Terms of Service Agreement


1. ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS OF SERVICE AGREEMENT

The WebTimeTracker Service and the WebPunchClock Service (hereinafter referred to collectively as "Service") are owned and operated by Time Management Solutions, ("TMS"), and provided to you ("the Customer") under the terms and conditions of the Terms of Service Agreement (hereinafter referred to as "TOS"). The TOS comprises the entire agreement between the Customer and TMS and supersedes all prior agreements between the parties regarding the subject matter contained herein. BY CLICKING ON THE BUTTON LABELED "I HAVE READ AND ACCEPT THE TERMS OF SERVICE AGREEMENT - SUBMIT" ON THE SERVICE SIGN UP WEB PAGE, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE TOS.

2. DESCRIPTION OF SERVICE

TMS is providing the Customer with the capability to store and retrieve certain personnel time data ("data") via the World Wide Web and the Service. TMS will charge the Customer on a monthly basis for this Service, with the exception of any initial set up or customization charges. 

In return for this Service, the Customer agrees to: (1) provide certain complete and accurate information about the Customer and (2) maintain and update this information as required to keep it current, complete and accurate. TMS will take all reasonable measures not to divulge this information to any third party unless: (1) the Customer expressly directs TMS to disclose such information; or (2) TMS is required to disclose such information by any applicable law or legal process served on TMS. 

If any information provided by the Customer is inaccurate, TMS retains the right to terminate the Customer's rights to use the Service. 

3. MODIFICATIONS TO TERMS OF SERVICE AGREEMENT

TMS may amend or modify the terms and conditions of the TOS at any time. Upon any change in the terms and conditions of the TOS, TMS will notify the Customer by email. Also, the Customer is responsible to regularly review the TMS website to obtain timely notice of any such amendments. The Customer's continued use of the Service constitutes an affirmative: (1) acknowledgement by the Customer of the TOS and its modifications; and (2) agreement by the Customer to abide and be bound by the TOS and its modifications. 

4. MODIFICATIONS TO SERVICE

TMS reserves the right to modify the Service with or without notice to the Customer. TMS shall not be liable to the Customer or any third party should TMS exercise its right to modify the Service.

5. PRIVACY POLICY

It is policy of TMS to respect the privacy of its Customers. TMS will not monitor, edit, or disclose the contents of a Customer's private communications unless required to do so by law or in the good faith belief that such action is necessary to: (1) conform to the edicts of the law or comply with legal process served on TMS; (2) protect and defend the rights or property of TMS; or (3) act under exigent circumstances to protect the personal safety of its Customers or the public. 

The Customer acknowledges and agrees that TMS neither endorses the contents of any Customer communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising there from or any crime facilitated thereby. 

6. DISCLAIMER OF WARRANTIES

THE CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT THE CUSTOMER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. 

TMS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 

TMS DOES NOT MAKE ANY WARRANTY THAT THE SERVICE WILL MEET THE CUSTOMER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES TMS MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. 

THE CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND THAT THE CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. 

TMS MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. TMS ASSUMES NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE CUSTOMER'S DATA ON THE SERVICE. 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER FROM TMS OR THROUGH THE SERVICE SHALL CREATE OR MAKE ANY MODIFICATION, EXTENSION OR ADDITION TO ANY WARRANTY NOT EXPRESSLY MADE HEREIN. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. 

7. LIMITATION OF LIABILITY

IN NO EVENT WHATSOEVER SHALL TMS BE LIABLE TO THE CUSTOMER OR TO THIRD PARTIES FOR ANY DAMAGES CAUSED, IN WHOLE OR IN PART, BY THE USE OF THE SERVICE, THE INABILITY TO USE THE SERVICE, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S TRANSMISSIONS OR DATA, OR FOR ANY LOST REVENUES, LOST PROFITS, LOST SAVINGS OR OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF TMS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. TMS' LIABILITY ARISING FROM OR RELATED TO THIS TOS SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED AN AMOUNT EQUAL TO THE MONTHLY FEE PAID BY THE CUSTOMER.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH CASE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. 

8. CUSTOMER ACCOUNTS

When the Customer signs up for the Service, the Customer will receive a company identification, logon identification, password, and service address (URL). The Customer is solely responsible to maintain the confidentiality of the company identification, logon identification, password, and service address. Furthermore, the Customer is entirely responsible for any and all activities that occur at the Customer's Service website. The Customer agrees to immediately notify TMS of any unauthorized use of the Customer's account or any other breach of security known to the Customer. 

9. USE OF THE SERVICE

The Customer's right to use the Service is exclusive to the Customer. The Customer agrees not to resell or make any commercial use of the Service without the express written consent of TMS. 

