Last updated: January 16, 2023
The Time by Wagepoint software-as-a-service Terms of Service (the “Agreement”) form an agreement between the Company accessing, downloading, installing, or otherwise using (the terms “use” and “using” will refer to any of the foregoing) Time by Wagepoint (such Company, the “Company” as indicated on the Registration Page) and the applicable Wagepoint Contracting Party specified below (“Wagepoint”), the supplier of Time by Wagepoint. This Agreement sets forth the terms and conditions that govern the provision and use of Time by Wagepoint and is entered into on the earlier of the date that Company (a) first uses any part of Time by Wagepoint or (b) agrees to be bound by this Agreement (the “Effective Date”). Each of Wagepoint and Company shall individually be referred to as a “Party” and jointly as the “Parties”.
“Time by Wagepoint” means: (i) the software-as-a-service provided by Wagepoint to enable organizations schedule and track their mobile employees’ projects, shift times, and locations (previously referred to as TimeSheet Mobile); (ii) the Time by Wagepoint mobile applications; and (iii) any component or Modification of the services referred to in (i).
IF COMPANY IS USING THE TIME BY WAGEPOINT SERVICES ON BEHALF OF ANOTHER PERSON, COMPANY HEREBY REPRESENTS AND WARRANTS TO TIME BY WAGEPOINT THAT COMPANY HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT AND IS NOT BARRED UNDER ANY APPLICABLE LAWS FROM DOING SO.
COMPANY UNDERSTANDS THAT IT WILL KEEP ITS USERNAME NAME AND PASSWORD CONFIDENTIAL AND WILL BE LIABLE FOR ANY UNAUTHORIZED USE OF ITS ACCOUNT. COMPANY ACKNOWLEDGES THAT THE SERVICES MAY CHANGE FROM TIME TO TIME. THESE CHANGES AND ANY SUSPENSION, OR MODIFICATION OF THE SERVICES MAY BE MADE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. WE MAY ALSO REMOVE ANY CONTENT FROM OUR SERVICES AT OUR DISCRETION.
COMPANY REPRESENTS AND WARRANTS TO TIME BY WAGEPOINT THAT COMPANY HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.
1. Time by Wagepoint
(a) Provisioning of Time by Wagepoint. Subject to Company’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Wagepoint will make Time by Wagepoint available to Company and Permitted Users on the terms and conditions set out in this Agreement during the Term.
(b) Permitted Purpose. Company may access and use Time by Wagepoint solely for Company’s business purposes.
(c) Restrictions on Use. Company will not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute Time by Wagepoint or any Intellectual Property Rights therein, or otherwise make Time by Wagepoint available to others other than Permitted Users;
(ii) use Time by Wagepoint to permit timesharing, service bureau use or commercially exploit Time by Wagepoint;
(iii) use or access Time by Wagepoint:
(A) in violation of any applicable law;
(B) in a manner that threatens the security or functionality of Time by Wagepoint; or
(C) for any purpose or in any manner not expressly permitted in this Agreement;
(iv) use Time by Wagepoint to create, collect, transmit, store, use or process any Company Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Company does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right,
privacy right or right of publicity);
(v) Modify Time by Wagepoint;
(vi) reverse engineer, decompile or disassemble Time by Wagepoint;
(vii) remove or obscure any proprietary notices or labels on Time by Wagepoint, including brand, copyright, trademark and patent or patent pending notices;
(viii) access or use Time by Wagepoint for the purpose of building a similar or competitive product or service;
(ix) access or use Time by Wagepoint for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
(x) access or use Time by Wagepoint in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; or
(xi) perform any vulnerability, penetration or similar testing of Time by Wagepoint.
(d) Restricted Countries and Entities. Company represents and warrants that it has not been listed on any U.S. or Canadian government list of prohibited or restricted parties.
(e) Company’s Responsibility for Permitted Users. Company is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use Time by Wagepoint, and for Permitted Users’ compliance with this Agreement.
