Welcome to www.temforce.com and thank you for your interest in temforce (as defined below) (collectively, the “Product”). These Software and Service Terms of Service contain the terms and conditions that govern all use of the Product, the Services (as defined below) and all content, services and/or products available on or through the Product. temforce Services are offered to you subject to your acceptance without modification agreed by the Parties pursuant to these Terms of Service of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, the Suppliers’ Privacy Policy at (www.temforce.com/privacy), the Terms (as defined below) and any future modifications, and procedures that may be published from time to time on the Product or otherwise made available to you on or through the Services (collectively, the “Terms”). When accepted by you, these Terms form a legally binding contract between you and temforce (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN PLEASE DO NOT ACCESS, BROWSE OR OTHERWISE USE THE LISCNSED PRODUCT OR THE SERVICES. CLIENTS AND/OR USERS WHO VIOLATE THESE TERMS MAY HAVE THEIR ACCESS AND USER OF THE PRODUCT SUSPENDED OR TERMINATE, AT THE APPLICABLE OUR DISCRETION.
Software and Service Agreement
THIS AGREEMENT, which includes any Schedules and relevant Order Forms, is made by and between:
“(A) temforce a company whose registered office is at River Point, 444 W Lake Street, Suite 1700, Chicago, IL 60606, USA; and”
(B)(“USER”) WHEREAS:
User wishes to use such software products and accordingly, we have agreed to grant User a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to use the computer software programs, products and, other third party products, SaaS software and/or Services identified on an Order Form, together with associated documentation (if any) upon the terms and conditions of this Agreement.
Definitions and Interpretations:
1.1 In this Agreement unless the context otherwise requires:
“Activation” or “Activate” means the date on which either the Product or any New Release (i) is made available to User and is ready for information to be populated into the Product; or (ii) is deemed activated under Clause 5.
“Activation Date” means the date the Service was activated by the User.
“Additional Charges” means the additional charges for Services or miscellaneous services or deliverables agreed on an Order Form or incurred under a Schedule from time to time for work undertaken on an hourly, or time and materials basis or some other basis.
“Affiliate” means any other person controlling, controlled by or under common control where “control” and related terms means the ability to direct the affairs of temforce whether by means of the holding of shares, or the possession of voting power, by virtue of any powers conferred by its constitutional or corporate documents, or otherwise.
“Business Day” means any day other than Saturday and Sunday or public holiday in that location where the relevant notice is to be served or relevant activity performed.
“Confidential Information”means all information (in whatever format) designated as such by either party together with such information which relates to the business, affairs, finances, technology, source codes, customers, products, developments, trade secrets, knowhow and personnel of the other party, regardless of its nature, the contents of this Agreement and any information not designated as confidential but which may reasonably be regarded as the confidential information of the disclosing party and includes in respect of the Program Documentation.
“Event of Insolvency”means in relation to a party: (a) such party ceasing, or threatening to cease, to carry on business; (b) a liquidator, receiver, administrative receiver or similar officer being appointed over any of the assets or business of that party; (c) such party passing a resolution for its winding-up, otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity assumes all liabilities of such party; (d) such party entering into a voluntary arrangement with its creditors generally or any class of its creditors; (e) such party being or becoming unable to pay its debts as they fall due; or (f) such party being subject, under any foreign law, to any event that is similar or analogous to any of the foregoing.
“Fees” means individually or collectively, as the context requires, the Fee and any Additional Charges.
“General Terms” means the terms set out in the body of this Agreement.
“Initial Term” shall commence upon Activation.
“Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including patents, trademarks, service marks, trade names, registered designs, database rights, domain names, source code, and any applications for the protection or registration of such rights and all renewals or extensions thereof throughout the world.
“Key Code” means an alphanumeric code that may be issued by us to enable User to access the Product or other relevant products or services.
“Liability” means liability in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise arising under or in connection with this Agreement.
“User Fee” means the recurring fee for the use of the product granted in respect of the Product, as set out within (https://www.temforce.net/pricing/), and for the avoidance of doubt, includes any Maintenance Services, New Releases and the cost of the delivery of the Product (subject as provided in Clause 4.5).
“Product” means the SaaS software solution known as “Temforce” following Activation of the same, shall incorporate any New Release provided such New Release is made or issued pursuant to this Agreement.
“Maintenance Schedule” means the terms and conditions attached as Schedule 1 (Maintenance) to this Agreement, as from time to time.
