Last updated: August 29, 2023
BY ACCESSING OR USING THE SERVICE OR BY OTHERWISE INDICATING YOUR ASSENT TO THIS AGREEMENT WHICH MAY INCLUDE CLICKING “I ACCEPT,” OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THE VERSION OF THIS AGREEMENT AVAILABLE AT https://www3.swipeclock.com/terms-of-use/ AS OF THE DATE OF YOUR ACCEPTANCE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE OR REGISTER AN ACCOUNT WITH SWIPECLOCK.
This Agreement is effective as of the earliest of: (1) the date of your express acceptance of this Agreement; (2) the date that you enter into an Order Form (as defined below); (3) the date that you register for a Service account; and (4) the date that you first use the Service (such date of effectiveness, the “Effective Date”).
1. DEFINITIONS. As used in this Agreement:
- 1.1 “Access Credentials” means login information, passwords, and security controls through which Users access and use the Service.
- 1.2 “Affiliate” means with respect to either Party on any applicable date of determination, any other entity directly or indirectly controlling, controlled by or under common control with such Party as of such date.
- 1.3 “Aggregate Information” means any information, data and/or metadata derived from use of the Service (excluding biometric data) that is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person and does not identify any Swipeclock customer or user or company-specific name and that is stripped of all persistent identifiers, such as device identifiers, IP addresses and cookie IDs.
- 1.4 “Customer Content” means all information, content, text, data and other materials transmitted, uploaded, or stored by Customer or its Users in the Service, which may include biometric, genetic, or health data. Customer Content expressly excludes all Swipeclock Offering functionality, and all Swipeclock-supplied information, content, text, data and other materials.
- 1.5 “Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Service, and which are made available to Customer by Swipeclock with the Service.
- 1.6 “Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark and service mark rights and other similar rights in Marks, together with all goodwill related thereto; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
- 1.7 “Marks” means trademarks, service marks, logos, product names, service names, design marks, slogans and other indicia of origin.
- 1.8 “Order Form” means the order form signed (electronically or otherwise) by an authorized representative of each Party or a reseller or other designee thereof, in each case referencing this Agreement.
- 1.9 “Parties” means Swipeclock and Customer. Swipeclock and Customer are each a “Party”.
- 1.10 “Professional Services” means the Professional Services available from Swipeclock as described in an Order Form.
- 1.11 “Service” means the version of the Swipeclock software as a service offering set forth in an Order Form made generally commercially available by Swipeclock to its customers, including all Updates.
- 1.12 “Subscription Term” means the period of time set forth in an Order Form.
- 1.13 “Support Services” means Swipeclock’s standard support services that Swipeclock performs generally for its customers.
- 1.14 “Swipeclock Offerings” means, collectively, the Services, the Swipeclock Technology, Products, and the Additional Purchases.
- 1.15 “Swipeclock Technology” means the computer software, computer code, scripts, application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third-party services, and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Service.
- 1.16 “Updates” means all upgrades, enhancements, improvements, maintenance releases, additions, and modifications, of the Service made generally commercially available to Swipeclock’s customers at no additional charge as part of the Service during the applicable Subscription Term.
- 1.17 “Users” means: (a) the employees and contractors/consultants of Customer, excluding Customer Affiliates; (b) that are granted access by Customer to use the Service; and (c) which have a bona fide need to use the Service for Customer’s internal business purposes. Users may include resellers that Customer authorizes to access the Service on behalf of Customer.
- 2.1 Service; Service Level Agreement. Subject to and in accordance with this Agreement, including, without limitation, payment of all applicable fees, Swipeclock will use reasonable commercial efforts to make the Service available for use and access by Customer.
- 2.2 Additional Orders by Affiliates. Affiliates of Customer may place additional orders for access to the Service by executing a separate Order Form with Swipeclock in which each Customer’s Affiliate agrees to pay additional implementation and subscription fees to Swipeclock and to be bound by all terms and conditions of this Agreement. Customer shall remain primarily responsible for the compliance of its Affiliates with the terms of this Agreement, including without limitation payment of all fees due thereunder.
