AboutTime Technologies Terms and Conditions of the End User License Agreement
1. Parties and Summary. These terms and conditions of the Customer Software License Agreement (these "Terms and Conditions") apply to each order form ("Order Form") of About Time Technologies, LLC ("AboutTime") incorporating these Terms and Conditions and signed by a customer (a "Customer"). This Customer Software License Agreement (this "Agreement" or "Software License Agreement") includes these Terms and Conditions, the Order Form and any attachments.
2. Grant of Customer License. The AboutTime software products (the "Software"), including the AboutTime Mobile Business Management Software, and the accompanying product manual (which is available electronically from AboutTime via e-mail or accessible from an AboutTime website (currently under the Support tab at www.abouttimetech.com) ("Documentation") provided to Customer hereunder (collectively, the "Product") are licensed, not sold, to Customer for use under the terms of this Agreement. Subject to the provisions of this Agreement as well as the payment of all applicable license fees for the term of such license, AboutTime hereby grants Customer and Customer accepts a limited, nonexclusive, nontransferable, non-assignable (except as permitted herein) Object Code license to possess, access, and use the Product for internal use only and for use solely by the employees of the Customer up to the maximum number of users ("End User(s)") identified in the Order Form or as updated by any written addendums hereto. Customer's individual End Users shall agree to and click to accept the terms of the End User License Agreement attached hereto as Attachment A (the "EULA"). At such time as any End User is no longer working for or with the Customer, his or her rights to use the Product shall terminate and such End User shall destroy or return any copies of the Product to Customer.
Customer means the legal entity identified on and executing the Order Form and any majority-owned subsidiaries ("Subsidiaries") of the Customer. Customer may permit subcontractors and vendors of the Customer and their employees (the "Subcontractors") to also become End Users; provided that: (a) Customer gives written or electronic notice to AboutTime of each Subcontractor; and (b) each such End User agrees to the EULA. "Authorized Users" means all persons who are permitted access to the Software under this Agreement, including all End Users, Subsidiaries and Subcontractors. Subcontractors may only use the Software for their work for the Customer and not for Subcontractor's personal use.
3. Consulting Services; Annual Maintenance and Technical Support Services.
(a) Following execution of this Agreement, AboutTime may perform mutually agreed upon customization services (the "Consulting Services") as detailed in an AboutTime Statement of Work. All such services will be governed by the Consulting Services Terms and Conditions attached hereto as Attachment B.
(b) Following execution of this Agreement, AboutTime may provide maintenance and technical support services for the Product ("Maintenance Services") subject to the Terms and Conditions for Software Maintenance and Technical Support Services ("Maintenance Terms") attached hereto as Attachment C.
(a) General Payment Provisions. Customer shall pay AboutTime the sum set forth in this Agreement as consideration for the licenses and services provided under this Agreement. Full payment is due upon receipt of invoice, unless alternative payment terms are established.
(b) Temporary Employee Licenses. Customer may use AboutTime's temporary employee licensing to accommodate seasonal employee fluctuations. Each month AboutTime will log the number of unique employees with time records in that month ("Monthly Unique Employees"). If the Monthly Unique Employees exceeds the number of permanent employee licenses previously purchased by the Customer, the amount of such excess will be the number of temporary licenses ("Monthly Temporary Licenses") that will be charged to Customer. On the first of each month, the Customer will be automatically charged for each of the Monthly Temporary Licenses calculated for the previous month at the then current rates. Customer agrees to provide a credit card or banking information on file to accommodate automated charges of temporary employee licenses.
5. Intellectual Property Rights and License Restrictions. The Product, and all components thereof, is and shall at all times remain, the sole and exclusive property of AboutTime or its licensors, including, without limitation, all worldwide Intellectual Property Rights embodied in, related to, or represented by, the Product or any version thereof. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including moral rights and similar rights.
Other than specifically authorized under this Agreement, Customer may not copy, alter, modify, adapt, translate, or create derivative works based upon the Product or any part of it, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Customer may not de-compile, reverse engineer, disassemble or otherwise reduce the Product. Customer may not rent, lease, sublease, re-license or otherwise make available the Product, in whole or in part, to third parties or use the Product as part of a commercial service bureau, outsourcing, timesharing, or affiliate program environment. Customer shall have no right to create derivative works of the Product, either directly or through any third party, including but not limited to translated or localized releases of the Product.