“Maintenance Services” means the maintenance and support services detailed in the Maintenance Schedule.
“New Module” means any Product identified as providing substantial new features sufficient to be separately priced and launched as a separate module or any new software product that we so choose to launch.
“New Release” means any improved, modified or corrected version of the Product from time to time
“Order Form” means the signup form which can be found at (http://signup.temforce.net) for the provision of the Product, and/or Services and signed up to by the User.
“Program Documentation” means the instruction manuals, user guides and other operational information (if any) in either printed or machine-readable form from time to time made available to User at our discretion.
“Renewal Period” has the meaning ascribed to it in Clause 12.1.
“SaaS” means that the software Product is provided on a ‘software as a service’ basis and is hosted on our servers and may be accessed by User in accordance with the terms hereof.
“Services” means the provision of additional services under the terms of this Agreement over and above the Product and/or Maintenance Services which may include consultancy services, Trial Services, Third Party Products and/or other services agreed between the Parties and set out on in a signed Order Form.
“Site” shall mean the site owned and/or operated by or on behalf of User where the Product is accessed by the end user.
“Term” means the period from the Activation Date until termination of this Agreement.
“Third Party Additional Terms” shall mean such terms as which from time to time notify to User and which shall apply in respect of the relevant Third-Party Product and shall take effect as if set out herein.
“Third Party Product(s)” means any third-party Service(s) software or products, set out on an Order Form and identified as being a third party product.
“Third Party Product Supplier” means any third party identified on the Order Form that is not related to our company and who is providing Third Party Products either for a Trial Period and/or under separate or additional terms and conditions.
“Trial Period” means the set period of time set out as described online at (http://signup.temforce.com) and is a Service provided by us to User free of charge.
“Trial Services” means any Services or Third Party Product set out on an Order Form for a Trial Period.
“Use” means the, use, storage, access, display, running or otherwise interacting with the Product for the processing of the instructions contained in the Product.
1.2 Unless the context otherwise requires, words used in the singular include the plural and vice versa.
1.3 Reference to persons includes bodies corporate, unincorporated associations and partnerships.
1.4 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
1.5 The headings in this Agreement are inserted for convenience only and shall not affect the construction hereof.
1.6 References to a Clause, a Schedule or a party are references to a Clause of, a Schedule or party to this Agreement.
1.7 Any phrase introduced by the terms “without limitation”, “including”, “include” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
Grant
2.1 Subject to the terms and conditions hereof and in consideration of the payment by User to temforce of the Fee, temforce hereby grants to User use of temforce from the date of Activation and thereafter for the Term: (i) to Use the Product at the Site for User’s own internal business purposes.
2.2 For the purposes of Clause 2.1 Use of the Product shall be restricted to Use of the Product in object code form to process User’s data for the normal business purposes of User which shall not include allowing the use of the Product by, or for the benefit of, any person other than User confirms that it enters into this Agreement on its own behalf and not on behalf of any other person.
2.3 Risk in any tangible media on which the Product is delivered shall pass to User on delivery.
2.4 User shall maintain such security measures as would be expected from a reasonable and competent company within the same industry as User, including keeping passwords provided in connection with SaaS usage secure and not permitting access to or use of the same by a third party.
2.5 Except as expressly stated in this Clause 2, User has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Product in whole or in part except to the extent that any reduction of the Product to human readable form (whether by reverse engineering, de-compilation or disassembly) is necessary for the purposes of integrating the operation of the Product with the operation of other software or systems used by User and temforce is not prepared to carry out such action at a reasonable commercial fee or has failed to provide the information necessary to achieve such integration within a reasonable period. User shall not copy the Program Documentation other than as permitted under Clause 2.4.
2.6 User may not use information provided by temforce or obtained during a reduction permitted under Clause 2.8 to create any software whose expression is substantially similar to that of the Product nor use such information in any manner which would be restricted by any copyright subsisting in it. Any computer methodology, code and/or documentation that we create specifically for User under this Agreement and any pre-existing or future works created or used under this Agreement (including but not limited to the Product, Maintenance Services and/or other such Services, New Release or Third Party Products), in whole or in part, shall be owned exclusively by temforce and/or its Third Party Product temforce including all Intellectual Property Rights and any other proprietary rights therein. All Intellectual Property Rights or title incorporating third party owned items shall also belong to temforce.
