the method of payment delivery is in scope.
2. Employment Tax Remittance Services. Coordination of payroll-related tax and/or regulatory agency deposits, filings, and reconciliations on behalf of employers as and when directed by Customer.
3. Wage Garnishment Payment Services. Garnishment payment processing and disbursement of payments to appropriate payees as directed by Customer.
SECTION III – ADDITIONAL TERMS AND CONDITIONS FOR EACH SERVICE.
1. Wage Payment Services. The following additional terms and conditions apply to the Wage Payment Services:
1.1. Customer Credentialing. Customer understands and acknowledges that the implementation and ongoing provision of Payment Services are conditioned upon Customer passing (and continuing to pass) a credentialing process that Company may deem necessary in connection with the provision of Payment Services.
1.2. Additional Requirements. Payment Services may be subject to the rules and standards of any applicable clearing house, payment and/or card networks or associations. Customer and Company each agree to comply with all such rules and standards applicable to it with respect to Payment Services.
1.3. Funding Obligations. Customer acknowledges that Company is not a lender. As such, as a condition to receiving services, Customer will remit or otherwise make available to Company sufficient, good and available funds within the agreed-to deadline and via the agreed-to method of delivery to satisfy all of Customer’s third-party payment obligations covered by the Addendum. Company will apply such funds to satisfy such third-party payment obligations. Company will not be required to provide Payment Services if Company has not received all funds required to satisfy Customer’s third-party payment obligations. Customer will immediately notify Company if it knows or should know that it will not have sufficient funds to satisfy the amounts required in connection with the Payment Services. If Customer has a material adverse change in its condition, Company may modify the funding method or deadline by which funds must be made available to Company for payment to Payees. Customer agrees to pay to Company upon demand any amounts that have been paid by Company to satisfy Customer’s third party payment obligations prior to receiving such amounts from Customer.
(a) Funding Shortfall. In the event that Customer funds to Company have been returned, recalled, or disputed (each a “Funding Shortfall”) for any reason after Company has satisfied Customer’s third party payment obligations, Customer agrees to cooperate with Company and any other third parties to recover funds transferred to any Payee or credited to any Payee’s account in relation to the Funding Shortfall. Additionally Customer agrees to reimburse Company for any and all expenses related to such Funding Shortfall including but not limited to one-hundred ($100) USD per hour for time spent by Company’s employees with a minimum of $250 USD per incident; and Customer agrees to pay Company interest, calculated daily, at the maximum rate permitted by law on the Funding Shortfall amount for as long as it is outstanding.
(b) Funding Obligation Limitations. Under no circumstances shall Customers Funding Obligations in connection with this Addendum be capped or limited by Section 9.1 of the Agreement or any other section of any agreement to Company.
1.4. Recovery of Funds; Stop Payment Requests. Customer agrees to cooperate with Company and any other third parties to recover funds erroneously issued or transferred to any Payee or credited to any Payee’s account. If Customer desires to stop payment on any check or to recall or reverse any electronic payment, Customer will provide Company with a stop payment request in the form required by Company. Customer acknowledges that Company’s placement of a stop order request is not a guarantee that such stop payment will occur.
1.5. Investment Proceeds; Commingling of Customer Funds. IF COMPANY RECEIVES CUSTOMER’S FUNDS IN ADVANCE OF THE TIME COMPANY IS REQUIRED TO PAY SUCH FUNDS TO THIRD PARTIES, ALL AMOUNTS EARNED ON SUCH FUNDS, IF ANY, WHILE HELD BY COMPANY WILL BE FOR THE SOLE ACCOUNT OF COMPANY. Company may commingle Customer’s funds with similar funds from other Customers and with similar Company and Company-administered funds. Company utilizes a funds control system that maintains general ledger entries by Customer and/or by jurisdiction. At no time and under no circumstances will Company’s regular operating funds be commingled with Customer’s funds.
1.6. Company Check Services. Customer agrees not to distribute any Company Checks to Payees in a manner that would allow Payees to access the associated funds before pay date. With respect to Company Checks drawn on an Company bank account, to request a stop payment, Customer shall provide Company with a written stop payment order request in the form provided by Company and Company shall place a stop payment order in accordance with its standard operating procedures.
1.7. Full Service Direct Deposit (FSDD). Prior to the first credit to the account of any employee or other individual under FSDD services, Customer shall obtain and retain a signed authorization from such employee or individual authorizing the initiation of credits to such party’s account and debits of such account to recover funds credited to such account under Sections 1.3(a) (Funding Shortfall) and 1.4 (Recovery of Funds).
