(Last Modified: May 31, 2017. Effective from: June 01, 2017)
SOFTWARE AND SERVICES AGREEMENT
IMPORTANT-READ CAREFULLY: This software as a service agreement (“Agreement”) is a legally binding contract between you (“Customer”) and TimeCaptis Inc., having a principal place of business at 702 Cromwell Drive, Greenville, NC 27858 (“Time Captis”) for the services that accompany this Agreement. Read this Agreement to the end and make sure you understand all of the terms and conditions.
You must read and accept this Agreement prior to receiving services provided by Time Captis which includes using the Time Captis software. If you agree to the terms and conditions to this Agreement, you may proceed to registration by clicking “Accept.” Your registration with Time Captis tells us that you have read the Agreement in its entirety and accept all of its terms, conditions, disclaimers, and limitations. If you do not accept any term or condition as articulated in this Agreement, you may cancel your account prior to receiving any services or using the Time Captis software. BY RECEIVING SERVICES OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT RECEIVE ANY SERVICES OR USE THE SOFTWARE.
“Administrator User” means each Customer employee designated by Customer to serve as a technical administrator of the SaaS Services on Customer’s behalf.
“Customer Content” means all data and materials provided by Customer to Time Captis for use in connection with the SaaS Services, including, without limitation, customer information, applications, and data files.
“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Time Captis to Customer regarding the use or operation of the SaaS Services.
“Effective Date” is the date on which the Customer’s subscription to the services starts. The beginning of the contract term.
“Host” means the computer equipment on which the Software is installed, which is owned and operated by Time Captis or its subcontractors.
“Software” means the object code version of any software including the Time Captis software to which Customer is provided access, including any revisions or new versions.
“SaaS Services” refer to the specific Time Captis internet-accessible service that provides use of Time Captis’s accounting software that is hosted by Time Captis or its service provider and made available to Customer over a network on a term-use basis.
“Subscription Term” shall mean that period during which Customer will have on-line access and use of the Software through Time Captis’s SaaS Services.
2. SaaS SERVICES
2.1 During the Subscription Term, Customer will receive a nonexclusive, non-transferable right to access and use the SaaS services solely for your internal business operations subject to the terms of this Agreement. This use right is limited to use by the number of users for which Customer has paid.
2.2 Customer acknowledges that this Agreement is a services agreement and Time Captis will not be delivering copies of the Software to Customer as part of the SaaS Services.
3.1 Customer shall not, and shall not permit anyone to:
(i) make unauthorized copies of the Software or any part thereof;
(ii) receive services from Time Captis or use the Software without a license or beyond the scope of your license;
(iii) permit third parties to use your license and/or access the Software through your license;
(iv) reverse engineering, decompiling, or disassembling the Software or any source code related thereto;
(v) upload or transmit any material through the Customer Content that contains any virus, mal-ware, spy-ware, worm, Trojan, loggers, recorders, adware, bugs, or any other software object or code intended to cause harm to a computer or network system;
(vi) upload or transmit any material through the Customer Content that contains any offensive, prurient, harmful, defamatory, or objectionable content as determined by Time Captis;
(vii) transmit solicitations or advertise materials, to include spam or chain email;
(viii) provide false or misleading information about yourself or any organization with which you may or may not be affiliated;
(ix) copy or republish the Software;
(x) modify or create derivative works based upon the Software, SaaS Services or Documentation;
(xi) access the Software or use the Documentation in order to build a similar product or competitive product;
(xii) engage in public defamation or disparagement of Time Captis;
(xiii) undertake any commercial action including selling, renting, or leasing the Software; and
(xiv) undertake any action that is not expressly authorized in this Agreement.
Violation of this paragraph shall result in the immediate, permanent termination of your account.
4. CUSTOMER RESPONSIBILITIES
4.1 Assistance. Customer shall provide commercially reasonable information and assistance to Time Captis to enable Time Captis to deliver the SaaS Services. Upon request from Time Captis, Customer shall promptly deliver Customer Content to Time Captis in an electronic file format specified and accessible by Time Captis. Customer acknowledges that Time Captis’s ability to deliver the SaaS services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Time Captis exercises no control over the content of the information transmitted by Customer or the users through the SaaS Services.
4.3 Unauthorized Use; False Information. Customer shall:
(i) notify Time Captis immediately of any unauthorized use of any password or user id or any other known or suspected breach of security;
(ii) report to Time Captis immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer; and
(iii) not provide false identity information to gain access to or use the SaaS Services.
4.4 License from Customer. Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to Time Captis a limited, non-exclusive and non-transferable license to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
4.5 Customer Input. Time Captis shall have a royalty-free, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer relating to the operation of the SaaS Services.
5.1 Termination. Time Captis may immediately terminate Customer’s rights under this Agreement without notice if Customer fails to comply with any term or condition.
5.2 Modifications. Time Captis’s rights set forth by this Agreement shall not be affected by a termination. Time Captis reserves the right to alter or add to the terms of this Agreement at any time. Time Captis also reserves the right to modify, suspend, or impose new terms on the services upon notice by any reasonable means, including sending Customer an email notification or posting such changes in the Time Captis SaaS-based portal.
5.3 Effect of Termination. Upon termination of this Agreement, Time Captis shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate. If Time Captis terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Time Captis all amounts then due and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Time Captis, then Time Captis shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.
6. INTELLECTUAL PROPERTY
6.1 Time Captis’s disclosure of the information, including the Software and SaaS Services, shall not be construed as a grant of any license or any other rights by Time Captis to Customer or a grant of any rights under any intellectual property right which now or hereafter may be owned or acquired by Time Captis or under which Time Captis may now or hereafter have rights to.