Payment Terms and Fee
3.1 In consideration of the provision of the Product, the Maintenance Services and any other Services, User agrees to pay the Fee plus any applicable Additional Charges in accordance with this Agreement.
3.2 In consideration of the provision of the Product, the Maintenance Services and any other Services, User agrees to pay the Fee plus any applicable Additional Charges in accordance with this Agreement.
3.3 The Fee shall be invoiced in advance with the frequency indicated on the Order Form.
3.4 Additional Charges payable under this Agreement shall be invoiced in arrears as and when incurred.
3.5 User shall make payment of all invoices or automatic credit card payments in cleared funds within thirty (30) days of the date of the relevant invoice. All payments shall be made in the currency indicated on the Order Form.
3.6 All amounts payable by User hereunder shall be paid in full without any set-off and without reduction for any deduction or withholding for tax, duty or other similar charge imposed by any taxing or licensing authority. If User is required by law to make any such deduction or withholding, it shall pay such additional amount so that after such deduction or withholding the net amount received will be not less than the amount that would have received had such deduction or withholding not been required. User shall make the required deduction or withholding, shall pay the amount so deducted or withheld to the relevant authority and shall promptly provide evidence of such payment. If any taxing or other authority asserts any claim that User should have made a deduction or withholding User shall indemnify temforce and hold temforce harmless on an after tax basis, from and against any taxes, interest or penalties claimed against us.
3.7 The Fees are exclusive of any applicable sales tax, value added tax or duty, which if applicable, shall be invoiced at the then prevailing rate and payable by User in accordance with this Clause 3. Billing for partial months shall be pro-rata based on a calendar month.
3.8 We may charge interest on all overdue amounts (whether before or after judgment) at the annual rate of 15%, which interest shall accrue and be compounded daily.
3.9 In respect of late payment, we reserves the right to immediately: (i) suspend, remove or refuse access to the Product, Service, and/or any Key Code issued or to be issued, which may be reinstated only at our discretion and following receipt of full payment; and /or (ii) terminate this Agreement in accordance with Clause 12.2.2.
Delivery and Access
4.1 Subject to payment of any applicable Fees and to User’s compliance with its obligations as set out in Clauses 4.2 to 4.5 inclusive, below, we use reasonable commercial endeavors to provide access to the Product as soon as is reasonably practicable thereafter as notified to User. Save to the extent that we fail to use reasonable commercial endeavors as aforesaid, we shall have no Liability for a failure to provide the Product by any agreed or proposed date.
4.2 The Product is made available to User remotely on a SaaS basis: (i) User shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to our server location, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to User’s network connections or telecommunications links or caused by the internet; (ii) we shall endeavor to make the Product available on a 24/7 basis save where it needs to perform routine or emergency maintenance; and (iii) User shall be responsible for maintaining a back-up of User’s data processed by means of the Product.
4.3 The granted under this Agreement authorizes User to Use the Product subject to the limitations set out herein. Access to, and Use of, the Product shall be subject to compliance with the terms of this Agreement and any other terms, conditions and policies applicable to or governing access and use of the Product, which may from time to time be notified to User and are hereby deemed incorporated by reference
4.4 We shall be entitled to change the Product and/or this Agreement where such changes are required as a consequence of governmental, regulatory or third party action. We shall provide as much advance notice as is reasonably practicable under the circumstances.
4.5 Where any unauthorized Use of the Product occurs and such Use is attributable to the act or omission of User or its employees and representatives, then without prejudice to our other rights and remedies, User shall pay an amount equal to the fees that would be payable had such use been properly from the beginning of the unauthorized Use, together with interest thereon at the rate specified in Clause 3.
Testing and Assessment
User may (prior to Use or Activation of the Product) be provided with an opportunity to use trial the Product for a period of time for the sole purpose of testing and assessing whether the Product meets its requirements (and not for the purposes of its trade or business). Such time, use and evaluation shall be subject to the terms of this Agreement and any additional terms agreed in writing between the Parties and/or identified on the Order Form. Where we reasonably determines that the Product is being used in any manner other than for testing and assessment under this Clause 5, the Product shall automatically be deemed Activated.
Maintenance, new release and services
6.1 We shall, subject always to payment by User of the Fee and where relevant the Additional Charges, during the Term provide Maintenance Services in respect of the Product in accordance with Schedule 1 (Maintenance).