7. Confidentiality. Each Party (the "Receiving Party") agrees to secure and protect the Confidential Information of the other Party (the "Disclosing Party") in a manner consistent with the maintenance of the Disclosing Party's rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event less than reasonable efforts. The Receiving Party will ensure that its employees, agents and contractors use the Confidential Information of the Disclosing Party only for the purposes contemplated by this Agreement. "Confidential Information" means information that a Disclosing Party considers to be confidential, including but not limited to business and technical information, marketing plans, sketches, drawings, models, inventions, apparatus, equipment, algorithms, research, designs, plans, methods, techniques, processes and know-how, patented, non-patented, trade secret and proprietary information, whether tangible or intangible and whether or not stored, compiled or memorialized physically, electronically, graphically or in writing. Confidential Information of AboutTime shall include, but not be limited to, any and all technical and non-technical information related to the Software or the Documentation. Confidential Information of the Customer shall include all information or documents originally created or provided by Customer (the "Customer Intellectual Property"). Confidential Information shall not include information which: (i) is or becomes generally known or available through no fault of the Receiving Party; (ii) is known and had been reduced to tangible form by the Receiving Party before the time of disclosure and is not subject to restriction; (iii) is lawfully obtained from a third party who has the right to make such disclosure; (iv) is released for publication in writing by the Disclosing Party; or (v) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the Receiving Party shall provide prompt written notice to the Disclosing Party prior to such disclosure, so that the Disclosing Party may seek a protective order or other appropriate remedy.
8. Limited Warranty Disclaimer and Limitations of Liability.
(a) Inherent Risks. The use of the Software, as with any software product, carries inherent risks that can be mitigated by careful preparation, proper use and effectively backing up critical data. Customer acknowledges that each software configuration is unique and that using the Software with other software, including accounting software programs may cause such programs to crash, lose data or otherwise not work properly. Customer takes full responsibility for all risks associated with the interaction of the Software with any other software or hardware to which the Customer elects to connect the Software. Customer agrees to be fully responsible for backing up Customer Data used in the AboutTime Software on a regular basis. AboutTime shall have no responsibility for the accuracy, quality, integrity, reliability, or appropriateness of Customer Data and AboutTime shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Customer Data. Customer acknowledges that use of any Customer Data generated, obtained or acquired through the use of the Products is at Customer's sole risk and discretion. AboutTime and its licensors are not liable or responsible for any results generated using Customer Data. The vendors of accounting programs with which the Software is integrated may update, modify or change their accounting programs at any time without warning to Customer or AboutTime. Each Customer has unique business needs that are dependent upon the accounting, business and employment processes the Customer. A solution that may be effective for most Customers may not be effective for a given Customer. Customer acknowledges that Customer is responsible for determining whether the solutions provided by the Software adequately meet its unique needs. Customer has seen as many demonstrations of the Software as Customer considers sufficient to judge the adequacy of the Software for its unique needs.
(b) Limited Warranty Disclaimer. ABOUTTIME AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE PRODUCT WILL BE SECURE, UNITERUPTED OR ERROR FREE OR (ii) THE PRODUCT WILL MEET CUSTOMER'S OR END USER'S REQUIREMENTS. THE PRODUCT IS PROVIDED TO CUSTOMER AND END USER "AS-IS". ABOUTTIME DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT, COMPLETENESS, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
(c) Limitations of Liability. In no event shall AboutTime be liable for any exemplary, special, incidental, indirect or consequential damages (including loss of profit, revenue, or data), arising out of or relating to this Agreement even if it has been advised of the possibility of such potential loss or damages, or for any interruption, inaccuracy, error or omission, regardless of cause, in the Product. Without limiting the generality of the foregoing, in no event shall AboutTime be liable for any damages of any kind that arise out of (i) Customer's purchase of equipment to use with the Software; (ii) Customer's purchase of software to use with the Software; and (iii) Customer's investment of employee and management time to implement the Software and for its employees to participate in training regarding use the Software. FURTHER, IN NO EVENT SHALL ABOUTTIME AND ITS LICENSORS BE HELD LIABLE UNDER THIS AGREEMENT, WHETHER IN TORT OR CONTRACT, FOR MORE THAN THE AMOUNT PAID BY CUSTOMER HEREUNDER AS LICENSE FEES DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(d) Additional Customer Rights May Exist and Exclusions or Limitations May Not Apply. THIS AGREEMENT PROVIDES CUSTOMER WITH SPECIFIED LEGAL RIGHTS AND CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM JUSRISDUCTION TO JUSRISDICTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE WARRANTY, DISCLAIMER AND LIMITATIONS OF LIABILITY OR EXCLUSIONS MAY NOT APPLY.