(f) Company’s Responsibility for Accuracy and Completeness. Company is responsible for reviewing and authenticating decisions, reviews, schedules, messages, alerts, checklists, reports, and all other information required by Wagepoint. Company is responsible for immediately providing updated Company Data in the event any Company Data changes. Company agrees to notify Wagepoint immediately of any discrepancies promptly after receiving Time by Wagepoint.
(g) Suspension of Access; Scheduled Downtime; Modifications. Wagepoint may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
(i) suspend Company’s access to or use of Time by Wagepoint or any component thereof:
(A) for scheduled maintenance;
(B) due to a Force Majeure;
(C) if Wagepoint believes in good faith that Company or any Permitted User has violated any provision of this Agreement;
(D) to address any emergency security concerns;
(E) for non-payment of invoices and Fees;
(F) if required to do so by a regulatory body or as a result of a change in applicable law; or
(G) for any other reason as provided in this Agreement.
(ii) make any Modifications to Time by Wagepoint.
(h) Subcontracting. Wagepoint may engage third parties to assist it in providing Time by Wagepoint or any part thereof.
(i) Third-Party Products. Time by Wagepoint may permit access to products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through Time by Wagepoint (“Third-Party Products”). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Company for acceptance within Time by Wagepoint by website link or otherwise. If Company does not agree to abide by the applicable terms for any such Third-Party Products, then Company should not install, access, or use such Third-Party Products.
(j) Competitors: Wagepoint’s direct competitors (as determined by Wagepoint in its sole discretion) are prohibited from accessing Time by Wagepoint, except with Wagepoint’s prior written consent.
(k) Wagepoint Contracting Party. The “Wagepoint Contracting Party” is based on the Customer’s account country indicated at the time of registration. If the Customer’s account country is Canada, the Wagepoint Contracting Party will be Wagepoint
Holdings Inc. If the Customer’s account country is the United States of America, the Wagepoint Contracting Party will be Wagepoint Holdings USA Inc. If the Customer’s account country is a country other than Canada or the United States of America, the Wagepoint Contracting Party will be Wagepoint Holdings Inc. In the event Customer changes its account country to a different country, Customer agrees that this Agreement will be assigned to the new Wagepoint Contracting Party without any further action required by either Party.
2. Company User Accounts
(a) In order for Company to access and use Time by Wagepoint on behalf of Company, Wagepoint will issue an administrator account (the “Administrator Account”). The Administrator Account provides Company with the capability to create user accounts (each, a “Company User Account”) for each user that Company wishes to have access to and use of Time by Wagepoint (each user a “Permitted User”). For clarity, a Permitted User includes the administrator of the Administrator Account.
(b) Company will ensure that Permitted Users only use Time by Wagepoint through the Company User Account. Company will not allow any Permitted User to share the Company User Account with any other person. Company will promptly notify Wagepoint of any actual or suspected unauthorized use of Time by Wagepoint. Wagepoint reserves the right to suspend, deactivate, or replace the Company User Account if it determines that the Company User Account may have been used for an unauthorized purpose. Company will ensure that all individual users of Time by Wagepoint, including Permitted Users, are contractually bound to terms and conditions with Company that are no less restrictive or protective of Wagepoint’s rights than those set forth in this Agreement.
3. Ownership; Reservation of Rights and License Grants
(a) As between Wagepoint and Company, Company retains all ownership and Intellectual Property Rights in and to Company Data. Company grants to Wagepoint a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Company Data to:
(i) Provide Time by Wagepoint;
(ii) improve and enhance Time by Wagepoint and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
Wagepoint may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Company of any kind. As between Wagepoint and Company, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Wagepoint.
If the Customer is party to the DSP program, the Customer authorizes Wagepoint to provide time data to designated third party agencies in order to verify Customer’s compliance both with applicable law and the agreement between Customer and Amazon. The data consist in anonymized daily details such as hours worked.