10. CUSTOMER CONDUCT

The Customer is solely responsible for the contents of Customer's data within the Service. Customer's use of the Service is subject to all applicable local, state, national and international laws and regulations. 

Customer agrees: (1) not to use the Service for illegal purposes; (2) not to interfere or disrupt the service or networks connected to the Service; and (3) to comply with all regulations, policies and procedures of the Service and networks connected to the Service. 

The Service uses the Internet to send and receive certain data; therefore, Customer's conduct is subject to Internet regulations, policies and procedures. 

The Customer agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, obscene or otherwise objectionable material of any kind or nature. The Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. 

The Customer shall not interfere with another Customer's use of the Service. 

TMS may, at its sole discretion, immediately terminate the Service should the Customer's conduct fail to conform with the terms and conditions of this TOS. 

11. INDEMNIFICATION

The Customer agrees to indemnify, hold harmless and defend, at its own expense, TMS, its officers and employees, from and against any claims, demands, actions, proceedings, judgments, decrees, costs and expenses, including reasonable attorneys' fees, arising from or out of the Customer's use of the Service, the violation of this TOS by the Customer, or any person authorized to act on the Customer's behalf, or the infringement by the Customer, or other user of the Service using the Customer's computer, of any intellectual property or other right of any person or entity. 

12. TERMINATION OR CANCELLATION OF SERVICE

The Customer may terminate the Service by sending a written e-mail notice to TMS. The Customer's account will be terminated thirty (30) days from the date of notice of cancellation. The Customer will be charged the regular Service Fees, plus all applicable taxes, for that 30-day termination period. Upon termination of the Service, the Customer's right to use the Service immediately ceases. Thereafter, the Customer shall have no right and TMS will have no obligation to the Customer. TMS reserves the right to refuse to set up a subsequent account for any Customer who has cancelled previous Service accounts. 

13. USER LICENSES

There are no refunds on the purchase of user licenses. The purchase of a user license is for the entire length of the billing period. The customer shall not add more users than the number of user licenses purchased. Additional licenses may be purchased by contacting sales@timemgtsolns.com. The Customer may delete a terminated or inactive user, and replace the deleted user with another user.

14. PRODUCT CUSTOMIZATION

TMS' products are sold as is. TMS makes no promise to the customer to enhance or customize its products to suit the needs of the customer. While TMS does make improvements to its products on an ongoing basis, and often accepts suggestions from customers, TMS is not obligated to implement a customerís request for enhancements. In cases where TMS agrees to implement an enhancement or provide customization, TMS reserves the right to charge the customer for the service.

15. NOTICES

All notices to the Customer shall be in writing and shall be made either via e-mail or conventional mail. 

16. PROPRIETARY RIGHTS TO CONTENT

Customer acknowledges that content of the Service is the sole and exclusive property of TMS and is protected by copyrights, trademarks, patents or other proprietary rights and laws. The Customer may not copy, reproduce, or distribute the content. The Customer is only permitted to use this content as expressly authorized by the Service. 

17. MISCELLANEOUS

17.1 The TOS embodies the entire understanding between the parties and there are not other agreements, representations, warranties or understandings, oral or written, between them with respect to the subject matter of the TOS. No alteration, modification or change of the TOS shall be valid and enforceable unless approved by TMS in writing. 

17.2 If any of the provisions of the TOS are held by a court of competent jurisdiction to be illegal, invalid, or unenforceable under any applicable law, then such contravention or invalidity shall not invalidate the entire agreement. Such provisions shall be deemed modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this TOS shall be construed as if not containing the provision held to be invalid and the rights and obligations of the parties shall be construed and enforced accordingly with the other provisions remaining in full force and effect. The provisions of Paragraphs 6, 7, 11, 16, 17.2 and 17.3 shall survive termination of the Service. 

17.3 If at any time Customer or TMS retains one or more attorneys to enforce any covenant or provision of this TOS, or to defend itself against any claim by any other party hereto, whether or not suit is filed, the party who is wholly or partially successful shall be entitled to damages inclusive of the amount of such party's reasonable attorneys' fees, expenses and costs; this covenant shall survive the termination of the Service. 

17.4 Customer and TMS agree that any cause of action arising out of or related to the Service must commence within one (1) year after the alleged cause of action arose; otherwise, such cause of action is permanently barred. 


IN WITNESS WHEREOF, intending to be legally bound hereby, by clicking on the button labeled "I HAVE READ AND ACCEPT THE TERMS OF SERVICE AGREEMENT - SUBMIT" on the service sign up form, the Customer has caused this TOS to be executed.



Last Updated: Oct 1, 2008