Last modified January 12, 2021
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS PRODUCT. BY CLICKING THE ACCEPTANCE BUTTON AND/OR INSTALLING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES YOU DO NOT ACCEPT THE TERMS, AND DO NOT INSTALL THE SOFTWARE.
This End User Agreement (“Agreement”) sets forth the terms and conditions of your use of the accompanying Time Clock Go software (“Software”). For the purposes of the Agreement, “you” means you, the end user, and “Licensor” and “TCG” means Timespan, Inc. d/b/a Time Clock Go and its subsidiaries and affiliates.
You agree that you have no right, power, or authority to make any modifications to or unauthorized copies of the Software. You may install one (1) copy of the Software and Documentation to one (1) device and one (1) computer or workstation. Otherwise, the Software and Documentation may be copied only as essential for backup or archive purposes. You must reproduce and include all copyright notices and any other proprietary rights notices appearing on the Software and Documentation on any copies that you make.
2. No Assignment; No Transfer. You agree not to transfer or assign the Software and/or the Agreement to another party without the prior written consent of Licensor, such consent being at Licensor’s sole an absolute discretion. If such consent is given and you transfer or assign the Software and/or the Agreement, then you must at the same time either transfer any copies of the Software and Documentation to the same party or destroy or return to Licensor any such materials not transferred. Except as set forth above, you may not transfer or assign the Software or rights under the Agreement.
3. No Modification; No Reverse Engineering. You agree not to modify, translate, reverse engineer, decompile, disassemble, “unlock”, decode, or create derivative works of, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Software, or assist someone in performing such prohibited acts. Additionally, without limiting the foregoing, except as expressly permitted in the Agreement you may not, without the prior written permission of Licensor: (i) share or use concurrently more than one (1) installation or copy of the Software on more than one (1) device and one (1) computer or workstation; (ii) use, copy, modify, or merge copies of the Software and any accompanying Documentation; (iii) copy or remove any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels on, or embedded in the Software; or (iv) transfer, rent, lease, or sublicense the Software.
4. Import/Export Restrictions. You agree not to import or export the Software or any Documentation (or any copies thereof) or any products utilizing the Software or any Documentation in violation of any applicable laws or regulations of the United States of America. You agree to comply with such laws and regulations to indemnify Licensor from liability if you violate any such laws or regulations.
5. Title. This is a license agreement and not an agreement for sale. You agree that Licensor owns and holds title to the Software (including source code) and any Documentation and all subsequent copies thereof regardless of the form or media. Furthermore, title, ownership rights, and intellectual property rights in the Software and any Documentation shall remain with Licensor. The Software and any Documentation are protected by copyright and other intellectual property laws and by international treaties. Licensor retains all rights not expressly granted to you in the Agreement.
6. Security. You understand and agree that the Software contains valuable trade secrets belonging to, and is confidential and property of, Licensor. You agree that you shall use all reasonable precautions to protect the confidentiality of the Software and that you will not disclose, provide, or otherwise make available the Software, or any proprietary or confidential information relating to the Software, to any other party or permit others to use it, except other employees and agents of your enterprise that are made subject to the terms and agreement of the same Master Service Agreement and related Order Form(s).
8. No Warranties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, QUITE ENJOYMENT, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” EXCLUSIVE OF ANY WARRANTY WHATSOEVER AND ARE AVAILABLE FOR USE AT YOUR OWN AND EXCLUSIVE RISK. UNLESS OTHERWISE PROVIDED IN THE AGREEMENT, LICENSOR DOES NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SOFTWARE AND DOES NOT MAKE ANY COMMITMENTS REGARDING THE SPECIFIC FUNCTIONS OF ANY SOFTWARE OR SUCH SERVICES’ RELIABILITY, THE SECURITY OF ANY SOFTWARE OR ANY TELECOMMUNICAITON SERVICE FROM WHICH YOU ACCESS OR USE THE SOFTWARE, AVAILABILITY, ACCURACY, RELIABILITY, NON-INTERFERENCE, NON-INFRINGEMENT OF ANY INTELLECUTAL PROPERTY RIGHTS, ERROR RATE, OR ABILITY TO MEET YOUR NEEDS. FURTHER, LICENSOR AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU DUE TO APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE LIMITED T0 SIXTY (60) DAYS FROM THE DATE YOU ACQUIRE THE SOFTWARE.
THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, PRENATAL OR OTHER SURGICAL OR MEDICAL CARE SYSTEMS, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, PHYSICAL OR EMOTIONAL IMPAIRMENT, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH-RISK ACTIVITIES”). LICENSOR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
10. Limitation of Remedies. UNDER NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY SHALL LICENSOR, OR ITS SUBSIDIARIES, AFFILIATES, LICENSORS, RESELLERS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, BE LIABLE OR RESPONSIBLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, ACTUAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LITIGATION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN), YOUR USE OF THE SOFTWARE, OF THE CONTENT OF TCG’S WEBSITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR LICENSOR WAS NEGLIGENT. IN NO EVENT SHALL LICENSOR’S LIABILITY EXCEED THE GREATER OF $100.00 AND THE AMOUNT PAID BY YOU FOR YOUR USE OF THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
No claim or action, regardless of form, arising out of or relating to the Agreement, or the negotiation, validity or performance of the Agreement, or the transactions contemplated hereby, may be brought by you more than one (1) year after the events which gave rise to the claim or action became known.
You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in the Agreement that directly conflict with such laws may not apply to you.
12. Mobile Application Rules.
a. App Store®. If you use TCG’s app or download any program it offers through the App Store®: (i) you acknowledge that the Agreement is solely between you and Licensor, not Apple® or any of its affiliates, and that Apple® has no responsibility for TCG’s products or content, including any maintenance or support services; (ii) your use must comply with the App Store ® Terms of Services; (iii) in the event of a failure with TCG’s app, you may contact Apple® for a refund of the purchase price, as applicable, but to the maximum extent permitted by law, Apple ® will have no other warranty obligations; (iv) you acknowledge that Apple® is not responsible for addressing your claims related to TCG’s app or use of the app, including product liability claims, claims related to legal compliance of the app, and claims related to consumer protection or similar laws; (v) you acknowledge that in the event of any infringement by TCG’s app of any third-party intellectual property rights that TCG, and not Apple®, is responsible for any investigation, defense, settlement, and discharge; and (vi) you agree that Apple® and its subsidiaries are third-party beneficiaries to these terms as it relates to your license of TCG’s app on the App Store ® and that upon acceptance of these terms, Apple® will have the right to enforce the terms as it relates to your license of TCG’s app.
b. Google Play™. If you use TCG’s app or download any program it offers through the Google Play™ store: (i) you acknowledge that the Agreement is solely between you and TCG, not Google™ or any of its affiliates, and that Google™ is only a provider of the Google Play ™ store and that Google™ and its affiliates have no responsibility or liability for Licensor’s products or content, including any maintenance or support services; (ii) you must use TCG’s app in compliance with the then current Google Play ™ store Terms of Service; and (iii) you acknowledge that Google™ is a third-party beneficiary to these terms as it relates to your license of TCG’s app on the Google Play™ store.
13. Governing Law. The laws of the state of Arizona shall govern the construction of the Agreement without regard to choice of law principles. You agree to be subject to personal jurisdiction in the state of Arizona for the purposes of enforcing the provisions of the Agreement. You also agree that any dispute arising out of or relating to this agreement must be litigated in the applicable state or federal court located in Maricopa County, Arizona , in the United States of America. YOU FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, OR ACTION ARISING FROM OR RELATING TO THE TERMS OF THE AGREEMENT.
14. Attorneys’ Fees. If any party herein commences any legal or equitable action or proceeding, including, without limitation, an action for declaratory relief or for any other form of relief to enforce, interpret, rescind, or in any other manner effect the provisions of the Agreement, or for breach of the Agreement, then the prevailing party shall be entitled to recover its reasonable attorneys’ fees, experts’ fees, and court costs (including, but not limited to attorneys’ fees and costs incurred in collecting on any judgment), which may be set by the court in the same action (including any appellate action which may be brought in connection with such action) or in any separate action brought for that purpose, in addition to any other relief to which the prevailing party may be entitled.
17. Severability. In the event any provision of the Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
19. Force Majeure. Licensor shall not be liable hereunder for any failure or delay in the performance of its obligations under the Agreement if such failure or delay is on account of causes beyond its control, including labor disputes, internet or telecommunication breakdowns, denial of service attacks, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event Licensor shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.
20. Interpretation. The Agreement shall not be interpreted for or against any party, but in accordance with its plain meaning.
21. Entire Agreement. You further agree that the Agreement, including all items incorporated herein, is the complete and exclusive agreement between you and Licensor which supersedes all proposals or prior agreements, oral or written, and all other communications between you and Licensor relating to the subject matter of the Agreement.
22. Changes to Terms. You understand that Licensor’s services and the Software are evolving. As a result, from time to time, Licensor may in its sole discretion make changes to the Software, the Agreement and other applicable agreements as set forth in Section 23 below. If you do not accept the applicable changes, you will not be able to access the Software; instead, you will be required to deactivate your account and stop accessing and using Licensor’s Software. By continuing to use the Software after any updated terms become effective, you are representing to Licensor that you agree to the updates.