(b) Wagepoint or its licensors retain all ownership and Intellectual Property Rights in and to: (i) Time by Wagepoint;
(ii) anything developed or delivered by or on behalf of Wagepoint under this Agreement;
(iii) all other Wagepoint Confidential Information, including but not limited to, any reports generated from Time by Wagepoint or any Aggregated Data;
(iv) any Modifications to the foregoing (i), (ii) and (iii)
(collectively “Wagepoint Property”).
(c) Company grants to Wagepoint and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Time by Wagepoint, any suggestion, enhancement request, recommendation, correction or other feedback provided by Company or Permitted Users relating to the operation of Time by Wagepoint or any of Wagepoint’s other services or its affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Company or Permitted Users and without any obligation to the Company or any Permitted User. Wagepoint is not obligated to use any Feedback.
(d) All rights not expressly granted by Wagepoint to Company under this Agreement are reserved.
5. Fees and Payment
(a) Fees. Unless otherwise agreed-to between the Parties in writing, , all fees are identified at https://timesheetmobile.com/pricing (“Fees”). Except as otherwise specified herein or in the Company’s account: (i) Fees are based on the number of employees subscribed and the usage per month; (ii) Fees are payable in advance on a monthly basis and are non-cancelable; (iii) Fees paid are non-refundable; and (vi) quantities purchased cannot be decreased during the relevant month. If Company’s use of Time by Wagepoint exceeds its agreed-upon service capacity or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Company will be billed for such usage and Company will pay the additional fees in accordance with this Agreement.
(b) Currency. If the Company’s account country at the time of registration is Canada, Fees will be charged in Canadian dollars (CAD). If the Company’s account country at the time of registration is any country other than Canada, Fees will be charged in United States dollars (USD). If the company is a DSP program participant, fees will be charged in Euros.
(c) Changes to the Fees. Wagepoint reserves the right to change the Fees upon providing not less than 30 days prior notice to Company.
(d) Payment Methods. If Company is required to pay Fees under this Agreement, Company must provide a valid method of payment upon Company User Account creation.
Company agrees and acknowledges that Wagepoint may bill Company’s payment method on a monthly basis.
(e) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Company will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Wagepoint.
(f) Suspension. Any suspension of Time by Wagepoint by Wagepoint pursuant to the terms of this Agreement will not excuse Company from its obligation to make payments under this Agreement.
6. Confidential Information
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future suppliers, technology or business, and where the Discloser is Company includes Company Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to:
(A) in the case of Company to its own employee having a “need to know” and that have entered into written agreements no less protective of
such Confidential Information than this Agreement, and to such other
recipients as the Discloser may approve in writings;
(B) in the case of Wagepoint to its employees, consultants, contractors, subcontractors, agents or affiliates, having a “need to know” and that
have entered into written agreements no less protective of such
Confidential Information than this Agreement; or
(C) to such other recipients as the Discloser may approve in writing;
(D) If the Customer is party to the DSP program, the Customer authorizes Wagepoint to provide time data to designated third party agencies in order to verify Customer’s compliance both with applicable law and the agreement between Customer and Amazon. The data consist in anonymized daily details such as hours worked.
(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Wagepoint, to a purchaser or potential purchased of all or substantially all of the assets or entities that comprise an identifiable segment, portion, division or unit of a business provided such purchaser enters into a confidentiality agreement with Wagepoint prior to being provided any Confidential Information.
(d) Return of Confidential Information. Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Company Data which is addressed at Section 10(d) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Wagepoint may retain any electronically archived Company’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
7. Warranty and Disclaimer
(a) Company Warranty. Company represents and warrants to and covenants with Wagepoint that the Company Data will only contain Personal Information in respect of which Company has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Wagepoint to provide Time by Wagepoint, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Wagepoint and to or from all applicable third parties.
(b) NO PROFESSIONAL ADVICE.