9. Indemnification and Remedies.
(a) By AboutTime. AboutTime will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim that the Product infringes or misappropriates any United States patent, copyright, trade secret or trademark of that third party.
(b) Exceptions. The obligations set forth in Section 9(a) do not apply if the third party claim is caused by, or results from: (a) any third-party products, or products not developed by AboutTime, whether or not provided hereunder; (b) Customer's combination or use of the Products with software, services, or products developed by Customer or third parties, if the claim would have been avoided by the non-combined or independent use of the Products; (c) modification of the Products by anyone other than AboutTime if the third party claim would have been avoided by use of the unmodified Products; (d) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (e) Customer's use of the Products in a manner not in accordance with this Agreement or the Documentation; or (f) use of other than AboutTime's most current release of the Products if the third party claim would have been avoided by use of the most current release.
(c) By Customer. Customer will indemnify, defend, and hold harmless AboutTime from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim made against AboutTime regarding infringement or misappropriation of any patent, copyright, trade secret or trademark of that third party based on: (a) Customer Data; or (b) conduct by Customer as described in Section 9(b).
(d) General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense.
(e) Remedy. If any Software becomes, or in AboutTime's opinion is likely to become, the subject of a claim of infringement, AboutTime will, at its option: (i) prodcue for Customer the right to continue using the Software; (ii) replace the Software with a non-infringing product substantially complying with the Software's specifications and functionality; (iii) modify the Software so it becomes non-infringing and performs in a substantially similar manner to the original Software; or (iv) upon failure of the foregoing, Customer will cease any infringing use of the Software and AboutTime will refund that portion of the license fees paid to AboutTime which can reasonably be attributed to the infringing portion of the Software, less a reasonable allowance for use. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
(f) Further Indemnification By Customer. Customer will indemnify, defend, and hold harmless AboutTime from and against all liabilities, damages, and costs (including settlement and reasonable attorneys' fees; the "Costs") arising out of (i) Customer's breach of Section 11 (Compliance with Laws and Export Restrictions) (ii) use of the Software by a Subcontractor or any other End User who is not an employee of Customer; and (iii) use of the Software by an End User who is an employee of Customer unless the Costs result from AboutTime's gross negligence or intentional misconduct.
10. Nonsolicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, neither party shall solicit for employment or hire employees of the other party and its subcontractors who have been involved in rendering or receiving services under this Agreement; provided this restriction shall not prohibit either party from conducting general solicitations in newspapers or on the internet in connection with its hiring.
11. Compliance with Laws and Export Restrictions. Customer shall ensure that all End Users comply with all applicable laws and regulations which may govern access to and use of the Products by Customer and its Authorized Users, including without limitation any compliance with any United States and foreign laws and regulations relating to export and import control and access, use, disclosure, storage or transmission of any personal or other data in connection with use of the Products by Customer and its Authorized Users. Customer agrees that it will not export or re-export the Products without written approval of AboutTime and without complying with all U.S. export restrictions.
12. Audit Rights. AboutTime, or an AboutTime designated agent, (the "Auditor") may upon five days written notice to Customer, inspect any of Customer's facilities where the Software is used and audit records for the purpose of confirming Customer's compliance with the exercise of the licenses granted in Section 2. All such audits will be conducted during reasonable business hours and in a manner that does not unreasonably interfere with Customer's business activities. The audit shall be performed at AboutTime's sole expense; provided however, that if, as a result of the audit, it is determined that Customer is out of compliance by five percent (5%) with respect to its obligations under this Agreement and that, as a result, Customer owes AboutTime additional fees, then Customer shall bear the reasonable cost of AboutTime's audit and pay all past-due fees, in addition to such other remedies as AboutTime may have under this Agreement, including termination of this Agreement.
