ONTHECLOCK - SAAS AGREEMENT
This agreement (“Agreement”) is made and entered as of the 5th of September, 2023 (as defined herein) by and between OnTheClock.com LLC, a Michigan limited liability company (“OnTheClock”), and You, our Customer (“Customer”). Customer and OnTheClock may each be referred to as a “Party” and collectively referred to as the “Parties”.
SECTION 10 OF THESE TERMS CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT APPLY TO ALL CLAIMS BROUGHT AGAINST ONTHECLOCK IN THE UNITED STATES. PLEASE READ THEM CAREFULLY.
“Administrator” means a user who represents Customer to this Agreement and executes Customer’s duties and obligations under this Agreement on Customer’s behalf. An Administrator has full and total rights to Customer’s Account, including setup, activation, cancellation, billing, and inviting additional people to become Registered Users on the Account.
“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
“Customer Information” means all information and data submitted to OnTheClock by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services, including data that is collected through the Services.
“Platform” means the OnTheClock proprietary “Software as a Service” (defined herein) that allows individuals to keep track of time, hours, and data related to employee productivity.
“Services” means access to the Platform and services, via a customer account, that are ordered by and paid for by Customer and made available by OnTheClock, including user guides, documentation, and help/training materials provided by OnTheClock.
“Service Start Date” means the first date on which Customer is granted access to the Services purchased.
“Software as a Service” (“SaaS”) means a software delivery model in which a software platform is made available on a subscription basis and is centrally hosted.
- OnTheClock Services.
- Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s internal business and non-commercial purposes, OnTheClock shall make the Services available to Customer.
- Updates and Functionalities. Customer acknowledges that, from time to time, OnTheClock may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, OnTheClock will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). Customer acknowledges that the Platform and Services may interoperate with several Third-Party Supported Platforms, and that the Platform and Services are highly dependent on the availability of such Third-Party Supported Platforms. If at any time any Third-Party Supported Platforms cease to make their features or programs available to OnTheClock on reasonable terms, OnTheClock may cease to provide access to such features or programs to Customer without entitling Customer to refund, credit, or other compensation. In no way is OnTheClock required to customize its Services for Customer, and OnTheClock does not represent or warrant that its Platform or Services will be compatible with Customer’s systems.
- Acceptable Use Policy. Customer shall:
- be responsible for Authorized Users’ compliance with this Agreement;
- use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and user names confidential and not permitting any third party to access or use its or any of its Authorized Users’ user names, passwords, or Customer account for the Services;
- be solely responsible and liable for all activity conducted through its Customer account in connection with the Services;
- promptly notify OnTheClock if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, password, or Customer account;
- use, or otherwise access in connection with Customer’s use thereof, the Services only in accordance with applicable laws and government regulations; and
- comply in all respects with all applicable terms of the Third-Party Supported Platforms that it accesses or subscribes to.
Customer must not:
- make the Platform or Services available to anyone other than its Authorized Users;
- sell, trade, or otherwise transfer the Platform or Services to another party;
- use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law;
- upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
- attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
- attempt to gain unauthorized access to the Platform or Services, the Supported Platforms, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform, Services, or the Third-Party Supported Platforms;
- access the Platform or Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Platform, Services, or the Third-Party Supported Platforms; or
- authorize, permit, or encourage any third party to do any of the above.
Customer agrees that OnTheClock may temporarily suspend or terminate its access to the Platform or Services for a violation of this Section 2.3 or for any abusive practices that degrade the performance of any Service for Customer and/or other OnTheClock customers, or at OnTheClock’s sole discretion.
- Third-Party Supported Platforms and Services. Customer’s use of Third-Party Supported Platforms and other third parties via third-party websites, platforms, or applications (collectively, the “Third-Party Services”) is governed solely by the terms and conditions of such Third-Party Services (and Customer shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between Customer and the relevant third party, and not OnTheClock. OnTheClock makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any contract entered into and any transactions completed and any contract entered into by Customer with any such third party. Further, Customer acknowledges and agrees that, if Customer installs or enables a Third-Party Service, Customer grants OnTheClock permission to allow the provider of such Third-Party Service to access its Customer Information solely to the extent required for the interoperation of the Third-Party Service with the Services or as Customer may otherwise authorize or direct.
- Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict OnTheClock’s right to license, sell, or otherwise make available the Platform or Services to any third party or perform any services for any third party.
- Data Management. During the Term, OnTheClock does not modify Customer Information and therefore is not responsible for the accuracy of any Customer Information. It is the Customer and Administrator and/or their managers that are responsible for the accuracy of all Customer Information. Additionally, OnTheClock does not delete Authorized Users during the Term, and therefore is not responsible for the loss of any Customer Information that occurs when an Authorized User is deleted. OnTheClock reserves the right to delete data and Authorized Users upon termination or violation of this Agreement.
- Data Collection; Storage. Customer has control and responsibility for determining what Customer Information is submitted to the Services and for obtaining all necessary consents and permissions for submission of Customer Information and processing instructions to OnTheClock. Without limiting OnTheClock’s obligations hereunder, Customer acknowledges that Customer is responsible for properly configuring and using the Platform and Services and otherwise taking reasonable action to secure and protect Customer accounts and Customer Information.
- Rights in Customer Information. Customer is solely responsible for the accuracy, content and legality of all Customer Information and agrees to comply with all applicable laws in its use of the Services. Customer represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Information as contemplated in this Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any applicable laws and regulations.
- Intellectual Property.
- Platform and Services. As between Customer and OnTheClock, OnTheClock retains all right, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of OnTheClock’s rights or interests therein or any other OnTheClock intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by OnTheClock.
- Feedback. Customer may from time to time provide suggestions, comments, or other feedback to OnTheClock with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Article 5 of this Agreement, shall not create any confidentiality obligation for OnTheClock. Customer shall, and hereby does, grant to OnTheClock a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
- Customer Information. Customer hereby grants OnTheClock a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, with right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index the Customer Information for the purpose of providing and developing the Platform and Services to Customer and supporting Customer’s use of the Platform and Services. Subject only to the limited license expressly granted herein, Customer and its Authorized Users shall retain all right, title and interest in and to, and all intellectual property rights in, the Customer Information. Nothing in this Agreement will confer on OnTheClock any right of ownership or interest in or to, or the intellectual property rights in the Customer Information.
- Fees and Payment.
- Fees. Customer will be automatically charged at the end of each month for their subscription to the Services. (the “Fees”). If Customer has less than two employees activated on the account, Customer will not be charged for the Fees. There are no refunds or credits for partial months of service, upgrade or downgrade refunds, or refunds for months unused with an open account. Customer agrees to provide an accurate number of employees at all times for proper invoicing.
- Invoicing. OnTheClock shall provide an invoice to Customer reflecting the Fees charged at the end of every month. Any disputed amounts shall not affect payment of non-disputed amounts. Customer shall be automatically charged to the payment information on file with OnTheClock each billing cycle, whether via credit card, wire, or automated clearing house (“ACH”). It is the responsibility of the Customer to ensure that their payment information is up to date and not expired to avoid any disruption in the Services. Customer understands and agrees that OnTheClock will not be held liable for any Authorized User’s failure to complete a transaction entered into through the Platform.
- Payment Processor. We currently use Authorize.Net as our payment gateway service provider. Customer’s payment information is securely processed by Authorize.Net. We have implemented data privacy and security measures in compliance with Authorize.Net's requirements to protect our customers' information. Please note that there may be applicable fees and charges associated with using Authorize.Net for transactions. These fees and charges are subject to change without notice. If you choose to make a transaction through Authorize.Net, you agree to their terms and conditions, as well as ours. By using our payment processor, you grant us permission to access and process payments through Authorize.Net. We retain the ability to change our payment processor at any time, and will notify customers if any changes are made.
