Terms Of Service
TIMEWELSCHEDULED INCTM – Terms Of Service
This agreement (“Agreement”) is between __________. (Company Name) using the TIMEWELSCHEDULED INC service identified below (the “Customer”), and TIMEWELSCHEDULED INC TM (“TIMEWELSCHEDULED INC”), for the software as a service product (the “Service”).
- License: TIMEWELSCHEDULED INC hereby grants to the Customer a non-exclusive, non-transferable license to use the Service on the terms contained herein. The Customer will not: (a) except to sublicense to its direct franchise operations – reproduce, sell, rent, assign, lease, sublicense, distribute, serve third parties, market or commercially exploit, in any way, except as provided in this Agreement the Service or any component thereof; (b) use the Service for anything other than for its own internal use; (c) use the Service except as authorized herein; (c) remove, modify or obscure any watermark or any copyright, trademark or other proprietary rights notices that appear on the Service; or (d) use the Service for purposes proscribed by TIMEWELSCHEDULED INC from time to time, including without limitation: illegal or inappropriate purposes; sending spam; perpetration of security breaches; hacking; privacy breaches; fraudulent activity; distribution of viruses or other harmful code; transmission, distribution or storage of any material protected by copyright, trade- mark, trade secret or other intellectual property right without proper authorization or rights, or material that is infringing, obscene, defamatory, fraudulent, untruthful, disrespectful, discriminatory, or abusive; any unauthorized access, alteration, theft, corruption or destruction of files, data, transmission facilities or equipment; or to interfere with any other person’s use and enjoyment of Nerd’s services.
- Fees: Customer will pay fees as agreed on service sign-up, plus applicable taxes. TIMEWELSCHEDULED INC may change any fees payable under this Agreement, after the first 18 months of this contract, by giving at least 60 days written notice in advance. Such notice will include a commercial justification for the price increase. Late payments will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%).
- Authentication: The Service is transmitted with encryption of TLS/SSL via the internet and requires single factor authentication to access. It is the Customer’s responsibility to use authentication effectively, such as by using effective passwords that are not easily guessed or discoverable.
- Ownership: All patent, copyright, trade-mark, trade secret, source code, internet domain, and other intellectual and intangible property rights relating to the Service are the sole and exclusive property of TIMEWELSCHEDULED INC. TIMEWELSCHEDULED INC acquires no ownership or use rights to any information placed on the Service by the Customer.
- Customer Data: Customer data contained in the Service is stored in Microsoft supported SQL database formats. The Customer may retrieve and download its own on-demand copy of such data at any time.
- Confidentiality: Confidential Information is all information of either party that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know- how and information relating to technology, business plans, assets, liabilities, finances, or any information placed on the Service by the Customer), that is disclosed by a party to the other or that is otherwise learned by the other in the course of its discussions or business dealings with the other.
Confidential Information shall not include (except for any personally identifiable information about an individual that relevant privacy legislation or policies do not allow to be disclosed): (a) any Confidential Information that is in the public domain at the time of its disclosure or which thereafter enters the public domain through no action of the receiving party, direct or indirect, intentional or unintentional; (b) any Confidential Information which the receiving party can demonstrate was in its possession or known to it prior to its receipt, directly or indirectly, from the other party; (c) any Confidential Information that is disclosed to the receiving party by another party not in violation of the rights of the other party or any other person or entity; and (d) any Confidential Information which is either compelled by law or by the order of a court of competent jurisdiction to be disclosed.
The parties shall (i) not use Confidential Information for any purpose other than contemplated by this Agreement; (ii) not disclose Confidential Information to anyone without the prior written authorization of the disclosing party, during the term of this Agreement or at any time thereafter; (iii) handle, preserve and protect Confidential Information with at least the same degree of care that it affords or would afford to its own Confidential Information, including taking all reasonable efforts to avoid disclosure of such Confidential Information to any third party, at any time; (iv) disclose Confidential Information only to its employees or subcontractors who require such information in order to perform the party’s obligations with the other, and are under confidentiality obligations.
- Training and Support: Basic training material for end users of the Service is available online. Additional training is available for a fee. Support consists of online self-service help, which the Customer will make reasonable efforts to utilize first, and if needed, e-mail and telephone support as outlined on the website. Support is not provided for issues arising from any hardware or software owned or controlled by the Customer.
- Termination: This Agreement is effective until terminated. TIMEWELSCHEDULED INC may terminate this Agreement or suspend the provision of Service if not cured within 14 days after notice upon the occurrence of any of the following: (a) Customer fails to pay fees when due; (b) Customer fails to comply with any provision of this Agreement or uses the Service beyond the scope described herein; (c) Customer attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of TIMEWELSCHEDULED INC; or (d) Customer files an assignment in bankruptcy or is or becomes bankrupt and/or insolvent, upon the appointment of a receiver for all or substantially all of the property or assets of the Customer, upon the making of any assignment or attempted assignment for the benefit of creditors or on the institution by Customer of any act or proceeding for the winding up of its business. TIMEWELSCHEDULED INC may terminate this Agreement by giving at least twelve months’ notice if it decides to stop offering the Service to customers generally, or to customers in certain jurisdictions. The Customer may terminate this Agreement at any time by providing TIMEWELSCHEDULED INC with at least thirty days’ notice.
