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End User Subscription Agreement

LAST UPDATED: June 10, 2024

This End User Subscription Agreement (this “Agreement”) governs your (“Customer” or “You”) purchase, access, and use of Products provided by Timeplus Inc. and/or its subsidiaries (as applicable) (collectively, “Timeplus” or “us” or “we”) listed in an Order (defined below). In order to use or receive the benefits of any Product, you must purchase the applicable Product through an Order. If we introduce new Products in the future, such Products will be governed by this Agreement, depending on their Product category. If You are receiving access to or use of Evaluation Products (defined below), then You may only use the Evaluation Products for Your own internal evaluation purposes during the Evaluation Period (defined below) in accordance with Section 2.1.3 below.

IF YOU HAVE ARRIVED AT THIS PAGE DURING THE PROCESS OF INSTALLING, DOWNLOADING, ACCESSING, OR DEPLOYING A PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT BY PROCEEDING WITH THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE OF THE PRODUCT, OR BY CLICKING “SIGN UP,” “I AGREE,” “SUBMIT”, OR THE LIKE INDICATING ACCEPTANCE ELECTRONICALLY, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD OUR PRIVACY NOTICE. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE FOREGOING, DISCONTINUE THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE. IF YOU PROCEED WITH INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER.

This Agreement may be periodically updated and the current version will be posted at timeplus.com/eusa. Your continued use of the Products after a revised Agreement has been posted constitutes your acceptance of its terms.

Certain Definitions

  1. Applicable Law(s)” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.

  2. Authorized User” means Customer’s employees, agents, and consultants to use the Products on Customer’s behalf.

  3. Documentation” means product documentation provided by Timeplus in connection with the applicable Products, as updated by Timeplus from time to time.

  4. Order” means a written order, purchase order, or similar ordering or confirmation document for Products agreed to by the parties and which is governed by the terms and conditions of this Agreement and Documentation.

  5. Products” means, collectively, the SaaS and Software, as applicable.

  6. SaaS” means Timeplus’s online web-based application provided by Timeplus, including Timeplus Cloud.

  7. Software” means Timeplus’s on-premise software, including Timeplus Enterprise.



Provision of Products and Documentation

  1. Products

    1. Software. If use of Software is identified in an Order, during the Subscription Term and subject to the terms herein (including any usage limitations set forth in the Order), Timeplus hereby grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 11.1) license, without the right to sublicense, to: (a) install and use the Software solely for Customer’s internal use by Authorized Users and (b) use the Documentation solely for Customer’s internal use in connection with Customer’s use of the Software.
       

    2. SaaS. If use of SaaS is identified in an Order, (a) Timeplus hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11.1) right to access and use the SaaS during the Subscription Term for its internal business purposes, solely for use up to the number of Authorized Users set forth in the Order in accordance with the Documentation and the terms and conditions herein, and (b) Timeplus will make commercially reasonable efforts to provide Actual Availability for the SaaS at least ninety-nine and nine tenths percent (99.9%) of the total time in each calendar month during the Subscription Term, as measured by Timeplus. As used herein:
       

      1. “Actual Availability” means Scheduled Availability less Unscheduled Downtime.

      2. “Scheduled Availability” means the time, in minutes, that the applicable SaaS are generally accessible and available to Customer’s Permitted Users.

      3. “Unscheduled Downtime” means the time, in minutes, that the applicable SaaS are not generally accessible and available to Customer’s Permitted Users, excluding inaccessibility or unavailability due to Customer’s or Permitted Users’ acts or omissions, force majeure events, scheduled maintenance disclosed with at least 24 hours’ notice by email, hacking or virus attacks, or reasonable emergency maintenance.
         

    3. Evaluation Products. From time to time, Timeplus may make available certain Products, including Timeplus Workspace, Timeplus Demo, and other software of Timeplus, available for proof of concept, beta testing, interactive demo, or other similar evaluative purposes (“Evaluation Products”).  Customer shall only access and use the Evaluation Products for internal evaluation purposes for a period up to thirty (30) days from the date of first access to the Evaluation Products, unless otherwise agreed to by the parties in writing (the “Evaluation Period”). At the end of the Evaluation Period, (a) You must delete all Products and other components (including Documentation) related to the Evaluation Products, or You may be invoiced for the then-current list price for the Evaluation Products, (b) Customer Inputs will be deleted pursuant to Timeplus’s standard retention and deletion periods, unless otherwise agreed to by the parties, and (c) if you are evaluating SaaS, Timeplus may disable access to the SaaS automatically without notice to You. For any Evaluation Products, only Sections 2, 3, 7, 8.4, 9, 10, and 11 and the applicable definitions of this Agreement shall apply.
       