(i) Company acknowledges and agrees that Wagepoint does not provide professional human resources, employment law, tax opinions or tax management advice to Company’s and that Company’s use of Time by Wagepoint does not create any fiduciary obligations between Wagepoint and
the Company. Wagepoint depends on third parties, including government agencies and subcontractors, to provide and update Time by Wagepoint.
(ii) CUSTOMER ACKNOWLEDGES AND AGREES THAT IT USES AND RELIES UPON THE TIME BY WAGEPOINT SERVICES AT ITS OWN RISK AND ACKNOWLEDGES THAT WAGEPOINT CANNOT GUARANTEE THAT ANY DATA OR OTHER INFORMATION CONTAINED IN TIME BY WAGEPOINT IS ACCURATE OR CURRENT.
(iii) Company acknowledges and agrees that it will receive, review and be the contact for all correspondence and all other communications with the relevant government, regulatory, and taxing authorities.
(iv) Company acknowledges and agrees that it is responsible for all output generated by Time by Wagepoint and will confirm its accuracy on a regular basis. Company will conduct its own due diligence and engage qualified professionals for all matters requiring professional advice.
(c) GENERAL DISCLAIMER.
(i) WAGEPOINT DOES NOT WARRANT THAT TIME BY WAGEPOINT WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF TIME BY WAGEPOINT. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, TIME BY WAGEPOINT (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY WAGEPOINT TO COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
(ii) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAGEPOINT HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WAGEPOINT EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO COMPANY IN CONNECTION WITH COMPANY’S USE OF TIME BY WAGEPOINT (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY COMPANY FOR ANY PURPOSE WHATSOEVER.
(iii) NO METHOD OF ELECTRONIC STORAGE OR TRANSMISSION OVER THE INTERNET IS PERFECTLY SECURE; WAGEPOINT DOES NOT MAKE ANY GUARANTEES OR WARRANTIES RELATED TO THE SECURITY OR INTEGRITY OF ANY COMPANY DATA PROVIDED TO WAGEPOINT.
(a) Wagepoint’s Indemnity.
(i) Wagepoint will indemnify, defend, and hold harmless the Company and its officers, directors, employees, and agents (each, a “Company Indemnitee”) from and against any and all Losses incurred by a Company Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate or a Company Indemnitee) that arise from or relate to any allegation that Time by Wagepoint infringe any third-party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any component of Time by Wagepoint into, or any combination, operation, or use of any Time by Wagepoint component with, any products or services not provided or authorized by Wagepoint, unless such infringement would also have resulted solely from the use of Time by Wagepoint without their incorporation in, or combination, operation or use, with such other products or services; (B) Modification of Time by Wagepoint other than by Wagepoint or with Wagepoint’s express written approval; (C) unauthorized use of Time by Wagepoint; or (D) Company’s indemnity in Section 8(b).
(ii) If Time by Wagepoint are, or in Wagepoint’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Company’s use of Time by Wagepoint is enjoined or threatened to be enjoined, Wagepoint may, at its option and sole cost and expense:
(A) obtain the right for the Company to continue to use the affected Time by Wagepoint services materially as contemplated by this Agreement;
(B) Modify or replace Time by Wagepoint, in whole or in part, to seek to make Time by Wagepoint (as so modified or replaced) non-infringing
while providing materially equivalent features and functionality, in
which case such Modifications or replacements will constitute Time by
Wagepoint under this Agreement; or
(C) if Wagepoint determines that neither of the foregoing two options are reasonably available, by written notice to the Company, terminate Time
by Wagepoint, in whole or in part, and require the Company to
immediately cease all use of the terminated Time by Wagepoint or part
or feature thereof and refund any unused prepaid Fees for the
terminated Time by Wagepoint, if applicable.
This Section 8(a) states the Wagepoint’s sole liability to, and the Company Indemnitees exclusive remedy against, Wagepoint for any third party claim described in this section.