13. Modifications. AboutTime may change or modify these Terms and Conditions in its sole discretion at any time. Any such change will be effective immediately upon posting by AboutTime and/or actual notification to Customer; provided, however, that changes to the grant of license in Section 2 or the term provisions of Section 14 may only be modified with the prior written consent of the Customer. AboutTime will take reasonable steps to notify Customer of material changes. Any of the following actions by the Customer will be considered acceptance by the Customer of and agreement to any modifications (other than to Sections 2 and 14 hereof) that are posted prior to such actions: (a) enrollment of a new End User; (b) making any payment to AboutTime; (c) signing any agreement with AboutTime, including a new Order Form or a Statement of Work; or (d) continued use of the Software after actual notice of the change. Other than as provide above, this Agreement may be modified only by a writing executed by an authorized representative of AboutTime. Customer shall have no authority to modify or add terms to this Agreement by a purchase order. Pre-printed terms and conditions on any purchase order issued by Customer hereunder will have no force and effect.
14. Term and Termination. This Agreement shall commence on the Effective Date and shall continue in perpetuity, unless terminated in accordance with the termination procedures set forth herein. Either Party may terminate this Agreement upon written notice to the other party if the other party materially breaches any obligation and fails to cure such breach within thirty (30) days after receiving notice. Either Party shall also have the right to terminate this Agreement upon notice to the other if the other Party: (i) terminates or ceases operating its business in the normal course; (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority; or (iv) has wound up liquidated, voluntarily or otherwise, and in the case of (ii) and (iii), above, if the condition has not been cured within sixty (60) days. Upon the termination or expiration of this Agreement, or upon a request by either party hereto: (i) all outstanding payments to the other party shall promptly be paid in full; (ii) all Confidential Information of one party in the possession of the other shall be promptly returned (or, at the other Party's written instruction, destroyed). Upon termination or cancellation of this Agreement, Customer agrees to return or destroy/disable the Products so that it is no longer usable and to make no further use of the Product. The restrictions in the following Sections shall survive the termination or expiration of this Agreement: 5~12, 15 and 16.
15. Publicity and Press Releases. AboutTime may advertise orally and in writing that Customer is a client of AboutTime under the trademarks and service marks of Customer. Nothing herein shall grant either Party any right, title or interest in the other Party's trademarks or service marks. With Customer's consent AboutTime shall be permitted to issue a press/news release describing this Agreement and the Parties' relationship.
16. General Terms.
(a) Assignment. Neither this Agreement nor any rights granted hereunder may be assigned, or otherwise transferred by Customer, and any such attempted transfer shall be void without the advance written consent of AboutTime. AboutTime may assign this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties' permitted successors and assigns.
(b) Dispute Resolution. In the event any dispute, claim, question or difference between the Parties (each, a "Dispute") arises with respect to the Agreement or the Parties' performance, enforcement, breach or termination thereof, the Parties shall use their best efforts to settle the Dispute by utilizing the following procedures: (i) before bringing a lawsuit of any kind in connection with a Dispute, a Party (the "Complainant") must first give notice to the other Party (the "Recipient") of a Dispute (the "Dispute Notice") which must be in writing, set out in reasonable detail the basis for the Dispute and be in the DISPUTE NOTICE FORM available on AboutTime's website or provided upon request; (ii) the Recipient has thirty (30) in which to cure the alleged breach (the "Cure Period"); (iii) if the alleged breach is not cured during the Cure Period, then each Party shall designate a member of senior management (the "Designated Representatives") with full authority to resolve the Dispute and the Designated Representatives shall negotiate in good faith to resolve the Dispute for thirty (30) days (the "Negotiation Period"); (iv) if the Designated Representatives fail to resolve the Dispute during the Negotiation Period, the Parties shall submit the Dispute to mediation. Mediation shall be held in Salt Lake City, Utah before a neutral mediator agreed upon by the Parties. To the extent that the Parties cannot agree upon a mediator, each Party shall name a mediator and these two mediators shall choose a third mediator. Decisions will be made by a majority of the three mediators hearing the Dispute. The Parties shall bear their own costs and fees, and shall each pay one-half (1/2) of any mediator's fees. If within thirty (30) days after initiating mediation, the Parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.
(c) Governing Law; Submission to Jurisdiction. In interpreting the terms of this Agreement, the Parties agree that the laws of the State of Utah shall be applicable, without giving effect to the conflicts of law provisions. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement. Each Party (i) agrees that any action arising out of or in connection with a Dispute or any other claim, cause of action, defense or disagreement of any kind between the Parties shall be brought solely in courts of the State of Utah, in Salt Lake City, or the United States District Court for the District of Utah and only after the dispute resolution provisions of Section 16(b) above have been exhausted by the Party bringing the suit; and (ii) hereby irrevocably consents to the sole and exclusive venue and jurisdiction of the courts of the State of Utah and the United States District Court for the District of Utah. . In the event any Dispute is resolved within the courts of law, the prevailing party shall be entitled to reasonable attorneys's fees and associated costs.