- 2.3 Customer Access. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Service is dependent upon access to telecommunications and Internet services. Customer and Users will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Service, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. Swipeclock will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. Swipeclock may provide notice to Customer from time to time of the version(s) of those products required in order for Customer and its Users to use the Service (e.g., supported browser versions).
- 2.4 Modifications to the Service. Swipeclock reserves the right to modify the Service from time to time, including without limitation implementing Updates. If any such modification or Update materially and adversely reduces the functionality of the Service, Customer may terminate any relevant Order Form pursuant to Section 12.2(a). Swipeclock may condition the implementation of new features, functionality or other modifications to the Service on Customer’s payment of additional fees, provided that Swipeclock generally charges other customers for such new features, functionality or other modifications.
- 2.5 Support Services. Subject to Swipeclock’s receipt of Customer’s payment of all applicable subscription fees payable by Customer for the Service, Swipeclock shall provide Customer with Support Services. Support provided by a reseller, and any obligation of Swipeclock in connection therewith, if any, will be provided directly by the reseller, and not Swipeclock. Swipeclock shall have no obligation to support: (i) errors caused by Customer’s or any User’s misuse, negligence, abuse, misapplication, or other unpermitted actions or inactions; (ii) use of the Service other than as specified in the Documentation; (iii) errors beyond the reasonable control of Swipeclock; or (iv) any software or other technology other than the Service.
- 2.6 Third Party Features, Services and Content. Customer acknowledges and agrees that use of any third-party features, services, content, or materials as may be supplied by Swipeclock either in or accessible through the Service shall be subject to any applicable third-party terms and conditions made available to Customer with such third-party features, services, content, or materials (the “Third Party Agreement”), and Swipeclock shall have no liability for any damage or loss caused by such third party features, services, content, or materials or for the use or performance thereof. Customer hereby acknowledges and agrees that each Third Party Agreement applies to Customer’s and all Users’ use of any third party features, services, content, or materials, and Customer agrees to comply, and require its Users to comply, with all Third Party Agreements.
- 2.7 Data Backup.
- (a) Swipeclock will follow its standard archival procedures for storage of Customer Content, to the extent compatible with applicable law. In the event of any loss or corruption of Customer Content, Swipeclock will use commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by Swipeclock or its third-party service provider in accordance with its recovery procedures.
- (b) Swipeclock will not be responsible for any loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Content directly or indirectly arising from acts or omissions of Customer, its Users or a third party. SWIPECLOCK ’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION 2.7 WILL CONSTITUTE SWIPECLOCK’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS, CORRUPTION, DESTRUCTION, ALTERATION, OR UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER CONTENT.
3. ACCESS GRANT; LICENSES; OWNERSHIP
- 3.1 Access Grant. Subject to Customer’s compliance with the terms and conditions contained in this Agreement and the Documentation, Swipeclock grants to Customer during the applicable Subscription Term a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable right to allow Users to access and use the Service for Customer’s internal business purposes, subject to the use limitations in the relevant Order Form.
- 3.2 Customer Content. Customer grants to Swipeclock a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to use, copy, execute, host, store, reformat and display the Customer Content for the sole purposes of enabling Swipeclock to provide the Service to Customer and its Users hereunder. In addition, Customer agrees that Swipeclock’s third-party contractors and service providers may exercise the licenses granted to Swipeclock in this Section 3.2 for the sole purpose of performing services for or on behalf of Swipeclock in connection with the provision of the Service to Customers. Customer acknowledges and agrees that Customer shall use secure encrypted connection(s) to transmit Customer Content when communicating with and/or using the Service.