  2. Customer License. Customer hereby grants to Timeplus during the Subscription Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to use the Customer Inputs as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Products to Customer) and for such other purposes identified in the Timeplus Privacy Notice, available at https://www.timeplus.com/privacy-policy, as it may be updated by Timeplus from time to time.
     

  3. Restrictions. Customer will not use the Products, any Evaluation Products (if applicable), or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or copy the Products, any Evaluation Products, or Documentation, in whole or in part, except as permitted hereunder; (b) use the Products, any Evaluation Products, or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Products or any Evaluation Products or any copy of the foregoing to any third party; (d) misappropriate any data or information from the Products, any Evaluation Products, or Documentation; (e) gain any unauthorized access to the Products, any Evaluation Products, or Documentation for any other purpose; (f) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Products, any Evaluation Products, Documentation, or any security technology, software, or rights management information contained therein or in any software used to enable the foregoing; (g) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Products, any Evaluation Products, or Documentation; (h) use the Products, any Evaluation Products, or Documentation for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Products; (i) exploit the Products or any Evaluation Products in any unauthorized way whatsoever; (j) attempt, or encourage or assist any third party to do, any of the foregoing; (k) use any automated or programmatic method to extract data or Output from the Products or Evaluation Products, including scraping, web harvesting, or web data extraction; or (l) represent that Output from the Products or any Evaluation Products was human-generated when it is not.
     

  4. Open Source and Third Party Software. The Products may contain or be provided with certain third-party software modules and components (“Third-Party Components”) that are subject to separate or additional terms and conditions, which are solely between Customer and the applicable third party. With respect to any software modules and components offered under the terms and conditions of “open source” software licenses (“Open Source Components”), all use by Customer of such Open Source Components is governed by, and subject to, the terms and conditions of the open source software license applicable to the Open Source Component and not this Agreement.
     

  5. Reservation of Rights. Timeplus reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Products or Documentation.
     

  6. Delivery of Software. If Customer selects use of the Software in any given Order, Timeplus will make available to Customer the Software electronically in a form and via a method determined by Timeplus that is reasonably acceptable to Customer (e.g., preinstalled on a virtual machine or container, in object code form, or another method). Customer acknowledges that the term “Software” as used in this Agreement does not include Third-Party Components and Open Source Components that may be delivered by Timeplus in combination with the Software.
     

  7. Customer Responsibilities. Customer is responsible and liable for all uses of the Products and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including any Customer Inputs. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Products and Documentation and will cause Authorized Users to comply with such provisions.
     

  8. Support. Timeplus will provide commercially reasonable support to Customer in accordance with its then-current support policies generally available to Timeplus customers via the Timeplus website: https://docs.timeplus.com/getting-help.

     

Ownership and Data Rights
 

  1. Ownership. As between Timeplus and Customer, Customer owns all right, title and interest in and to any and all of its data, algorithms, methodologies, software code, and other information Customer provides, posts, uploads, publishes, transmits or distributes on or through the Products (“Customer Inputs”) and any data provided to Customer by the Products (the “Output”), including all intellectual property and other proprietary rights therein and thereto. As between Timeplus and Customer, Timeplus owns all right, title and interest in and to the Products, Documentation, and Usage Data, including all intellectual property and other proprietary rights therein and thereto. Customer may choose to, or Timeplus may invite Customer to, submit comments or ideas about Timeplus’s products and services, including the Products and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Timeplus under any fiduciary or other obligation, and that Timeplus is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Timeplus does not waive any rights to use similar or related ideas previously known to Timeplus, or developed by its employees, or obtained from sources other than Customer.
     

  2. Usage Data. Timeplus may collect, maintain, process and use, or Customer may provide to Timeplus, diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software (“Usage Data”). Customer agrees that all Usage Data is owned solely and exclusively by Timeplus, and Timeplus accordingly may use such Usage Data for any lawful purpose, including to: (a) provide and maintain the Products for Customer; (b) develop and improve the Products; (c) monitor Customer’s usage of the Products; (d) for research and analytics and for Timeplus’s other business purposes; and (e) share analytics and other derived Usage Data with third parties solely in deidentified or aggregated form. The Products may contain technological measures designed to prevent unauthorized or illegal use of the Products. Customer acknowledges and agrees that Timeplus may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Timeplus’s rights, including all intellectual property rights, in and to the Products.