(b) Company Indemnity. The Company will defend, indemnify and hold harmless Wagepoint, and its officers, directors, employees and agents (each, a “Wagepoint Indemnitee”) from and against any and all Losses incurred by a Wagepoint Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a Wagepoint Indemnitee) that arise from or relate to: (i) Company Data; (ii) Company’s
breach of any of Company’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of Time by Wagepoint by the Company or any Permitted User; or (iv) use of Time by Wagepoint (or any part thereof) by Company or any Permitted User in combination with any third party software, application or service. Company will fully cooperate with Wagepoint in the defense of any claim defended by Company pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Wagepoint.
(c) Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 8. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8(c) will not relieve the Indemnitor of its indemnity obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
9. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF WAGEPOINT IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY COMPANY FOR TIME BY WAGEPOINT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL WAGEPOINT’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WAGEPOINT BE LIABLE TO COMPANY OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
10. Term and Termination
(a) Term. A subscription to Time by Wagepoint will commence on the Effective Date and will continue in full force and effect until this Agreement is terminated by either Party (the “Term”).
(b) Termination by Wagepoint. Wagepoint may, at its discretion, terminate this Agreement effective immediately at any time by providing written notice to Company.
(c) Termination by Company. Company may, at its discretion, terminate this Agreement by: (i) Closing its account following the “Close Account” instructions on the Website; or
(ii) Provide written notice to Wagepoint that Company wishes to terminate this Agreement.
(d) Effect of Termination. Upon termination of this Agreement, Company will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Time by Wagepoint (without right to refund of any Fees) and Company shall delete or, if requested by Wagepoint, return any Wagepoint Property in its possession and certify in writing to Wagepoint that the Wagepoint Property has been deleted or destroyed. No termination will affect Company’s obligation to pay all Fees and any amounts due to Wagepoint that may have become due before such termination or entitle the Company to any refund. All Fees due and payable and any amounts due to Wagepoint are immediately due and are to be immediately paid by Company to Wagepoint. Wagepoint has no obligation to refund to Company any pre-paid Fees. Wagepoint will have no obligation to maintain or provide any Company Data and will thereafter: (a) indicate that the Company’s account is “inactive” or “closed”; and (b) at Wagepoint’s discretion delete or destroy all copies of Company Data in its systems or otherwise in its possession or control, unless Wagepoint is legally prohibited from doing so or is required to retain Company Data. Notwithstanding the foregoing, Wagepoint will not be required to remove any Company Data from its media and services that are maintained in accordance with its standard procedures of record retention policies until such time as such data is scheduled to be deleted provided that in all cases Company Data will continue to be protected in accordance with this Agreement.
(e) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(e) (Survival), and Section 11 (General Provisions).
11. Apple App Store Additional License Terms
(a) Apple App Store. If Time by Wagepoint is provided to Company through the Apple Inc. (Apple Inc. together with all of its affiliates, "Apple") App Store, the following terms and
conditions apply to Company in addition to all the other terms and conditions of this Agreement:
(i) The Parties acknowledge this Agreement are concluded between the Parties, and not with Apple. The responsibility for Time by Wagepoint and content thereof is governed by this Agreement.
(ii) Notwithstanding anything to the contrary hereunder, Company may use Time by Wagepoint only on an Apple device that Company owns or controls.
(iii) Company and Wagepoint acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to Time by Wagepoint.
(iv) In the event of any failure of Time by Wagepoint to conform to any applicable warranty, Company may notify Apple, and Apple will refund the purchase price for Time by Wagepoint (if any) to Company . Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Time by Wagepoint, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Agreement.
(v) Any claim in connection with Time by Wagepoint related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by this Agreement, and Apple is not responsible for such claim.
(vi) Any third party claim that Time by Wagepoint or Company 's possession and use of Time by Wagepoint infringes that third party's Intellectual Property Rights will be governed by this Agreement, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.