6.2 We may from time to time issue New Releases. Provided that User is in compliance with its obligations here under including as to payment, we shall make such New Releases available to User and User shall install such New Releases promptly. Nothing in this Agreement shall oblige us to provide New Modules.
6.3 We may for the Term provide to User certain additional Services upon agreement of a new Order Form, Additional Charges and, additional terms or where applicable, a Schedule.
6.4 To the extent specified in the relevant Order Form, Third Party Products may be provided to us for a Trial Period. Use of any Third-Party Product shall be subject to the Third-Party Additional Terms. User (i) hereby undertakes to comply with the Third Party Additional Terms for the benefit for us of the Third Party Product and hereby agrees that of the Third Party Product may enforce such Third Party Additional Terms against it directly; and (ii) hereby indemnifies us in respect of any breach of the Third Party Additional Terms and such breach shall be deemed a breach of this Agreement. User accepts that we shall have no Liability in respect of such Third Party Products other than to pass on any credits concerning performance of the Third Party Products that are available to us.
Proprietary Rights and Restrictions
7.1 The Product contains confidential information and all Intellectual Property Rights in and to the Product, Services, and Program Documentation remain the exclusive property of temforce.
7.2 User shall not:
- 1. enter into any arrangement with a third party the effect of which is to circumvent temforce in connection with the Services and Product and the intent of this Agreement;
- 2. modify, port, translate, localize or create derivative works of the Product or incorporate the Product into another platform, software application or software program except as expressly permitted under this Agreement or in writing; or
- 3. without the prior written consent from us: (i) deal in any other way with this Agreement or User’s rights and obligations hereunder; or (iv) alter any copyright or other proprietary notice on the Product or Program Documentation.
7.3 User shall:
- 1. keep confidential the Product and Program Documentation and limit access to the same to those of its employees agents and sub-contractors who either have a need to know or who are engaged in the Use of the same;
- 2. notify us immediately if User becomes aware of any unauthorized Use of the whole or any part of the Product by any person.
7.4. Save for the limited the Product set out in Clause 2.1, this Agreement grants no additional express or implied right or interest in any Intellectual Property Rights or other proprietary right of our business.
Warranty
8.1 We warrant that the Product will conform in all material respects to the Program Documentation for a period of ninety (90) days from the date of Activation (the “Warranty Period”). If, within the Warranty Period, User notifies us in writing of any defect or fault in the Product in consequence of which it fails to conform in all material respects to the Program Documentation, and such defect or fault does not result from User, or anyone acting with the authority of User, having amended the Product or used it outside the terms of this Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by us, or it has not been loaded onto specified or suitably configured equipment, we shall, at its sole option either: (i) repair the Product; (ii) replace the Product; or (iii) terminate this Agreement immediately by notice in writing to User and, on return of the Product and all copies thereof, refund any of the user Fee paid by User as at the date of termination less a reasonable sum in respect of User’s use of the Product to such date. This warranty shall be subject to and our obligations hereunder are conditional upon User providing all information necessary to assist us in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable us to re-create the defect or fault.
8.2 The warranty set out in Clause 8.1 represents our sole Liability in respect of and User’s sole remedy for any defect in or non-conformity of the Product with the Program Documentation and is given in lieu of all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, which are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.3 Without prejudice to the generality of Clause 8.2, we do not warrant that the Use of the Product, or any additional Services: (i) will meet User’s data processing or other requirements or that the operation of the Product (including where in machine-readable form the Program Documentation); or (ii) will be uninterrupted or error free. User agrees that the Product has not been developed to meet its specific requirements.
8.4 Subject to the exceptions set out in this Agreement we warrant that it has the right, power and authority to sale the Product upon the terms and conditions of this Agreement.
Limitation of Liability
9.1 Subject to Clause 9.5 we shall have no Liability for:
9.1.1 any indirect, incidental, special or consequential damages; or
9.1.2 for any of the following, whether direct or indirect and whether or not reasonably foreseeable: (i) loss of revenue or profit; (ii) loss of goodwill; (iii) loss of anticipated savings or; (iv) loss of data.
9.2 For the avoidance of doubt, Clause 9.1.2 shall not prevent claims for loss of or damage to User’s tangible property that fall within the terms of Clause 9.1.2 or any other claims for direct financial loss that are not excluded by any of categories (i) to (iv) inclusive of Clause 9.1.2.