- 3.3 Users. Customer may grant access to the Service only to those Users who have been assigned unique Access Credentials. Customer shall be solely responsible for ensuring that all Users comply with the terms of this Agreement. Customer will promptly notify Swipeclock of any suspected, alleged or actual violation of the terms and conditions of this Agreement and will cooperate with Swipeclock with respect to: (i) investigation by Swipeclock of any suspected, alleged or actual violation of this Agreement; and (ii) enforcement of this Agreement. Swipeclock may suspend or terminate any User’s access to the Service upon notice to Customer in the event Swipeclock reasonably determines that such User has violated any terms of this Agreement. Customer will at all times be responsible for all actions taken under a User’s account and for any breach of this Agreement by its Users. All acts and omissions of Users are deemed to be those of Customer.
- 3.4 Feedback. In the event Customer or its Users provide Swipeclock any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Service (collectively “Feedback“), including in response to any product plans or roadmaps shared with Customer, Customer hereby grants to Swipeclock a worldwide, royalty-free, fully paid, perpetual, exclusive, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of Confidential Information, Intellectual Property Rights or otherwise, and Swipeclock may incorporate into the Service and/or any other service, product, technology, enhancement, documentation or other development incorporating or derived from any Feedback (“Improvement”) with no obligation by Swipeclock to license or make available the Improvement to Customer or any other person or entity.
- 3.5 Ownership.
- (a) The Swipeclock Confidential Information, (as defined in Section 8.1 of this Agreement), Swipeclock Offerings, and the Documentation, and all worldwide Intellectual Property Rights in each of the foregoing and all modifications thereto and derivative works thereof, are the exclusive property of Swipeclock and its suppliers. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Swipeclock and its suppliers. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software underlying the Service, or any other Swipeclock Offering, in either object code or source code form. Swipeclock’s name and logo, and all Swipeclock product and services names, including the name of the Service and any product or service associated with it, are trademarks of Swipeclock or its licensors, and no right or license to use them is granted in this Agreement. Further, Customer acknowledges and agrees that Swipeclock owns all right, title and interest in and to the Aggregate Information it develops and may use Aggregate Information to provide and improve Swipeclock’s products and services, and for sales, marketing and other business purposes.
- (b) The Customer Confidential Information and Customer Content, and all worldwide Intellectual Property Rights in the Customer Content and all modifications and derivative works thereof, are the exclusive property of Customer and its suppliers. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Customer and its suppliers. Customer hereby grants Swipeclock a worldwide, perpetual, irrevocable, royalty-free, fully paid up, nonexclusive, right and license (with right of sublicense) to use and copy all Customer Content for purposes of performing under this Agreement. Notwithstanding the foregoing, Swipeclock is permitted to contact Customer in connection with Customer’s purchase and use of Services, including Customers that have purchased access from a reseller.
4. ADDITIONAL PURCHASES.
- 4.1 Orders. Portions of the Service may give Customer the ability to place an order to purchase certain tangible products (“Products”) and additional services, such as upgrades to Customer’s existing account (“Additional Purchases”). Additional Purchases that are upgrades to Customer existing Service purchases are deemed to be “Services” for purposes of this Agreement. Customer acknowledges and agrees that an order for Additional Purchases or Products is an offer to buy, under this Agreement, all Additional Purchases and Products listed in Customer’s order. All orders must be accepted by Swipeclock or Swipeclock will not be obligated to sell the Additional Purchases or Products to Customer. Swipeclock may choose not to accept orders at Swipeclock’s sole discretion. All orders are subject to Swipeclock’s acceptance and Additional Purchase and Product availability. The appearance of Additional Purchases and Products displayed on any website within the Services may not exactly correspond to the actual Additional Purchases or Products in terms of image, dimensions, color or otherwise.