(vii) Company represents and warrants that Company is not: (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; or (b) listed on any U.S. Government list of prohibited or restricted parties.
(viii) Company may contact Wagepoint in writing regarding any notices, questions, complaints or claims with respect to Time by Wagepoint.
Name: Time by Wagepoint
Address: #1110, 240-70 Shawville Blvd SE, Calgary, Alberta, Canada T2Y2Z3
Email Address: email@example.com
(ix) Apple is a third party beneficiary to this Agreement and may enforce this Agreement against Company.
(x) If any of the terms and conditions in this Agreement are inconsistent or in conflict with Apple's applicable instructions for Minimum Terms for Developer's End User License Agreement (the current version as of the date this Agreement
was last updated is located at: http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/) or the App Store Terms of Service (the current version as of the date this Agreement was last updated is located at: http://www.apple.com/legal/internet-services/itunes/ca/terms.html), the terms and conditions of Apple's instructions for Minimum Terms for Developer's End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.
12. Google Play Additional Terms.
(a) Google Play. If Time by Wagepoint is provided to Company through the Google Inc. (Google Inc. together with all of its affiliates, "Google") Google Play store, the following terms and conditions apply to Company in addition to all the other terms and conditions of this Agreement:
(i) Company acknowledges that Google is not responsible for providing support services for Time by Wagepoint.
(ii) If any of the terms and conditions in this Agreement are inconsistent or in conflict with the Google Play Developer Distribution Agreement (the current version as of the date this Agreement was last updated is located at https://play.google.com/about/developer-distribution-agreement.html), the terms and conditions of Google's Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.
13. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Wagepoint, to the following Wagepoint’s address and email contact:
Time by Wagepoint
#1110, 240 - 70 Shawville Blvd, SE
and (ii) if to Company, to the current mailing or email address that Wagepoint has on file with respect to Company. Wagepoint may change its contact information by posting the new contact information on the Website or by giving notice thereof to Company. Company is solely responsible for keeping Company’s contact information on file with Wagepoint current at all times during the Term.
(b) Assignment. Company may not assign this Agreement to any third party without Wagepoint’s prior written consent. Any purported assignment or delegation by Company in violation of this Section will be null and void. Wagepoint may assign this Agreement or
any rights under this Agreement to any third party without Company’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment. This Agreement and any Action related thereto will be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Wagepoint from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. Company will comply with all export laws and regulations that may apply to its access to or use of Time by Wagepoint. Wagepoint makes no representation or warranty that Time by Wagepoint may be exported without Company first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
(e) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control (except for a failure by Company to pay Fees or Company’s indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third party providers of telecommunications, financial systems, banking networks, hosting infrastructure, websites, or other third party services (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Company from its failure to pay Fees or Company’s indemnities under this Agreement.
(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. Wagepoint’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(k) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, WAGEPOINT MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING COMPANY PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY WAGEPOINT, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO COMPANY OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) Company Lists. With Company’s prior written consent, Wagepoint may identify the Company by name and logo as a customer of Time by Wagepoint on the Website and on other promotional materials. Any goodwill arising from the use of the Company’s name and logo will inure to the benefit of the Company.
(m) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
(a) “Company Data” means any data, information, content, records, and files that Company or any Permitted User loads or enters into, transmits to, or makes available to Time by Wagepoint, including but not limited to Personal Information and Employment Information, excluding Aggregated Data and any other Wagepoint Property.
(b) “Employment Information” means any employment related information stored, uploaded or transferred of any Permitted Users by the Company.
(c) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(e) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(f) “Personal Information” means information about an identifiable individual, including name, phone number, credit card or other billing information, email address and home and business addresses.
(g) “Website” means any websites used by Wagepoint to provide Time by Wagepoint, including the websites located at https://wagepoint.com/timebetasignup , dsp.timesheetmobile.com, timesheetmobile.com.