Terms of Service
Customer Service Agreement
Revised: August 5, 2008
This agreement (this "Agreement") is by between ClickTime.com, Inc., a California corporation, ("ClickTime") and any customer or other user ("Customer") of ClickTime's time-tracking service (the "Service"). All terms and conditions of this Agreement are set forth in this Terms of Service document and in the Service activation page (the "Activation Terms") executed by both parties. This Agreement is effective upon execution of the Activation Terms by both parties, Customer's electronic execution of the Activation Terms at the ClickTime.com Website (the "Website"), or Customer's activation of a demo account.
(a) ClickTime will provide the Service pursuant to its then-standard policies and procedures. ClickTime may change Service features and functionality from time to time and will post notice of any such change on the Website.
(b) If Customer uses the Service pursuant to a demonstration account, no provision of this Agreement related to fees will apply, and this Agreement will not include Activation Terms. ClickTime may terminate a demonstration account at any time. Upon execution of Activation Terms, the demonstration account will be replaced by a standard account, and the provisions of this Section 1(c) will no longer govern.
(a) Customer will pay ClickTime's standard fees for use of the Service, or such other fees as are set forth in the Activation Terms, including without limitation startup fees, fees for any minimum number of users authorized to access the Service (minimum number of "Seats") pursuant to the Activation Terms, and per-Seat fees. All payments will be in U.S. dollars unless otherwise agreed by both parties in advance. All payments are due within 30 days of invoice. On all amounts past due, Customer will pay an interest charge of 1.5% per month, or the maximum rate permitted by California law, to compensate ClickTime for the time-value of the unpaid fees. Customer will be liable for all collection fees arising from ClickTime's efforts to collect unpaid balances.
(b) Customer will pay monthly or on such other basis as is set forth in the Activation Terms, and ClickTime may invoice customer in electronic or paper form, including without limitation by posting electronic invoices through the Service. If the Activation Terms permit credit card payment, ClickTime may charge fees on their due dates directly to Customer's credit card. A returned check or declined charge attempt constitutes a material breach of this Agreement.
(c) Customer agrees to pay all state and local sales, use, or other taxes arising from Customer's use of the Service. ClickTime may include such taxes in its invoices.
(d) If Customer reactivates an account that was previously deactivated due to non-payment, Customer will pay ClickTime's then-standard reactivation fee.
(e) ClickTime will not be required to refund or credit any amounts paid or prepaid as a result of any failure of the Service or for any other reason.
3. Use of Service and Software.
(a) As used herein, "Software" refers to any software incorporated into or used by the Service. Without limiting ClickTime's rights or remedies, Customer will not: (i) reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code; (ii) reproduce, modify, distribute, or sublicense the Software; (iii) use the Software or Service for service bureau or time-sharing purposes or in any other way allow third parties to use or access the Software or the Service; or (iv) use the Software or the Service in any way not expressly authorized by this Agreement.
(b) Customer acknowledges that the Services is not intended for permanent storage and agrees not to use the Service for archiving or back-up purposes. Customer will not store "mission critical" data on the Service, including without limitation data pertaining to power generation, military or national security, or any function to sustain or rescue the health or well-being of any person.
(c) ClickTime may interrupt the Service to perform extraordinary maintenance or to address and/or mitigate the effects of security breaches and other Service faults, without liability to Customer.
(d) From time to time, ClickTime may add new features to the Service that are described as "beta" ("Beta Features"). In addition to the disclaimers of liability provided in Section 5 below and elsewhere in this Agreement: (i) Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional; (ii) Customer uses any Beta Feature at its own risk; and (iii) Customer will back-up all data it adds to the Beta Features and will not rely on the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Subsection 3(c), the Beta Features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta Features.
4. Security, Access, and Acceptable Use.
(a) Customer will promptly notify ClickTime of any unauthorized access to or use of Customer data or passwords and will cooperate in any related remedial efforts or in collaborating with law enforcement agencies.
(b) ClickTime has no obligation to monitor the Service. ClickTime has the right to monitor the Service and to disclose any information arising out of it, including without limitation Customer data, as necessary to satisfy any law, regulation, or demand or request of law enforcement agencies, other government agencies, or auditors or to protect ClickTime or its customers. ClickTime may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, or in violation of this Agreement. However, ClickTime has no obligation to remove any such materials.
(c) Customer will not use the Service to transmit or store any data that may be considered obscene or pornographic, that contains defamatory material, or that violates federal, state, or local law.