- 4.2 Prices and Payment for Additional Purchases. Customer’s total price for the Additional Purchases and Products will be stated on Customer’s purchase receipt and/or in a confirmation of Customer’s order by way of e-mail to the address Customer provide during the checkout process. Terms of payment are within Swipeclock’s sole discretion, and, unless otherwise agreed to by Swipeclock, payment must be received by Swipeclock prior to Swipeclock’s acceptance of an order for Additional Purchases or Products. Swipeclock may use third-party service providers to process transactions on the Service and all payments for Additional Purchases and Products must be made in the manner specified by such third-party service providers. Any price offers or advertisements given by Swipeclock will be valid for the period stated on the offer or advertisement, with the exception that Swipeclock reserves the right to reject any sale at any time and for any reason, including without limitation for a misprint in the price offer or advertisement. Prices offered or advertised do not include shipping and handling or applicable sales taxes, which will be added to the price Customer pays.
- 4.3 Modifications. Swipeclock may revise pricing for any Additional Purchase or Product option or revise or discontinue any Additional Purchase or Product options at any time. Additional Purchases and Products are not refundable unless expressly permitted by Swipeclock in writing. Permitted refunds, for whatever reason, of any payment received by Customer will take place using the same method of payment Customer chose during the checkout process and cannot be amended after Customer’s order has been placed.
- 4.4 Order Cancellation. In the event an Additional Purchase or Product option is listed at an incorrect price due to a typographical error, entry error, error in pricing information received from Swipeclock’s suppliers, or other similar error, Swipeclock shall have the right to refuse or cancel any orders for such Additional Purchases or Products. Swipeclock shall also have the right to refuse or cancel any or all of Customer’s orders if Swipeclock determine, in Swipeclock’s sole discretion, that Customer is in breach of this Agreement. Swipeclock reserves the right to refuse or cancel any such orders whether or not the order has been confirmed. Swipeclock will use commercially reasonable efforts to notify Customer of any cancellation and Customer will not be charged for any cancelled orders.
- 4.5 Shipping. Swipeclock will arrange shipping of Products to the address indicated in Customer’s order using a carrier of Swipeclock’s choice, in Swipeclock’s sole discretion.
- 4.6 Risk of Loss. Risk of loss to Products passes to Customer upon delivery to the carrier. Swipeclock does not provide insurance on Products during delivery. The costs of shipping and handling will be shown on Customer’s purchase receipt. Swipeclock will not be responsible for delays in delivery, including without limitation if due to events beyond its reasonable control, including without limitation shortage of materials, transportation failure, or acts of God.
- 4.7 Product Warranty. Swipeclock represents and warrants to Customer that Products will be free from defects in workmanship and materials, under normal use and service provided that Swipeclock’s sole obligation and Customer’s sole and exclusive remedy for a breach of this foregoing remedy will be for Swipeclock to, in its reasonable discretion in each case, repair the defective Product, replace it with a new or refurbished Product that is substantially similar to the Product Customer purchased, or, if neither is practical, provide Customer with a refund for the Product. All warranty claims will be subject to the RMA procedures set forth in Sections 4.8 and 4.9 below. No warranty will apply to any Product that that have been (i) modified, altered, tampered with (including removal of any serial numbers), reconfigured, or adapted without Swipeclock’s written consent, including any Product Purchases that have been dismantled; (ii) mistreated or used in a manner other than in accordance with the Product documentation; (iii) repaired by any third party not approved by Swipeclock; (iv) improperly installed; (v) used with equipment, software or other products or services not provided by Swipeclock; (vi) used directly or indirectly in breach of this Agreement, including in supporting activities prohibited by applicable law; (vii) discontinued or deprecated; or (viii) subject to events, circumstances or causes beyond its reasonable control, including electrical surges or operation of the Product in an unsupported, third-party environment. Without limiting the provisions of Section 9 or 11, Swipeclock does not warrant that any Product description or other information, material, or content accessible using the Product will be accurate, complete, reliable, current, or error-free. Customer’s sole remedy for any claim arising from the purchase of any Product will be to return the Offering for a full or partial refund in accordance with and to the extent permitted by Sections 4.8 and 4.9.