     

Maintenance of Software
 

If Customer selects use of the Software in any given Order, during the Subscription Term, Timeplus will provide Customer with updates, upgrades, releases, or other adaptations or modifications of the Software, including any updated Documentation, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software (“Maintenance Releases”) that Timeplus may, in its sole discretion, make generally available to its customers at no additional charge. All Maintenance Releases provided by Timeplus to Customer are deemed Software. Customer will install all Maintenance Releases as soon as practicable after receipt and in any event, Customer will not use any release of the Software that is more than three (3) calendar months older than the then-most-current release of the Software.

 

Fees; Payment

 

  1. Fees. Customer shall pay all amounts payable to Timeplus under this Agreement (the “Fees”) Net thirty (30) days unless otherwise specified in the applicable Order. Unless otherwise set forth in this Agreement or the applicable Order or as required by Applicable Law, all Fees or other amounts owed to Timeplus are non-refundable and shall be paid in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as required by Applicable Law).
     
  2. Late Payments. Overdue payments are subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Timeplus harmless from and against any costs incurred in connection with collecting Fees or interest properly due hereunder. If such failure to pay continues for thirty (30) days following written notice thereof, Timeplus may: (a) withhold, suspend or revoke its grant of a license hereunder; and/or (b) terminate this Agreement under Section 6.2.
     

  3. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Timeplus’s net income. If Timeplus has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Timeplus with a valid tax exemption certificate authorized by the appropriate taxing authority.

     

Subscription Term and Termination

 

  1. Start Date and Subscription Term. Unless earlier terminated in accordance with this Section 6, this Agreement begins on the start date set forth in the applicable Order and continues for the subscription term in as provided in such Order (“Subscription Term”).
     

  2. Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
     

  3. Effect of Termination. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer will immediately terminate, and Customer will: (i) immediately cease all use of and other activities with respect to the affected Products and Documentation; (ii) within seven (7) days, return to Timeplus or, upon Timeplus’s request, destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Products and Documentation and, at Timeplus’s request, Timeplus’s Confidential Information and materials containing any Confidential Information of Timeplus; and (iii) deliver to Timeplus a certification, in writing signed by a duly authorized representative of Customer, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued; provided, however, that neither Customer nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination; and (b) all amounts payable by Customer to Timeplus of any kind are immediately payable and due no later than seven (7) days after the effective date of the expiration or termination of this Agreement. If Timeplus terminates this Agreement pursuant to Section 6.2, Timeplus will not refund to Customer any Fees prepaid by Customer for time remaining during the Subscription Term. If Customer terminates this Agreement pursuant to Section 6.2(a), Timeplus will provide to Customer a refund of Fees prepaid by Customer for time remaining during the Subscription Term.
     

  4. Survival. Sections 1, 2.7, 3, 5, 6.3, 6.4, 7 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 8.3, 8.4, 9, 10 and 11 shall survive termination of this Agreement.

     

Confidentiality

 

Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Products, the Documentation, the Usage Data, and the terms of this Agreement shall be Timeplus’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information, using at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto. Each party agrees and acknowledges that any breach or threatened breach of this Section 7 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

Representations and Warranties

 

  1. Performance Warranty; Sole and Exclusive Remedy. Subject to the limitations and conditions set forth in Section 8.2, Timeplus hereby represents and warrants to Customer that, during the Subscription Term: (a) the Products will substantially conform to the applicable Documentation (the “Performance Warranty”); (b) Timeplus will use reasonable efforts consistent with industry standards designed to ensure that no viruses, spyware, malware, or similar items will be coded or introduced into the Products; and (c) Timeplus will perform any professional services described in the applicable Order (“Professional Services”) using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Customer’s sole and exclusive remedy for Timeplus’s breach of its Performance Warranty will be for Customer to submit a support request within thirty (30) days following the date the Performance Warranty was allegedly breached and for Timeplus to respond to and resolve such request in accordance with the Service Levels. The limited warranty set forth in this Section 8.1 will apply only if Customer, as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing).
     

  2. Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 8.1 does not apply to problems arising out of or relating to: (a) Products that are modified or damaged by Customer or its representatives; (b) any operation or use of, or other activity relating to, the Products other than as specified in the Documentation applicable to the particular Product, including any incorporation in the Products of, or combination, operation or use of the Products in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation applicable to the particular Product; (c) Customer’s failure to promptly install all Maintenance Releases that Timeplus has previously made available to Customer (provided that Timeplus will continue to provide support with respect to Software released twelve (12) calendar months immediately prior to the then-most-current release of the Software); (d) the operation of, or access to, Customer’s or a third-party’s system or network; (e) any Evaluation Products, including beta software, software that Timeplus makes available for testing or demonstration purposes, temporary software modules, or software for which Timeplus does not receive a license fee; (f) Customer’s breach of any provision of this Agreement; or (g) a Force Majeure Event.
     