(d) Customer will not disclose any account passwords to any third party not authorized to use the Service.
(e) Customer grants ClickTime the right to display Customer's name on its customer list, for marketing purposes. In the event that Customer's authorized representative requests removal of Customer's name from any such list, ClickTime will remove Customer's name from all materials, except those already distributed, reasonably promptly.
5. Limited Warranty; Limitation of Liability.
(a) THE SERVICES IS PROVIDED "AS IS" AND AS AVAILABLE. CLICKTIME MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No communication between Customer and ClickTime, written or oral, will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 5 or elsewhere in this Agreement. UNDER NO CIRCUMSTANCES WILL CLICKTIME BE LIABLE FOR LOST PROFITS OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE. IN NO EVENT WILL CLICKTIME'S LIABILITY FOR DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO CLICKTIME DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE. THE LIMITATIONS OF LIABILITY IN THIS SUBSECTION 5(a) AND IN SUBSECTION 5(b) BELOW APPLY EQUALLY TO LIABILITY FOR NEGLIGENCE.
(b) Without limiting the generality of Subsection 5(a) above, ClickTime will have no liability for any claims or losses resulting from security breaches, exposure of sensitive or private data (except to the extent that applicable law forbids limitation of such liability), or loss of data or access to data.
(c) ClickTime is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Service. ClickTime will not be liable for interruption of or delays in transmission of the Service caused by acts of God, terrorism, fire, water, riots, acts of Government, acts or omissions of Internet backbone providers, or any other causes beyond ClickTime's control.
(d) Customer's sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of ClickTime is to discontinue using the Service.
(e) Customer acknowledges and agrees that ClickTime has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and disclaimers of warranty set forth in this Section 5 and elsewhere in this Agreement, (collectively, the "Limitations"), and that the Limitations form an essential basis of the bargain between ClickTime and Customer. The Limitations survive and apply even if Customer's remedies provided in this Agreement are found to have failed of their essential purpose.
Customer will indemnify and hold harmless ClickTime and its affiliates, employees, officers, directors, agents, licensors, successors, and assigns from all damages and liability, including without limitation attorneys' fees, incurred as a result of:
(a) Customer's violation of its obligations under this Agreement,
(b) the negligent or willful acts of Customer, or
(c) the violation by Customer of any third party's rights in connection with the use or operation of the Service, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, other intellectual property rights, and claims for libel, slander, or unfair trade practices.
7. Termination and Cessation of Service.
(a) Either party may terminate this agreement at any time by written notice to the other. The following provisions of this Agreement will survive the termination of the Agreement for any reason: (i) Sections 5 and 6 above; (ii) Customer's payment obligations incurred before termination; and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.
(b) ClickTime may deny Customer access to all or part of the Service without advanced notice if ClickTime believes, in its sole discretion, that Customer may have violated any of the terms of this Agreement.
(a) This Agreement constitutes the entire Agreement between ClickTime and Customer regarding its subject matter and supersedes any prior or contemporaneous written or oral agreements between the parties regarding such subject matter, including without limitation any offer, purchase order, or similar instrument. ClickTime may revise this Agreement by posting a new version of this Terms of Service on the Website, and such revised terms will become effective 30 days after they are posted. Customer waives any right to notice of revised terms other than through the Website, and such waiver will remain in force even if ClickTime does ever provide notice by e-mail or another medium. Customer's continued use of the Service on or after the effective date of revised terms will constitute acceptance of such revised terms. Except as expressly provided in the preceding sentence, this Agreement may not be amended except through a written agreement signed by the duly authorized representatives of both parties.
(b) In the event of any conflict between the Activation Terms and these Terms of Service, the Activation Terms will govern.
(c) If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired.
(d) Customer is responsible and liable for use of the Service by its employees and other agents and by any third party accessing customer's account, including without limitation unauthorized third parties. Customer's rights in this Agreement are personal and not assignable. ClickTime may assign its rights and obligations under this Agreement to third parties.
(e) This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of San Francisco, California.
(f) Any claim arising out of or related to this Agreement will be submitted to mandatory, binding arbitration under the auspices of the American Arbitration Association in San Francisco, California, with the parties sharing equally the costs of arbitration. The preceding sentence does not limit either party's right to provisional or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any arbitration, and the exercise of any such remedy does not waive either party's right to arbitration.
(g) ClickTime's remedies provided in this Agreement are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement will not be deemed a waiver of any such right or remedy.
(h) No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.