- Auto-Renewal. Customer agrees and authorizes OnTheClock to issue a monthly recurring charge for Customer’s utilization of the Platform and Services absent termination consistent with Article 6. By agreeing to these terms, Customer authorizes OnTheClock to initiate ACH transactions or Credit Card payments on your behalf using the payment information Customer has provided. Customer acknowledges and agrees that Customer is responsible for ensuring that the payment information provided is accurate and up-to-date. Customer further acknowledges and agrees that OnTheClock may rely on the payment information Customer has provided to initiate ACH transactions.
- Re-Pricing of Fees and Fee True-Up. In the event it is determined that the Customer’s number of employees or annual SaaS spend are incorrect, Customer agrees both that (1) OnTheClock may adjust the Fees and (2) Customer shall pay any additional Fees commensurate with the actual number of employees or annual SaaS spend. Customer agrees that any additional Fees required by the foregoing sentence shall constitute a required true-up in order to maintain use of the Services, and payment for any such Fees shall be made by Customer within thirty (30) days of notification by OnTheClock to Customer.
- Late Payment. If any amounts invoiced hereunder as Fees or otherwise are not received by OnTheClock by the due date, then at OnTheClock’s discretion, upon 15 days' written notice to Customer provided after the due date, OnTheClock may suspend Customer’s access to the Services. If the amounts invoiced hereunder are not received by OnTheClock by the end of the calendar month in which the written notice was issued, then OnTheClock may terminate Customer’s account.
- Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If OnTheClock has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides OnTheClock with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Confidential Information and Security Requirements.
- Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care consistent with industry standards) and will not disclose or use any Confidential Information (as defined below) of the other Party for any purpose outside of the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein. In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each Party. Confidential Information includes (i) Each party’s proprietary system offerings, including the Platform and/or Services, along with documentation and plans related thereto; (ii) Passwords, authorization keys, or codes use to access or operate such system offerings; (iii) Any results, Customer Information, or statistics collected through use of the system offerings; or (iv) Any business information that is either marked physically or identified orally as “confidential” or “proprietary.” Confidential Information excludes any information that (a) was lawfully in the receiving party’s possession before receiving it from the disclosing party; (b) is provided in good faith to the receiving party by a third party without restriction on use or disclosure and without breaching any rights of the disclosing party; (c) is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or (d) was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In the event that the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
- Security Requirements. OnTheClock has implemented technical and organizational security measures consistent with the prevailing industry standards. However, OnTheClock cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Customer’s account or use, alteration, or disclosure of the Customer Information.
- Term and Termination.
- Term of Agreement. This Agreement shall commence on the Service Start Date (the “Effective Date”) and shall be in effect for one month or until this Agreement has been terminated in accordance with this Article 6 (the “Initial Term”). This Agreement shall automatically renew for subsequent one-month periods, unless a Party terminates this Agreement beforehand (“Renewal Term”, collectively with Initial Term, the “Term”). Upon renewal, OnTheClock reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 15 days prior to the end of the then-current term.
- Termination for Cause. A Party may terminate this Agreement for cause (i) upon 30 days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. No refund shall be issued in the event of termination for cause by OnTheClock.
- Termination for Convenience. OnTheClock may terminate this Agreement for convenience upon written notice (email is sufficient) to Customer. Customer may terminate this Agreement for convenience upon logging onto their account and initiating the cancellation process on the billing screen. Administrators of Customer’s account are solely responsible for properly canceling Customer’s account. If the Customer terminates their account before the end of the billing period and the date of termination is on or after the 14th day of the month, Customer will be billed for the entire month and their access to the Services will be terminated immediately. The Customer will not have access to the Services for the remainder of the billing period.
- Effects of Termination. Upon termination of this Agreement for any reason: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by OnTheClock; and (iii) Customer will pay OnTheClock all unpaid Fees owing to OnTheClock. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to OnTheClock for the period prior to the date of termination and other obligations that survive termination of this Agreement. Customer Information will remain on our system for one year after cancellation and may be deleted from the Website after that time. Please note that this information cannot be recovered once it is deleted.
- Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Section 4.1 as well as Articles 3, 5, 7-10 shall survive the expiration or termination of this Agreement.
- Warranties and Warranty Disclaimer.
- Mutual Warranties. Each of OnTheClock and Customer represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.
- OnTheClock Warranties. OnTheClock warrants that (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the Term; and (ii) the Services do not knowingly contain any malicious code or viruses. For any breach of an above warranty, Customer’s exclusive remedies are those described in Section 6.3.
- Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION 7.3 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, ONTHECLOCK EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ONTHECLOCK SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, ONTHECLOCK DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ONTHECLOCK OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
ONTHECLOCK DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING USAGE DATA, CUSTOMER INFORMATION, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. ONTHECLOCK DOES NOT CONTROL OR VET CUSTOMER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. ONTHECLOCK IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SUPPORTED PLATFORMS. ONTHECLOCK EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CUSTOMER ACCOUNT AND CUSTOMER INFORMATION.
- Mutual Indemnification.
- Indemnification by OnTheClock. Subject to Customer’s compliance with Section 8.3 and to the maximum amount as set forth in Article 9, OnTheClock shall defend Customer from and against any and all third-party claims that the use of the Services as permitted hereunder infringes a valid intellectual property right (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim.
OnTheClock will have no liability for any Claim to the extent it arises from:
- a modification of the Platform or Services by or at the direction of Customer or an Authorized User;
- use of the Platform or Services in violation of this Agreement or applicable law;
- use of the Platform or Services after OnTheClock notifies Customer to discontinue use because of an infringement or misappropriation claim;
- the combination, operation, or use of the Platform or Services with any other software, program, or device not provided or specified by OnTheClock to the extent such infringement would not have arisen but for such combination, operation, or use; or
- Customer’s use of the Platform or Services in a manner that is inconsistent with its intended use.
For avoidance of doubt, OnTheClock’s indemnification obligations in this Section 8.1 will not apply to Third-Party Supported Platforms accessed through the Platform or Services.
If a Service has become, or in OnTheClock’s opinion is likely to become, the subject of any such Claim, OnTheClock may at its option and expense:
- procure for Customer the right to continue using the Service as set forth hereunder;
- replace or modify the Service or certain functionalities to make it non-infringing; or
- if options (a) or (b) are not reasonably practicable, terminate this Agreement for such Service.
This Section 8.1 sets forth OnTheClock’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.
- Indemnification by Customer. Customer shall defend, indemnify, and hold harmless OnTheClock, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (i) alleging that Customer’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (ii) relating to, or arising from, Customer Information or Customer’s breach of Section 2.3 or Section 7.1; or (iii) relating to, or arising from, Customer’s use of any Third-Party Supported Platforms (including Customer’s breach of any terms or conditions applicable to any Third-Party Supported Platforms).
- Indemnification Procedure. The indemnified Party shall (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.
- Limitation of Liability.
CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE APPLICABLE SERVICE LEVEL AGREEMENT (ATTACHED AS EXHIBIT 2). EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL ONTHECLOCK'S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, AS PRO-RATED BASED UPON THE FEES FOR THE THEN CURRENT TERM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ONTHECLOCK, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL ONTHECLOCK BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF ONTHECLOCK WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF ONTHECLOCK FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ONTHECLOCK, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF ONTHECLOCK OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
CUSTOMER AGREES THAT CUSTOMER WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST ONTHECLOCK ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. CUSTOMER FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF ONTHECLOCK’S SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Assignment. Neither Party may assign nor otherwise transfer any of its rights nor obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, OnTheClock may assign this Agreement in its entirety, without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets.
- Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
- Publicity. Customer agrees that OnTheClock may use Customer’s name and logo and may disclose that Customer is a customer of the Services in OnTheClock advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants OnTheClock a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as a OnTheClock customer on OnTheClock’s website.
- Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
- Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
- Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
- Notices. For purposes of service messages and notices about the Services, OnTheClock may place a banner notice across the Services or website to alert Customer. Alternatively, notice may consist of an email from OnTheClock to an email address associated with Customer’s account, even if OnTheClock has other contact information. For communication about Customer’s account and services associated with OnTheClock, OnTheClock may contact Customer or its Authorized Users through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that OnTheClock shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to OnTheClock must be delivered by email to firstname.lastname@example.org with a duplicate copy sent via registered mail to the following address: OnTheClock.com LLC, 19176 Hall Road, Suite 260 Clinton Township, MI 48038; Attention: Legal. This contact information provided may be updated by giving notice in accordance with this Section 10.8.
- Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
- Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Michigan. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Macomb County, Michigan, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Macomb County, Michigan, such personal jurisdiction shall be nonexclusive.
- Binding Arbitration. It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. The arbitration will be conducted in Macomb County, Michigan, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Employment Arbitration Rules’ expedited procedures for resolution. Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Michigan, and only such power, and shall follow the law. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to costs and attorneys’ fees.
- Class Action Waiver. YOU AND ONTHECLOCK ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE OR CONSOLIDATED PROCEEDING. UNLESS WE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. ANY CHALLENGE TO THE VALIDITY OF THIS CLASS ACTION WAIVER SHALL BE DETERMINED EXCLUSIVELY BY A COURT AND NOT BY THE ADMINISTRATOR OR ANY ARBITRATOR. IF THERE IS A FINAL JUDICIAL DETERMINATION THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE WAIVER CONTAINED IN THIS PARAGRAPH AS TO ANY CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY, THEN THAT CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY, AND ONLY THAT CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY, WILL BE SEVERED FROM THIS AGREEMENT TO ARBITRATE AND WILL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION. IN THE EVENT THAT A CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY IS SEVERED PURSUANT TO THIS PARAGRAPH, THEN YOU AND WE AGREE THAT THE CLAIMS, CAUSES OF ACTION OR REQUESTED REMEDIES THAT ARE NOT SUBJECT TO ARBITRATION WILL BE STAYED UNTIL ALL ARBITRABLE CLAIMS, CAUSES OF ACTION AND REQUESTED REMEDIES ARE RESOLVED BY THE ARBITRATOR.
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OnTheClock - SAAS AGREEMENT
EXHIBIT 2 - SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) is incorporated into the OnTheClock - SaaS Agreement, and made part of it. Terms not defined in this SLA have definitions set out in the Agreement. The remedies set out in this SLA are the Customer’s sole and exclusive remedy for issues covered by the SLA. OnTheClock may modify this SLA with prior notice to Customer.
Service Level Credit
Availability of the Services
The Services will be available to users for normal use 99.95% of the time each month, not including scheduled downtime. Scheduled downtime shall be for regular maintenance and upgrades, and shall usually take place on Sunday mornings between midnight and 4AM U.S. Eastern Time.
10% of the recurring monthly charge for the month of the failure.
In the event of unscheduled downtime the system shall be restored and fully operational within 48 hours.
10% of the recurring monthly charge for the month of the failure.
Resolution of Critical Malfunction
Failure to comply with the requirements with respect to Critical Malfunctions in a month.
“Critical Malfunction” is defined as a severe and disruptive failure or error in the Services that results in the Services becoming unavailable or inaccessible to the customer or users. This type of malfunction typically affects the core functionality of the Services and prevents the customer from using the service for its intended purpose. Examples of Critical Malfunctions include a complete system outage, loss of data, inability to log in, or other major functionality issues that significantly impact the customer's ability to use the Services. For a malfunction to be considered "Critical," it must meet the following criteria:
- It must prevent the customer from using the Services for its intended purpose.
- It must affect a significant portion of the customer's usage of the Services.
- It must not be caused by the customer's own actions or systems.
10% of the recurring monthly charge for the month of the failure.