- 4.8 Inspection. Customer must examine any Products when Customer receives them. If any item is damaged or missing, Customer must either reject the delivery or notify Swipeclock immediately via support ticket here. In order to receive a replacement Product, Customer must first obtain a return merchandise authorization tracking number (“RMA”), which Customer must obtain within thirty (30) days after Customer’s purchase date. Once Customer has received an RMA, Customer must pack the Product (including all associated parts and components) securely with the RMA and proof of purchase and send to the location that Swipeclock designates using the shipping instructions that Swipeclock provides, which may include a pre-paid shipping label, to be provided by Swipeclock in Swipeclock’s sole discretion. Once Swipeclock receives Customer’s package, Swipeclock will process Customer’s request and evaluate whether Customer is eligible for a replacement and, if so, Swipeclock will send Customer a replacement using the same shipping method as Customer originally selected. If any cross-shipment or advance replacement is requested or necessary, subject to Swipeclock’s written pre-approval thereof, Swipeclock will replace the Product using regular ground shipping. Customer will be responsible for any shipping upgrades. If, after Swipeclock evaluates the Product, Swipeclock discovers the Product is functioning properly, Swipeclock will return the Product to Customer without replacement, at Customer’s cost and expense.
- 4.9 Returns. All returns are at Swipeclock’s discretion. Customer may request to return any Product within thirty (30) days after Customer’s purchase date. In order to initiate a return, Customer must first obtain an RMA by contacting Swipeclock via support ticket here. Once Customer receives an RMA, Customer must pack the Product securely with the RMA and proof of purchase and send to the location that Swipeclock designates. In order to be eligible for a return, Products must be returned in new, unused, and sellable condition, in its original packaging, and with all original tags, documents, parts and accessories. Any damaged, used, or otherwise unsellable Products will not be accepted for returns, except as otherwise approved by Swipeclock in Swipeclock’s sole discretion. All return shipping charges are Customer’s responsibility and must be prepaid. Once Swipeclock receives Customer’s package, Swipeclock will process Customer’s request and evaluate whether Customer is eligible for a return. If Swipeclock accepts Customer’s return, Swipeclock may issue a merchandise credit to be used towards future purchases for the current list purchase price amount for Products, less (a) any discounts that were applied to the Product, and (b) a restocking fee calculated at 25% of the purchase price. If Customer refuses any order, Swipeclock may also deduct a $10 handling fee from Customer’s credit. Only physical clocks are eligible for returns and no other Products may be returned. Requests for returns that do not comply with this Section 4.9 may be rejected by Swipeclock and will not be eligible for a credit. All such rejected Products will be returned to Customer at Customer’s expense. Swipeclock does not guarantee the availability of replacement Products.
- 4.10 Not for Resale or Export. Unless Swipeclock has expressly authorized Customer to resell Swipeclock’s Products, Customer represents and warrant that Customer is buying Products from the Service for Customer’s own business use only and not for resale or export.
- 4.11 Delivery Restrictions. Delivery is restricted to physical addresses in the United States, and, unless otherwise authorized by Swipeclock in writing, in Swipeclock’s sole discretion, Customer represent and warrant that all purchases are intended for final delivery within the United States.
5. CUSTOMER RESPONSIBILITIES.
- 5.1 Registration Data; Access Credentials. Customer shall: (1) keep all Access Credentials secure and confidential; (2) not allow any of Customer’s Users to provide their Access Credentials to anyone else; and (3) not permit others to use Customer’s Access Credentials. Customer will immediately, but in any case within forty-eight (48) hours of discovery, notify Swipeclock if it learns of any known or suspected unauthorized access to or use of the Service, Customer’s account or any Access Credentials assigned to Customer or its Users, or if Customer learns of any other known or suspected breach of security or the confidentiality of information with respect to the Service (each, a “Security Incident”). Swipeclock reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action Swipeclock deems reasonable to ensure the security of the Service and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account.