6.2 To the extent Customer conceives of, develops, modifies, or otherwise creates any intellectual property as a result of its interactions with Software or SaaS Services, Customer agrees that Time Captis shall have sole ownership in that intellectual property. Customer further agrees to execute any applicable assignments in favor of Time Captis for that intellectual property.
6.3 Customer retains ownership and intellectual property rights in and to its Customer Content.
6.4 Customer shall not upload, post, reproduce or distribute any information obtained through this Agreement without first obtaining the permission of Time Captis.
7.1 No Warranties. To the extent permitted by law, Time Captis disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the SaaS services. These services are provided on an AS-IS basis.
7.2 Limitation of Liability. Time Captis is not liable for any loss or damage arising as a result of Customer’s use of the SaaS Services. To the extent allowed by law, Time Captis is not liable for any indirect, special, incidental, or consequential damages, including, without limitation, damages for loss of profits, loss of information, corruption or theft of data, viruses, spyware, or other pecuniary loss. Under no circumstances shall Time Captis’s liability to Customer exceed the amount actually paid by Customer to Time Captis. The limitations set forth are fundamental elements of the basis of the bargain between Customer and Time Captis.
7.3 Disclaimer of Harm from Public Internet and Wireless Access. Public Internet stations and Internet Protocol addresses, as well as broadband wireless Internet access, are accompanied by special risks. Even with encryption technology, Customer’s computer and web-based transmissions may still be subject to attacks from malicious users. By electing to use a public Internet station, a public Internet Protocol address, or wireless Internet services, Customer assumes all risk associated therewith. Customer agrees to hold Time Captis harmless for any harm suffered due to another party monitoring the communications or transmissions.
7.4 Disclaimer of System Security. Time Captis has taken commercially reasonable steps to provide a secure system for Customer use of the SaaS Services. Such reasonable steps include but are not limited to limitations imposed via network, system, and computer infrastructure. Customer acknowledges that Time Captis has taken commercially reasonable steps to provide a secure system and that Time Captis does not guarantee that communications or transmissions or stored information shall be secure from monitoring or tampering. Customer further acknowledges that there are risks inherent in Internet connectivity that could result in the loss of privacy, confidential information, and property, and Customer agrees to assume all risk related thereto.
7.4 No Support for Third Party Websites. To the extent Time Captis provides Customer with hyperlinks to third party websites, such hyperlinks are for reference purposes only. Time Captis has no control over such sites, their content, or their resources. Customer acknowledges that Time Captis is not responsible for, does not endorse, and is not liable for any materials available from third party websites, or any damage or loss related thereto.
8.1 Arbitration. Any claim or controversy arising out of or relating to this Agreement shall be settled by legally binding arbitration in accordance with the American Arbitration Association’s Commercial Arbitration. All arbitration hearings and all meetings pursuant to this section shall be held in Wake County, North Carolina. The parties agree to the appointment of a single arbitrator. If the parties cannot agree on the identity of the arbitrator, the arbitrating body shall chose him or her. The arbitrator will determine the place or places where meetings are to be held within Wake County. The arbitrator’s decision must uphold the terms and conditions of this Agreement, and the decision of the arbitrator shall bind both parties. The parties submit to personal jurisdiction of the Superior Court of Wake County, North Carolina and the Federal District Court for the Eastern District of North Carolina for confirming any award and the entry of judgment. In the event Time Captis takes legal action against Customer, whether via a lawsuit or arbitration proceeding, regarding violation of this Agreement, Time Captis will be entitled to recover from Customer and Customer agrees to pay all reasonable attorneys fees and costs in such action, in addition to any other relief to which Time Captis may be entitled.
8.2 The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes decided through arbitration. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by and interpreted under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq., to include the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
8.3 Limitation on Action. Unless otherwise mandated by law, any action or proceeding by Customer to enforce any right or claim any way relating to this Agreement must be commenced within one year after the cause of action accrues. Failure to commence an action or proceeding within one year of accrual shall constitute a voluntary waiver of Customer’s claim(s) or cause(s) of action.
8.4 Choice of Law. This Agreement shall be construed under the laws of the State of North Carolina and the federal laws of the United States.
8.5 Indemnification. Customer agrees to indemnify and hold harmless Time Captis in any legal dispute, to include all claims, prosecutions, and lawsuits, arising from any action Customer undertakes that is prohibited under this Agreement. Such indemnification shall include, without limitation, Time Captis’s attorneys’ fees arising or resulting from any prohibited use of the SaaS services.
9. GENERAL PROVISIONS
9.1 Complete Agreement. This Agreement is a complete statement of the agreement between Customer and Time Captis. This Agreement sets forth the liability of Time Captis and Customer’s exclusive remedy with respect to the services and Software.
9.2 Waiver. Waiver by Time Captis of a violation of any term or condition of this Agreement is not a waiver of future compliance, and that provision, as well as all other provisions of this Agreement, remain in full force and effect.
9.3 Force majeure. Time Captis shall not be held responsible if providing of the SaaS Services is interrupted or delayed or if Customer Content therein is lost or corrupted by acts of God, floods, fires, strikes, wars or criminal or terrorist actions, or, without limiting the foregoing, by any other cause not within Time Captis’s control and which Time Captis is unable to prevent by the exercise of reasonable diligence.
9.4 Survival. If any provision of this Agreement is invalid or unenforceable under applicable law, then that provision shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.