9.3 Subject to Clause 9.5 but notwithstanding anything else in this Agreement, in no event shall our Liability in respect of all claims arising in any twelve (12) month period exceed the Fee paid by User in respect of such period.
9.4 Subject to Clause 9.5, we shall have no Liability for any loss, damage or claim arising out of:
9.4.1 any faults or deficiencies in User’s applications, equipment, services or operating environment that affect the performance or operability of the Product; or
9.4.2 the interoperability or interconnection of the Product with applications, equipment or services provided by User.
9.5 Nothing in this Agreement shall limit or exclude either party’s liability for fraud, or for personal injury or death arising from that party’s negligence.
Intellectual Property Rights and Indemnities
10.1 Subject to the remainder of this Clause 10, we will at our own expense defend or, at its option, settle any claim or action that the normal operation, possession or Use of the Product by User in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party (a “Claim”). Our obligations under this Clause 10.1 are subject to User (i) notifying us promptly upon becoming aware of the Claim; (ii) to User giving all reasonable assistance in connection with defense or settlement of the Claim and to its following our direction in connection with the continued use of the Product; (iii) to being accorded sole conduct of each Claim; and (iv) to User not settling, compromising or making any admission in connection with any Claim.
10.2 In the event of a Claim arising or being threatened, we shall be entitled at its own expense and option either to:
10.2.1 procure the right for User to continue using the Product; or
10.2.2 make alterations, modifications or adjustments to the Product such that they become non-infringing without incurring a material diminution in performance or function; or
10.2.3 replace the Product with a non-infringing substitute provided that such substitutes do not entail a material diminution in performance or function; or
10.2.4 terminate this Agreement by written notice to User and to refund to User that proportion of the user Fee that relates to the period following termination.
10.3 We shall have no liability to User in respect of any Claim where the same results from any breach of the User’s obligations under this Agreement or the acts, omission or negligence of User, its employees, agents and representatives or is attributable to possession or use of the Product by User in combination with any hardware or software not supplied or specified by us or a failure to install and upgrade to a New Release. Notwithstanding any other provision in this Agreement, Clauses 10.1 and 10.2 shall not apply to the extent that any claim or action referred to in that Clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by User.
10.4 Our obligations are set out in Clause 10.1 represent our sole Liability and User’s sole remedy in respect of or in connection with any Claim, including where the same represents a breach of the warranty set out in Clause 8.4.
10.5 User shall indemnify and hold us, our employees and suppliers harmless from and against any cost, losses, liabilities and expenses (including legal costs) arising directly or indirectly from any claimed infringement or violation by User of any Intellectual Property Right other than through use of the Product in accordance with the terms of this Agreement.
Confidentiality
11.1 During the Term of this Agreement and thereafter, each party agrees to keep all Confidential Information strictly confidential and to use it only for the purposes of this Agreement.
11.2 The provisions of this Clause 11 shall not apply to:
11.2.1 information that has come into the public domain other than by breach of this Clause or any other duty of confidence;
11.2.2 information already in the possession of the receiving party before it was made known by the other party;
11.2.3 information the receiving party obtained from a third party without breach of this Clause or any other duty of confidence;
11.2.4 information required to be disclosed by law or by any governmental or other regulatory authority (including the United States Securities and Exchange Commission); or
11.2.5 information that is trivial or obvious.
11.3 Each party shall make its personnel aware of the confidential nature of the Confidential Information and shall ensure that they are prohibited from using, copying or revealing the same, other than as authorized by this Agreement.
Term and Termination
12.1 This Agreement shall commence on the Activation Date of the Service and subject to earlier termination in accordance with the terms hereof: (i) shall continue for the Initial Term; and (ii) thereafter shall continue on a month-to-month basis (each a “Renewal Period”).
12.2 This Agreement may be terminated:
12.2.1 by User on not less than thirty (30) days’ notice to expire at the end of the Initial Term or the then-current Renewal Period;
12.2.2 forthwith if User fails to pay any sum due under this Agreement within thirty (30) days of a reminder notice issued following the due date;
12.2.3 forthwith by either party if the other commits any material breach of this Agreement (other than payment obligations) which in the case of a breach capable of remedy shall not have been remedied within thirty (30) days of a written request to remedy the same;
12.2.4 forthwith by either party if the other suffers an Event of Insolvency.