1.8. International Transactions. Customer expressly acknowledges that Company does not intentionally or knowingly engage in or support international transactions (“IATs”), as defined in the NACHA Rules. Customer represents and warrants that (i) the direct funding for the Payment Services originated by Company on behalf of the Customer does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (ii) Customer will not instruct Company to create, originate, or transmit Entries that use IAT as the Standard Entry Class Code (as defined in the NACHA Rules), or are otherwise required to be IATs under the NACHA Rules; and (iii) Customer will not engage in any act or omission that causes or results in Company creating, originating, or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules. Company may, in its sole discretion, temporarily or permanently suspend providing the Payment Services to Customer, without liability, if Company has reason to believe that Customer has breached any of the foregoing representations and warranties in this paragraph. Customer acknowledges that Customer is the Originator (as defined in the NACHA Rules) of each Entry and assumes the responsibilities of an Originator under the NACHA Rules. Customer further acknowledges that under the NACHA Rules and the UCC, Company, as a Third-Party Sender (as defined in the NACHA Rules), is required to make certain warranties on behalf of the Originator with respect to each Entry. Customer agrees to indemnify Company for any Claim which results, directly or indirectly, from a breach of such a warranty made by Company on behalf of Customer, unless such breach results solely from Company’s own gross negligence or intentional misconduct. Customer also acknowledges that under the NACHA Rules and the UCC, Company is required to indemnify certain persons, including, without limitation, the ODFI (as defined in the NACHA Rules), for the Originator’s failure to perform its obligations thereunder. Customer agrees to indemnify Company for any Claims which result from the enforcement of such an indemnity, unless the enforcement results solely from Company’s own gross negligence or intentional misconduct.
2. Employment Tax Remittance Services. The following additional terms and conditions apply to the Employment Tax Remittance Services:
2.1. Important Tax Information (IRS Disclosure). Notwithstanding Customer’s engagement of Company to provide the Company Employment Tax Services in the United States, please be aware that Customer remains responsible for the timely filing of payroll tax returns and the timely payment of payroll taxes for its employees. The Internal Revenue Service recommends that employers enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (EFTPS) to monitor their accounts and ensure that timely tax payments are being made for them, and that online enrollment in EFTPS is available at www.eftps.gov; an enrollment form may also be obtained by calling (800) 555-4477; that state tax authorities generally offer similar means to verify tax payments; and that Customer may contact appropriate state offices directly for details.
2.2. Important Tax Information. Notwithstanding Customer’s engagement of Company to provide the Company Employment Tax Services in Canada, please be aware that Customer remains responsible for the timely filing of payroll tax returns and the timely payment of payroll taxes for its employees. Company recommends that employers register with the Canada Revenue Agency (CRA) My Business Account to monitor their accounts and ensure that timely tax payments are being made for them, and that online enrollment in My Business Account is available at www.canada.ca; that provincial tax authorities generally offer similar means to verify tax payments; and that Customer may contact appropriate provincial offices directly for details.
2.3. Delivery of Services. Subject to Section 11.10 (Force Majeure) of the Agreement, Customer’s compliance with its obligations in this addendum herein, and any delays caused by third parties (e.g., postal service, agency system and broker delays) and events beyond Company’s reasonable control, Company will deliver the Employment Tax Remittance Services within the time periods established by Customer upon their specific direction provided within the Company Product. Any such non-performance under this section will not constitute grounds for breach.
2.4. Provision of Information. Customer will on an ongoing basis provide Company and not prevent Company from furnishing all information necessary for Company to perform the Employment Tax Remittance Services within the timeframes established or specified by Customer. The foregoing information includes without limitation the employees’ names, relevant dates, wage and employment information, state or province-specific required information, and other documentation to support filing, reconciliation and responses to agencies.
2.5. Transfer of Data to Agency. Customer acknowledges and authorizes Company to transfer by any means, including but not limited to on-line connection, postal service, and/or external media, any and all necessary information to the agencies as part of the Employment Tax Remittance Services. While Company will make reasonable efforts to protect information while in transit to the agencies, each agency may have their own requirements limiting Company or preventing such information from being encrypted. Therefore Customer agrees to indemnify and hold harmless Company for any Security Incident while Customer information is in transit to an agency while in an agency accepted or required format and transit method.
2.6. Customer acknowledges that Company is not providing storage or record keeping of Customer records as part of the Company Employment Tax Remittance Services, and that if the Company Employment Tax Remittance Services are terminated, Company may, in conformity with Section 6 (Confidentiality) of the Agreement, dispose of all such records. If the Company Employment Tax Remittance Services are terminated, any access Customer has to Company websites containing Customer’s data will expire and Customer will be responsible for downloading and gathering all relevant data prior to expiration of any such access that may have been granted.
IN WITNESS WHEREOF, the parties acknowledge their agreement to the foregoing by due execution of this Addendum by their respective authorized representatives. The Addendum cannot be modified or amended by either party except with a separate written document signed by both parties.