(d) Contractual Statute of Limitations. Each Party must file any action arising directly or indirectly under this Agreement no later than one year and three months after the claim has accrued. Any Dispute Notice given pursuant to Section 16(b) must be given within one year that the alleged claim underlying the Dispute has accrued. Each Party waives the right to file an action arising directly or indirectly under this Agreement under any longer statute of limitations.
(e) Waiver. A waiver of any breach of this Agreement shall not constitute a waiver of any other breach or covenant of the Agreement. A waiver shall not be effective unless made in writing.
(f) Force Majeure. Neither Party shall be liable for any delay or failure due to acts of God, natural disaster, changes in government policy/law, acts or omissions of vendors or suppliers, disruptions caused by the Internet or service providers, or other occurrences which are beyond such Party's reasonable control.
(g) Review by Counsel. Each Party has had adequate opportunity and reasonable time to review this Agreement and has had the opportunity to be represented and advised by independent legal counsel of its own choosing. No provision of this Agreement shall be interpreted for or against either Party on the basis that such Party was the draftsman of such provision. No presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship of any provision of this Agreement.
(h) Entire Agreement. This Agreement, including these Terms and Conditions, the EULA and any attachments hereto contain the full understanding between the Parties and supersedes all prior representations or agreements, whether oral or written. This Agreement may be signed in counterparts and will constitute a single Agreement.
17. WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRAIL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS EULA AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
TO THE CUSTOMER SOFTWARE LICENSE AGREEMENT
END USER LICENSE AGREEMENT
IMPORTANT: READ CAREFULLY: This End User License Agreement (this "EULA") is a legal agreement between you, the End User ("End User" or "you"), and AboutTime LLC ("AboutTime") governing your use of the technology, software and data belonging to AboutTime, its vendors and licensors that is provided under this EULA, including the AboutTime Mobile Business Management Software (the "Product"). By using the Product, you are agreeing to be bound by the terms of this EULA. If you do not agree to these terms, do not use the Product.
1. Software License Agreement. You only have a right to use this Product during the term of a certain software license agreement (the "Software License Agreement") between AboutTime and your employer (or other entity who has provide you access to the software and who is the "Customer" defined in the Software License Agreement). All capitalized terms not defined herein have the meanings assigned to them in the Software License Agreement.
The Software License Agreement, including the Terms and Conditions, are hereby incorporated into this EULA and you agree to be bound by all of the provisions of each of them. Instructions for accessing the most recent and currently effective version of the Terms and Conditions are provided in the online version of the EULA.
YOU AGREE NOT TO USE OR EXPLOIT THE PRODUCT AND SOFTWARE EXCEPT AS EXPRESSLY PERMITTED IN THE SOFTWARE LICENSE AGREEMENT.
YOU ACKNOWLEDGE THAT THE PRODUCT IS PROVIDED "AS-IS".
2. Termination. Your right to use the Product will terminate if the Software License Agreement with the Customer terminates or if your employment with the Customer terminates. You also agree that your non-exclusive license to use the Product will terminate if you violate any provision of the EULA or the Software License Agreement. If your license terminates, you agree to cease any and all use of the Product. AboutTime, its vendors and licensors reserve all rights in the Product, including all ownership rights. You agree that each vendor and licensor of AboutTime may enforce its rights under this EULA directly in its own name.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA AND THE SOFTWARE LICENSE AGREEMENT, INCLUDING THE TERMS AND CONDITIONS, AND AGREE TO BE BOUND BY THEIR TERMS. YOU FURTHER AGREE THAT THIS EULA, TOGETHER WITH THE SOFTWARE LICENSE AGREEMENT, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND ABOUTTIME AND SUPERCEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS EULA. YOU FURTHER REPRESENT THAT YOU HAVE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS OF THIS EULA AND TO THE SOFTWARE LICENSE AGREEMENT OR THAT SOMEONE WITH SUCH AUTHORITY HAS INDICATED ACCEPTANCE OF THIS EULA ON BEHALF OF THE CUSTOMER.