  3. Customer Representations and Warranties. Customer represents and warrants that: (a) its use of the Products and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access and/or use its Customer Inputs, including any personal information therein, and any other content it provides, receives, accesses and/or uses through or in connection with the Products or Documentation; (c) it is solely responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with the Customer Inputs; and (d) the Customer Inputs and Timeplus’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including any intellectual property right or privacy right, (ii) any liability from Timeplus to any third party, or (iii) the payment by Timeplus of any fees to any third party.
     

  4. DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE PRODUCTS, EVALUATION PRODUCTS, OUTPUT, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND TIMEPLUS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, OF MERCHANTABILITY, OR THAT THE PRODUCTS, THE EVALUATION PRODUCTS, THE OUTPUT, THE PROFESSIONAL SERVICES, OR ANY RESULTS OF OR THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ADDITIONALLY, TIMEPLUS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS AND ITS AUTHORIZED USERS’ INTERACTIONS AND SHARING OF INFORMATION WITH OTHER USERS. TIMEPLUS RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR DISPUTES BETWEEN CUSTOMER AND OTHER USERS WITHIN THE PRODUCTS. TIMEPLUS EXPRESSLY DISCLAIMS ALL LIABILITY ARISING FROM CUSTOMER’S OR ITS AUTHORIZED USERS’ INTERACTIONS WITH OTHER USERS, OR FOR ANY USER’S OR END USER’S ACTION OR INACTION, INCLUDING RELATING TO USE OF OUTPUT.

     

Indemnification

 

  1. Customer Indemnification. Customer shall defend, indemnify, and hold harmless Timeplus and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys’ fees) arising from or relating to: (a) Customer Inputs; or (b) Customer’s or its Authorized Users’: (i) use of and access to the Products in a manner inconsistent with this Agreement and Documentation; (ii) breach of Section 2 or 8.3; or (iii) Customer’s violation of Applicable Law; or (iv) Customer’s or its Authorized Users’ negligence or willful misconduct.
     

  2. Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent the Indemnified Party is materially prejudiced); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in defense and settlement of the claim.

     

Limitation of Liability

 

  1. Liability Caps. EXCEPT WITH RESPECT TO TIMEPLUS’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL TIMEPLUS’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO TIMEPLUS HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
     

  2. Damages Waiver. NEITHER TIMEPLUS NOR ITS LICENSORS WILL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
     

  3. Customer Acknowledgment. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

     

Miscellaneous

 

  1. Assignment. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, Timeplus shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 11.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
     

  2. Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than Customer’s payment obligations) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 11.2 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
     

  3. Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within San Francisco, California. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by the American Arbitration Association (“AAA”), under the Expedited Procedures then in effect for AAA, except as provided herein. The arbitration will be conducted in San Francisco, California, unless otherwise agreed. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 11.3 shall be deemed as preventing either party from seeking injunctive, equitable or other relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
     

  4. Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect.
     

  5. Publicity. Customer hereby grants to Timeplus during the Subscription Term a non-exclusive, royalty-free, non-sublicensable license to use the trade names, trademarks, service marks, trade dress, logos and other rights in indicia (“Marks”) of Customer in Timeplus’s advertising, literature and websites to identify Customer as a current or former Timeplus client or affiliate, including the right to use quotes from Customer’s Authorized Users regarding their satisfaction with Timeplus, the Products or Evaluation Products. Customer has no right to use Timeplus’s Marks.
     

  6. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to Timeplus must be sent to legal@timeplus.io.
     

  7. U.S. Government Restricted Rights. If the Products are being licensed by the U.S. Government, the Products are commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
     

  8. Export Law Assurances. Customer understands that the Products are or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PRODUCTS OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE PRODUCTS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
     

  9. Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
     

  10. Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
     

  11. General. In the event of any conflict between the terms of this Agreement and an Order, the order of precedence shall be (a) Order; and (b) the terms of this Agreement, in order of appearance. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement (including prior agreements between Customer and Timeplus), and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, will refer to this Agreement as a whole and not to any particular provision of this Agreement. Terms defined in the singular will have correlative meanings when used in the plural, and vice versa. The headings herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a section, exhibit or schedule, such reference will be to a Section or Exhibit to this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation,” unless preceded by the word “not.”

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