12.3 Immediately upon any termination of this Agreement:
12.3.1 the rights granted to User here under shall cease;
12.3.2 User shall cease all activities authorized here under;
12.3.3 at our sole option User shall either return all copies of the Product and Program Documentation in its possession or control or shall destroy and erase the same and provide written certification from an officer of User confirming compliance with this Clause 12.3.3;
12.3.4 all amounts incurred by User hereunder (whether or not yet invoiced) shall be immediately due and payable; and
12.3.5 neither party shall have any further obligation to the other here under save that termination of this Agreement shall be without prejudice to and shall not affect (i) the accrued rights or liabilities of either party; nor (ii) the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
Personal Data and Privacy
13.1 User acknowledges that we may, by virtue of the provision of the Product and the Services, come into possession of information regarding User, its employees and users, including personal information, (“Personal Data”). We will implement appropriate technical and organizational measures to protect Personal Data whose use, processing or transfer is regulated by law or regulation as “personal data” (“Regulated Personal Data”) against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against other unlawful forms of processing. User has a right to access Regulated Personal Data that is in the possession on written notice, and to have any agreed errors in such Regulated Personal Data rectified.
13.2 User acknowledges and agrees that we, may use, process and/or transfer Personal Data (including intra-group transfers and transfers to entities in countries that do not provide statutory protections for personal information): (a) in connection with provisioning of Services; (b) to incorporate Personal Data into databases that we control for the purpose of providing the Product, Services; administration, provisioning, billing and reconciliation, verification of identity, solvency and creditworthiness, maintenance, support and product development, fraud detection and prevention, sales, revenue and User analysis and reporting, and market and use analysis; and (c) to communicate with User by voice, letter, fax, or E-mail regarding the Services. User may withdraw consent for such use, processing or transfer of Personal Data as set out above by sending written notice to us, except as it is required to (i) provision, manage, account or bill for the Product or Services; (ii) carry out fraud detection; or (iii) comply with any statutory or regulatory requirement or the order of a court or other public authority.
13.3 User warrants that it has obtained and will maintain all legally-required consents and permissions from relevant parties (including subjects of Personal Data) for the use, processing and transfer of Personal Data as described in this Clause.
Miscellaneous
14.1 Force Majeure: Neither party shall be liable for any delay in performing or failure to perform its obligations here under (other than in respect of payment obligations) resulting from causes beyond its reasonable control (“Event of Force Majeure”). If a default due to an Event of Force Majeure shall continue for more than six (6) weeks then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
14.2 Waiver: The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have here under operate as a waiver of any breach or default by the other party.
14.3 Notices: Any notice, request or other communication to be served under this Agreement may be delivered or sent by first class prepaid recorded delivery post (or if the recipient is in a different country by airmail post) or by fax transmission to the other party to be served at its address appearing in this Agreement or in the event that another address is notified in writing to the other party in accordance with and making specific reference to this Clause then to that other address provided that a paper copy of any communication which is sent by fax transmission is also sent by first class prepaid recorded delivery post (or if the recipient is in a different country by airmail post) within 24 hours of the e-mail or fax transmission having been sent.
14.4 Publicity: Subject to its compliance, as applicable, with Clause 11, each party shall be entitled, in connection with its routine marketing and sales activity, to make reference to the relationship between the parties under this Agreement.
14.5 Invalidity and Severability: If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
14.6 Entire Agreement: (i) This Agreement and the documents referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter; (ii) User acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (a “Representation”) other than as expressly set out herein and (iii) User agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
14.7 Assignment: We may at any time assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement. Without prejudice to the foregoing, User acknowledges and agrees that title and/or Intellectual Property Rights in the Product may be held by an Affiliate. User agrees that such Affiliate may enforce the terms of this Agreement against User directly further agrees that in the case of enforcement, we shall be entitled to claim all losses of such Affiliate as if losses of our business.
14.8 Conflicts: In the event of any conflict between the General Terms, any Schedule and an Order Form the following order of precedence shall prevail: (i) Order Form; (ii) Schedule; (iii) the General Terms.
14.10 Independent Contractors: The parties will at all times be independent contractors and will so represent themselves to all third parties. Neither party has granted to the other party the right to bind it in any manner whatsoever and nothing in this Agreement will be deemed to constitute either party the agent, employee or legal representative of the other nor to constitute the parties as partners or joint venturers.