Data Processing Addendum (“Addendum”) (Last Updated: Nov 8, 2018)
All terms defined or used in the Agreement shall have the same meaning in this Addendum unless otherwise specified.
Whereas Data Controller may provide TimeTrex, a company located in Canada, with access to personally identifiable information about European Economic Area individuals to act as a Processor in connection with services performed by TimeTrex for or on behalf of Data Controller pursuant to the Agreement;
Now therefore, good and valuable consideration, the sufficiency of which is hereby acknowledged, Data Controller and TimeTrex agree as follows:
SECTION I – DEFINITIONS
1. “Controller” means any person or organization that, alone or jointly with others, determines the purposes and means of the Processing of EU Personal Data.
2. “EU Personal Data” means personally identifiable information about individuals located in the European Union.
3. “GDPR” means the European Union General Data Protection Regulation.
4. “Process(es)” or “Processing” of EU Personal Data means any operation or set of operations that is performed on EU Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure or dissemination, and erasure or destruction.
5. “Processor” means any natural or legal person, public authority, agency, or other body that Processes EU Personal Data on behalf of Controller.
SECTION II – PRIVACY, CONFIDENTIALITY, AND INFORMATION SECURITY
1. Subject Matter and Details of the Data Processing
(a) Subject Matter: Customer Data
(b) Duration of the Processing: The applicable Term plus the period from expiry of such Term until deletion of all Customer Data by TimeTrex in accordance with this Addendum.
(c) Nature and Purpose of the Processing: The provision of the Services to the Customer and the performance of Company’s obligations under the Agreement or as otherwise agreed by both parties.
(d) Categories of Data: May include but not limited to name, address, telephone number, email address, ID numbers, ethnic origin, age, gender, photo, IP address, GPS location and resumes.
(e) Data Subjects: May include but not limited to prospective and existing customers, website visitors, service users, job applicants, Customer employees and their spouses, relatives, dependents and associates.
2. Authority to Process EU Personal Data
(a) Data Controller and TimeTrex agree that Data Controller is the Controller and TimeTrex is the Processor of EU Personal Data, except in those instances when Data Controller is a Processor, in which case TimeTrex is a subprocessor.
(b) These Addendum terms do not apply where TimeTrex is a Controller of EU Personal Data.
(c) TimeTrex will Process EU Personal Data only with Data Controller’s written instructions and solely for the following purposes, (a) on behalf of and for the benefit of Data Controller in connection with the Agreement; and (b) to carry out its obligations pursuant to this Addendum, the Agreement, and (c) as required by applicable law.
(d) Data Controller will have the exclusive authority to determine the purposes for and means of Processing EU Personal Data.
(e) This Addendum and the Agreement are Data Controller’s complete instructions to TimeTrex for the Processing of EU Personal Data. All additional instructions shall be made as a written amendment to this Addendum signed by both parties.
3. Disclosure of and Access to EU Personal Data
(a) TimeTrex will hold all EU Personal Data in confidence and ensure that all persons authorized to process EU Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(b) TimeTrex will (a) provide at least the same level of privacy protection for EU Personal Data received from Data Controller, as is required by the GDPR; (b) promptly notify Data Controller if at any time TimeTrex determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR; and (c) take commercially reasonable steps to remedy any failures to properly Process such EU Personal Data if, at any time, Data Controller notifies TimeTrex that Data Controller has reasonably determined TimeTrex is not Processing the EU Personal Data in compliance with the GDPR.
(c) TimeTrex will only transfer EU Personal Data outside the EEA where adequate data privacy safeguards are in place, such as binding corporate rules, the Model Clauses, or the Privacy Shield principles, unless required by law, in which case, TimeTrex will, unless such prior disclosure is prohibited, notify Data Controller of such requirement before Processing.
(d) TimeTrex will not share, transfer, disclose, or otherwise provide access to any EU Personal Data to any third party or contract any of TimeTrex’s rights or obligations concerning EU Personal Data to a third party, unless Data Controller has authorized TimeTrex to do so in writing, except as required by law. Where TimeTrex, with the consent of Data Controller, provides to a third party access to EU Personal Data or contracts such rights or obligations to a third party, TimeTrex will, with each third party, (a) enter into a written agreement that imposes obligations on the third-party that are consistent with the GDPR, (b) transfer the EU Personal Data to the third party only for the limited and specified purposes as instructed by Data Controller, (c) require the third party to notify TimeTrex if the third party determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR, (d) upon notice, take reasonable and appropriate steps to stop and remediate unauthorized Processing; and (e) TimeTrex shall remain liable to the Data Controller for all obligations subcontracted to, and all acts or omissions of, the third party.