- 5.2 Restrictions. Customer will not, directly or indirectly, and will ensure that its Users do not: (a) provide access to or use of the Service or Documentation to any third-party technical contractor or consultant, or to any third party that is not an authorized User; (b) copy, adapt, alter, modify, improve, translate or create derivative works of any Swipeclock Offering or Documentation; (c) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code or underlying ideas or algorithms to all or any portion of the Service; (d) license, sublicense, sell, resell, rent, lease, transfer, assign, sublicense, distribute, time share or otherwise commercially exploit or otherwise provide or make the Service or Documentation available to any third party (including, without limitation, offering the Service to third parties on an application service provider or time-sharing basis, or otherwise providing third-party hosting, or third-party application integration or application service provider-type services, or for any similar services); (e) use the Service in any manner inconsistent with this Agreement; (f) challenge, directly or indirectly, the right, title and/or interest of Swipeclock in and to any Swipeclock Offering or Documentation, or any Swipeclock registration related thereto; (g) without Swipeclock’s prior written consent conduct any technical security integrity review, penetration test, or vulnerability scan involving the Service; or (h) access the Service by any means other than through the interface that is provided by Swipeclock for use in accessing the Service.
- 5.3 Customer Content Restrictions. Customer is responsible for providing all Customer Content. Customer represents, warrants and covenants: (a) that Customer has all rights and licenses necessary to upload the Customer Content to the Service, and to grant the rights to use the Customer Content for purposes of performing the Service for Customer; and (b) that the Customer Content or Customer’s actions with respect to Customer Content that involve or relate to the Services:
- (i) will not and does not infringe any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right;
- (ii) will not and does not violate the privacy, publicity, or other right of any third party, including with respect to any individual, or otherwise violate any other law, statute, ordinance or regulation;
- (iii) will not and does not disclose or provide (a) payment card data of any third party, (b) information protected by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or (c) information which, if transmitted to Swipeclock, would infringe upon or violate the legal rights of any individual under any law, agreement, fiduciary relationship, or principle of law or equity;
- (iv) will not and does not contain or transmit any virus, Trojan horse, spyware. malware, worm, time bomb, cancelbot, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system data or personal information; and
- (v) will not and does not enable, permit, advocate or encourage any illegal activity or any conduct that would, or would be likely to, violate any applicable law or regulation or give rise to civil liability.
6. PROFESSIONAL SERVICES.
- 6.1 Professional Services. Swipeclock will use commercially reasonable efforts to perform Professional Services in accordance with the Order Form and consistent with generally accepted industry standards. Swipeclock’s sole and exclusive obligation and Customer’s sole and exclusive remedy for any breach of the foregoing will be for Swipeclock to use commercially reasonable efforts to promptly reperform the applicable Professional Services.
- 6.2 Customer Responsibilities. Customer and its third-party contractors will make available in a timely manner, at no charge to Swipeclock, all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by Swipeclock as Swipeclock reasonably requires to perform the Professional Services. Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness, consistency, facilitation, or provision thereof to Swipeclock by Customer or any third party.
7. FEES AND PAYMENT.
- 7.1 Fees. In consideration for the rights granted hereunder, Customer will pay to Swipeclock the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Customer is responsible for payment of all subscription fees for all Users granted access during the Subscription Term, whether or not such User has actually accessed the Service during the Subscription Term. Swipeclock reserves the right to increase the subscription fees on each renewal of the Subscription Term by providing Customer with at least sixty (60) days’ prior written notice.
- 7.2 Payment. Unless otherwise specified in any Order Form, all subscription fees are invoiced monthly in arrears from the Effective Date, and all invoices issued by Swipeclock will be due and payable thirty (30) days from the date of Swipeclock’s invoice. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event of any dispute of an invoice, Customer shall notify Swipeclock in writing within fifteen (15) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the Parties agree to negotiate promptly and in good faith a reasonable settlement of the disputed amount. Amounts not disputed within such fifteen (15) day period will be deemed valid and may not later be disputed.