14.11 Variation: Save as expressly provided herein, no amendment or variation of the terms of this Agreement shall take effect unless in writing and signed by a duly authorized representative of each party.
14.12 Remedies: Except as expressly provided in this Agreement, the rights and remedies provided here under are in addition to, and not exclusive of, any rights or remedies provided by law. The parties acknowledge that monetary damages may not be a sufficient remedy for any breach of this Agreement and that a party is entitled to seek injunctive or other equitable relief to remedy or prevent any breach or threatened breach hereof.
14.13 Third Party Rights: Save as expressly provided herein, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
14.14 Law: This Agreement shall be governed by the State of New York law, without regard to its conflict of laws rules and the parties hereby submit to the exclusive jurisdiction of the state and federal courts.
14.15 Publicity: You grant us the right to add your name and company logo to our customer list and website.
Schedule 1: Maintenance
The following terms and conditions set out in this Schedule 1 (Maintenance) are additional to the General Terms and shall apply to the provision of Maintenance Services in respect of the Product.
All defined terms not otherwise defined in this Schedule shall have the meanings ascribed to them in General Terms. All references to Clauses are to Clauses of this Schedule.
1 Provision of Maintenance Services
1.1 During the Term and provided User meets all its obligations under the General Terms, including payment obligations, we agree and undertakes to provide Maintenance Services on the terms of this Schedule.
2 Maintenance and Support
2.1 Maintenance Services may, on a case-by-case basis and as determined by us, comprise of all or any of the following:
2.1.1 24/7 telephone trouble ticket support and remote desktop support to address Defects, which shall be dealt with as provided in Clause 2.4;
2.1.2 testing and deployment of software updates and version control management of New Releases made available during the Term;
2.1.3 updates to the Program Documentation, including any incident support log and bug/fix log as required; and
2.1.4 management of application infrastructure end points with mutually agreed key client support groups for web servers and databases.
2.2 For the purpose of this Schedule a “Defect” shall mean a reproducible error in the Product that causes it to operate other than substantially in accordance with the Program Documentation.
2.3 Immediately upon becoming aware of any Defect, User shall report the same using (support@temforce.net) and shall supply, in writing, a detailed description of any Defect, including the circumstances in which it arose plus such additional information that we may request. Where such information is incomplete, delayed, or not provided by User, we shall be under no obligation to provide Maintenance Services relating to the relevant Defect or other technical support query until such information is provided in full.
2.4 We aim to respond in respect of a Defect reported in accordance with Clause 2.3 within 1 Business Day of such reporting and shall use reasonable commercial endeavors to provide a resolution or workaround in respect of any such Defect within three (3) Business Days.
2.5 We shall make reasonable commercial endeavors to attend to and/or provide support for any technical queries that are not Defects and are raised by us within a reasonable time and according to either the query or complexity of the issue raised, it being agreed that the same are subject to Clause 3.1.
2.6 For the avoidance of doubt, the parties agree that the Maintenance Services shall not include support of the Product where it has not been updated to the then-current New Release nor shall they include the diagnosis and rectification of any Defect resulting from:
2.6.1 improper use, operation or neglect of the Product;
2.6.2 unauthorized Use and/or the use or attempted use by an unauthorized user;
2.6.3 failure by the User to implement any New Release within seven (7) days of the New Release being issued;
2.6.4 any Third-Party Products and/or Services (as defined in the General Terms);
2.6.5 failure by User to implement recommendations in respect of or solutions to Defects or other technical support queries previously advised;
2.6.6 any breach by User of any of its obligations under this Agreement;
2.6.7 equipment or software not supplied by us or Defects arising in connection with User’s operating environment;
2.6.8 the use of the Product for a purpose for which it was not designed; and/or
2.6.9 User not having maintained any third party or other software licenses.
3 Out of Scope Maintenance
3.1 We shall be entitled to levy, and User shall pay in accordance with the General Terms, any reasonable Additional Charges incurred where maintenance or other services are provided by us on request of the User (written or otherwise) in circumstances where any reasonably skilled and competent person would have judged the User’s request to be unnecessary, and/or a fault or Defect results from an act or omission of the User or any third party under its control or from any of the matters specified in Clause 2.6 or where the services requested are additional to and not in fulfillment of ourobligation to resolve Defects as set out in this Schedule 1.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE SERVICES, SET THE PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.