3. Subcontractors. If you are an End User, but are not an employee of the Customer, the following provisions also apply to you:
You represent and warrant to AboutTime that your employer is a subcontractor or vendor of the Customer (the "Subcontractor").
You represent and warrant to AboutTime that the Subcontractor has agreed to the terms of this EULA and you have authority to agree to this EULA on behalf of the Subcontractor.
You agree to notify AboutTime that you are not an employee of the Customer and to accurately provide the name and contact information of your employer.
4. WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRAIL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS EULA AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.End of the End User License Agreement.
TO THE CUSTOMER SOFTWARE LICENSE AGREEMENT
CONSULTING SERVICES TERMS AND CONDITIONS
1. Consulting Services. Following execution of the Software License Agreement, AboutTime may perform mutually agreed upon customization services as detailed in an AboutTime Statement of Work ("Services"). These Services may include, without limitation, the interfacing of certain aspects of the Software to certain other software of Customer. The Services shall be provided to Customer pursuant to the Software License Agreement (including these Consulting Services Terms and Conditions) and any consulting services agreement executed by the Parties.
2. Time of Performance. On-site consulting activities are scheduled between 8:00 a.m. and 5:00 p.m.; however time must be allotted within these business hours for setup before and wrap-up after consulting meetings. AboutTime defines its business day as eight (8) hours. Work beyond these hours will be billed at a rate of two-hundred fifty dollars ($250.00) per hour. Customer agrees to provide AboutTime with timely access to resource information and staff members as necessary and appropriate for AboutTime to perform the Services.
3. Cancellation. Customer's cancellation or rescheduling of this work less than fourteen (14) days prior to the dates agreed upon shall be subject to a fee equal to all incurred costs and an administrative fee of five percent (5%) of the agreement total amount.
4. Services and Fees. AboutTime shall perform the services specified in this Agreement. In consideration for the Services to be performed for Customer by AboutTime, Customer agrees to pay, promptly and fully, the fees described. Unless expressly identified as included in the Statement of Work, travel expenses are not included in this Agreement and Customer will reimburse AboutTime for such expenses in accordance with Section 7 of this Attachment B.
5. Resource Reservation. To ensure the availability of resources Customer's projects, prior to the commencement of work, Customer agrees to provide AboutTime with a non-refundable deposit equal to twenty percent (20%) of the total estimated fee for each project involving the Services.
6. Invoices. Billing of Services will proceed upon completion of work or bi-weekly, whichever is sooner. Payment is due upon receipt of invoice. If charges are not paid at the end of the thirty (30) days, Customer shall pay to AboutTime interest on the unpaid balance computed on a daily basis from the date of the statement at the lower of one and one-half percent (1.5%) per month or the maximum allowed by applicable law. All interest shall be immediately due and payable.
7. Expenses. Customer agrees on demand to pay to AboutTime, or reimburse AboutTime for, the expenses incurred by AboutTime in the performance of the Services. Such expenses, however identified, shall include all reasonable expenses for preparation, travel expenses, airfare, ground transportation, lodging, meals, phone, parking, reproduction, binding, and incidentals.
8. Title. AboutTime shall have and retain all right, title and interest, including without limitation, all intellectual property rights, in and to the product generated pursuant to the Statement of Work or otherwise resulting from the Services (the "Work Product"). In the event Customer acquires any rights, title or interest in or to the Work Product resulting from the Services, Customer assigns and agrees to assign all such right, title or interest to AboutTime. AboutTime grants Customer a license to use the Work Product pursuant to the terms of the Software License Agreement for the term thereof. Information or documents originally created or provided by Customer to AboutTime ("Customer Intellectual Property") for Work Product creation shall remain the sole property of the Customer.
9. Warranties for Consulting Services. AboutTime agrees to perform the Services in a professional manner and as otherwise set forth in this Agreement. Except as expressly provided herein, ABOUTTIME DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
10. Liability for Consulting Services. In addition to any liability limitations provided in the Software Licensing Agreement, if AboutTime is unable to perform the consulting services defined, Customer shall be limited in its damages to a refund of the money paid for the unperformed consulting services. Customer expressly agrees that neither AboutTime nor its personnel shall be liable to the Customer for any loss, liability, damage, cost or expense of Customer (including lost profit or any other direct, indirect or consequential damages) resulting from, or attributable to, performance of the Services.