- Export Control: The Service may be subject to export or import regulations in various countries. Customer and TIMEWELSCHEDULED INC agree to comply and adhere to all such regulations.
- Service Levels: TIMEWELSCHEDULED INC may alter or improve the Service from time to time, provided functionality is not decreased. TIMEWELSCHEDULED INC will use commercially reasonable efforts to provide the Service on a 24 hour basis, subject to force majeure, and the service levels provided by any of its service providers.
- Limited Warranty: TIMEWELSCHEDULED INC will use reasonable efforts to enforce any service level and warranty obligations of its suppliers. Notwithstanding anything else contained in this Agreement, TIMEWELSCHEDULED INC warranties and liabilities for any matters arising from Service or software provided by its third party providers shall not exceed those provided to TIMEWELSCHEDULED INC from such third parties. Except in emergencies, TIMEWELSCHEDULED INC will use reasonable efforts to perform any service that could disrupt the Service during predetermined service windows, or otherwise inform the Customer before interrupting Service. If equipment malfunctions or fails, TIMEWELSCHEDULED INC will use reasonable efforts to restore the Service as quickly as reasonably possible. The Service is otherwise provided “AS IS,” “WITH ALL FAULTS,”“AS AVAILABLE” AND AT THE CUSTOMERS SOLE RISK. The Customer alone is responsible for the use of the Service and the information stored in the Service. TIMEWELSCHEDULED INC does not warrant that the Service is error free, that it will operate uninterrupted or without problems, or that it will satisfy the Customer’s expectations. TIMEWELSCHEDULED INC expressly excludes and disclaims all express or implied conditions, representations and warranties including, without limitation, any implied
warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement to the extent allowable by law.
IN NO EVENT IS TIMEWELSCHEDULED INC LIABLE FOR ANY LOST PROFIT, REVENUE OR DATA OR FOR DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL, OR DAMAGES CAUSED BY CUSTOMER’S USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OPERATION OF LAW OR OTHERWISE, EVEN IF TIMEWELSCHEDULED INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF TIMEWELSCHEDULED INC, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OPERATION OF LAW OR OTHERWISE SHALL NOT EXCEED THE FEE PAID BY THE CUSTOMER FOR THE SERVICE FOR A SIX MONTH PERIOD.
The parties acknowledge that TIMEWELSCHEDULED INC has set its prices and entered into this Agreement in reliance on the limitations of liability and disclaimers of warranties and damages set forth herein, and that the same form a fundamental and essential basis of the bargain between the parties. They shall apply even if this Agreement is found to have failed in its fundamental or essential purpose or been fundamentally breached.
- Governing Law: This Agreement will be interpreted in accordance with and governed by the laws of the Province of Ontario, Canada, excluding conflicts of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the non- exclusive jurisdiction of the courts of Ontario, and the Federal Court of Canada. Any actions against TIMEWELSCHEDULED INC must be commenced in the courts of Ontario or the Federal Court of Canada.
- Dispute Resolution: To resolve disputes which may arise between the parties, any party will notify the other in writing of its intent to escalate to each parties’ President or CEO.
If the issue is not resolved within ten (10) days, then the resolution of the dispute shall be referred to a mediator chosen by the parties. If the parties are unable to agree on a mediator, then either party may apply to a judge of the Ontario Court (General Division), and such judge shall appoint an independent mediator with relevant experience and sufficient qualifications to provide mediation Service to the parties.
If the parties are unable to resolve the dispute with the assistance of the mediator, within fifteen (15) days of the appointment thereof, the dispute shall be settled by arbitration in accordance with the Arbitrations Act (Ontario). If the Customer does not have a Canadian business establishment, the arbitration shall be in accordance with the International Commercial Arbitration Act (Ontario). The award of the arbitration shall be final and binding upon the parties hereto, and enforceable in any court of competent jurisdiction. The venue for any arbitration hereunder shall be London, Ontario.
Nothing in this section shall defer or interfere with the entitlement of either party to obtain injunctive relief.
- Interpretation: Each paragraph and provision of this Agreement is severable, and if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect. Time shall be of the essence.
- Prior agreement: This Agreement contains the complete and exclusive statement of the agreement between the parties and supersedes all prior and contemporaneous agreements, purchase orders, understandings, proposals, negotiations, representations or warranties of any kind whether written or oral. No oral or written representation that is not expressly contained in this License is binding on either party. This Agreement cannot be amended or modified, other than by a change made in writing, dated and executed by the parties.
- Force Majeure: TIMEWELSCHEDULED INC is not liable for an omission or delay in the execution of its obligations caused by an event beyond its reasonable control. The time for the performance of the obligation that is so delayed shall be extended by a reasonable time, provided that payments shall not be delayed.
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