(e) Data Controller hereby provides its consent for TimeTrex to use the subprocessors on Exhibit A to provide the services. To the extent that TimeTrex makes any changes with regard to the use of its subprocessors, it shall inform Data Controller and provide Data Controller with the right to object to such change. To the extent Data Controller has a reasonable objection to such change in subprocessors, the parties shall cooperate to address the objection in a reasonable manner.
(f) TimeTrex may replace a subprocessor if the reason for the change is beyond TimeTrex’s reasonable control. In such instance, TimeTrex shall notify Data Controller of the replacement as soon as reasonably practicable, and Data Controller shall retain the right to object to the replacement subprocessor pursuant to section (e) above.
(g) TimeTrex will promptly inform Data Controller in writing of any requests with respect to EU Personal Data received from Data Controller’s customers, consumers, employees, or other associates. Data Controller will be responsible for responding to any such request, but TimeTrex will reasonably cooperate with Data Controller to address any such request or a request by an individual about whom TimeTrex holds EU Personal Data for access, correction, restriction, objection, erasure or data portability of his or her EU Personal Data.
(h) TimeTrex shall implement appropriate technical and organizational measures designed to protect the EU Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access or use (each a “Security Incident”) and in accordance with Vendor’s security standards.
(i) Upon becoming aware of a Security Incident, TimeTrex shall notify Data Controller without undue delay and shall provide such timely information as Data Controller may reasonably require to enable Data Controller to fulfil any data breach reporting obligations under the GDPR. TimeTrex will take steps to immediately identify and remediate the cause of such Security Incident.
(j) Subject to applicable law, TimeTrex will notify Data Controller immediately in writing of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of EU Personal Data. Data Controller may, if it so chooses, seek a protective order, and TimeTrex will reasonably cooperate with Data Controller in such action, provided Data Controller reimburses TimeTrex for all costs, fees, and legal expenses associated with the action. TimeTrex will have the right to approve or reject any settlements that affect TimeTrex.
(k) The parties agree that the European Commission Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries (2010/87/EU) (“Model Processor Contract”), attached here as Exhibit B, are incorporated by reference for purpose of the Mobile Processor Contract, where TimeTrex is the “data importer,” Data Controller is the “data exporter,” and the data processing activities in Appendix 1 to the Model Processor Contract shall be such activities as necessary for us to perform our Services for Data Controller, and the data security measures in Appendix 2 to the Model Processor Contract shall be those identified in the Agreement and this Addendum.
4. TimeTrex will comply with applicable data protection and privacy laws, including, but not limited to, the GDPR, to the extent such laws apply to TimeTrex in its role as a Processor.
5. Data Controller certifies that it:
(a) Has obtained the written consent, affirmative opt-in, other written authorization (“Consent”) from applicable individuals or organizations in the European Union (including as necessary trade unions or labor officials, or has another legitimate, legal basis for collecting, delivering or making accessible EU Personal Data to TimeTrex (as well at its subsidiaries, affiliates, and subprocessors), and such Consent or other legitimate basis allows TimeTrex (and its subsidiaries, affiliates, and subprocessors) to Process the EU Personal Data pursuant to the terms of the Agreement and this Addendum, and
(b) Has ensured that the collection, delivery and disclosure to TimeTrex of EU Personal Data is in compliance with the GDPR as Controller and all laws applicable to Data Controller and otherwise complies with applicable privacy and data protection laws, including the delivery of comprehensive information notice, as needed.
6. TimeTrex will assist Data Controller in ensuring that its secure Processing obligations, as Controller, under the GDPR are met, which may include assisting Data Controller in a consultation with a supervisory authority where a data protection impact assessment indicates that the intended Processing would result in a high risk. Upon request, TimeTrex shall make available to Data Controller the information necessary to demonstrate compliance with the GDPR and will allow for and contribute to audits, including inspections, to confirm TimeTrex’s compliance with this Addendum by Controller or another auditor mandated by Controller. All expenses resulting from this Section 5 will be incurred by Data Controller, unless TimeTrex is found materially noncompliant.
7. Upon termination of the Agreement, TimeTrex shall either return all EU Personal Data Processed on behalf of Data Controller or delete or destroy the EU Personal Data, including any existing copies, at Data Controller’s expense, if any, unless TimeTrex has a legal obligation to maintain such EU Personal Data.
IN WITNESS WHEREOF, the parties acknowledge their agreement to the foregoing by due execution of this Addendum by their respective authorized representatives. The Addendum cannot be modified or amended by either party except with a separate written document signed by both parties.
Data Processing Addendum
The following are data subprocessors that are used to provide services:
– Google Inc. United States
– SoftLayer Technologies. Inc. United States/Canada
– Hireability, LLC United States