TO THE CUSTOMER SOFTWARE LICENSE AGREEMENT
MAINTENANCE AND TECHNICAL SUPPORT TERMS AND CONDITIONS
Capitalized terms not defined herein have the meanings assigned to them in the Terms and Conditions of the Software License Agreement to which these Maintenance Terms and Conditions are attached.
1. Maintenance Services. AboutTime provides certain maintenance and technical support services (the “Maintenance Services”) to Customers which have requested, and made timely payment for, such services.
2. Fees. Customers may subscribe for Maintenance Services (becoming “Maintenance Customers”) by paying the annual maintenance fee (the “Maintenance Fee”). The Maintenance Fee for each successive one-year term of Maintenance Services (each, a “Maintenance Term”) shall be due and payable no later than the last day of the then current Term. Customer may be required to pay an additional fee if Maintenance Services lapse and are subsequently resumed. Customers purchasing additional licenses or modules during the current Maintenance Term may be required to pay additional Maintenance Fees for the additional licenses or modules. The amount of the Maintenance Fee for the initial Maintenance Term will be set forth in the Order Form. The amount of the Maintenance Fee for any Maintenance Term other than the initial Maintenance Term will be the amount set out in a renewal letter or notice (a “Renewal Letter”).
3. Term. The Maintenance Term shall be the twelve (12) month period from the Effective Date to the first anniversary of the Effective Date and any subsequent twelve (12) month period beginning on an anniversary of the Effective Date. The Maintenance Term will be stated in the Renewal Letter. The Maintenance Term will automatically terminate: (i) upon termination of the Software License Agreement; or (ii) in the event Customer fails to pay the then current Maintenance Fee when due.
4. Maintenance Services. Maintenance Services shall include the following:
(a) Telephone and E-mail Support. AboutTime will provide telephone and e-mail support during AboutTime’s normal business hours, from 8:00 a.m. through 5:00 p.m., Monday through Friday, Mountain Standard Time, excluding AboutTime holidays. Such support will include the opportunity to consult with a member of the AboutTime technical support staff that will assist the Customer with the Software capabilities, functionality and characteristics and provide basic problem resolution assistance as required. This assistance does not cover training or consulting services.
(b) Software Releases. AboutTime will make available to Customer and install such point releases, updates, upgrades, Service Packs (minor patch releases resolving critical bugs) and/or enhancements to the Software which AboutTime makes generally available to its Maintenance Customers at no additional charge when available, provided Customer has made available to AboutTime all access details required to carry out such installations. In the event that AboutTime’s consulting services are required, the Customer will be billed for such services at the standard rates then in effect. As AboutTime makes available software releases, AboutTime reserves the right, at its sole discretion, to discontinue or modify the terms and conditions of support for non-current releases and versions.
(c) Excluded Services. Excluded from Maintenance Services are services resulting from misuse or modification of the Software by Customer, failure or interruption of any electric power, or any accident or other cause external to the Software, including, but not limited to problems or malfunctions related to Customer’s network, database, third party software products, and/or computer configurations or Customer’s hardware. Such excluded services, and additional consulting services such as training, setup and technical integration may be contracted separately.
5. LIMITED WARRANTY.
ALL SOFTWARE PROVIDED UNDER THE MAINTENANCE AGREEMENT IS PROVIDED “AS IS” AND IS SUBJECT TO THE ALL THE DISCLAIMERS AND PROVISIONS SET FORTH IN SECTION 8 OF THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT.
6. LIMITATION OF LIABILITY.
IN ADDITION TO THE LIABILITY LIMITATIONS PROVIDED IN THE SOFTWARE LICENSING AGREEMENT, THE MAXIMUM LIABILITY THAT ABOUTTIME WILL HAVE TO CUSTOMER WITH RESPECT TO THE MAINTENANCE SERVICES WILL BE TO REFUND THE MAINTENANCE FEES FOR THE CURRENT MAINTENANCE TERM PRORATED FOR THE NUMBER OF MONTHS REMAINING IN THE MAINTENANCE TERM.
Customer expressly agrees that neither AboutTime nor its personnel shall be liable to the Customer for any loss, liability, damage, cost or expense of Customer (including lost profit or any other direct, indirect or consequential damages) resulting from, or attributable to, performance of the Maintenance Services
End of Maintenance Terms and Conditions.