- 7.3 Taxes. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Customer’s receipt or use of the Service, except for taxes based on Swipeclock’s net income, employees or property. In the event that Swipeclock is required to collect or pay any tax for which Customer is responsible, Swipeclock will invoice Customer and Customer will pay such taxes and duties directly to Swipeclock unless Customer provides Swipeclock with a valid tax exemption certificate authorized by the appropriate taxing authority.
- 8.1 Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, the existence and terms of this Agreement, and other confidential or proprietary information regardless whether disclosed orally, in writing or visually, or that is learned by the Receiving Party from observing the Service (“Confidential Information”). For the avoidance of doubt, Swipeclock’s pricing, Service functionality, features, capabilities and product road maps, Service, Documentation and Swipeclock Offerings all constitute Confidential Information of Swipeclock. Customer Content constitutes Confidential Information of Customer.
- 8.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a bona fide need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both Parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 8 and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek: (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret; or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.
- 8.3 Exceptions. The Receiving Party’s obligations under this Section 8 will not apply to any portion of the Disclosing Party’s Confidential Information, if the Receiving Party can provide contemporaneous documentation that such information: (a) was lawfully known to the Receiving Party prior to the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is or has become through no fault of the Receiving Party generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, and without reliance on any individual who has or had access to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly in writing, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- 8.4 Return of Confidential Information. The Receiving Party shall permanently erase all electronic copies of a Disclosing Party’s Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party shall certify in writing signed by an officer of the Receiving Party that the Receiving Party has fully complied with its obligations under this Section 8.4. Notwithstanding the foregoing, Customer acknowledges that Swipeclock may retain a copy of the Customer Content in accordance with Swipeclock’s record retention guidelines.
- 9.1 Warranties by Both Parties. Each Party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement, and this Agreement is the valid and binding obligation of such Party, enforceable against such Party in accordance with this Agreement’s terms; (b) the person signing this Agreement on such Party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security.
- 9.2 Service Warranty. Swipeclock represents and warrants that the Service does and will include the functionality described in the Documentation. In the event of a breach of the foregoing representation or warranty, Customer’s sole and exclusive remedy and Swipeclock’s sole liability shall be to modify the Service so that it is conforming to the Documentation. Notwithstanding the foregoing, Swipeclock shall have no liability for any nonconformity resulting from Customer’s or any of its Users’ act or omission, or from any Customer Content or interoperability of Customer infrastructure or Customer Content with any Swipeclock Offering.
- 9.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 9, SWIPECLOCK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE SWIPECLOCK OFFERINGS OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND SWIPECLOCK EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
- SWIPECLOCK SHALL NOT BE RESPONSIBLE FOR ENSURING, AND DOES NOT REPRESENT OR WARRANT THAT: (I) ANY SWIPECLOCK OFFERING WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) ANY SWIPECLOCK OFFERING WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED, OR THAT THE RESULTS OBTAINED FROM ANY USE THEREOF WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN ANY SWIPECLOCK OFFERING CAN BE FOUND OR CORRECTED. SWIPECLOCK WILL NOT BE RESPONSIBLE FOR: (A) ANY FAILURE TO MEET THE SERVICE WARRANTY OF SECTION 9.2 CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER, OR CAUSED BY INTEROPERABILITY OF CUSTOMER CONTENT OR CUSTOMER INFRASTRUCTURE WITH THE SERVICE; (B) LOSS OR CORRUPTION OF DATA; OR (C) THE INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY SWIPECLOCK OFFERING DUE TO ANY INTERNET OR NETWORK FAILURE.
- SWIPECLOCK EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USERS’ USE OF AND ACCESS TO THE SERVICE IS IN ACCORDANCE WITH APPLICABLE LAW.
- 10.1 Swipeclock Indemnity. Swipeclock shall at Swipeclock’s expense defend, indemnify and hold Customer and its affiliates, employees, officers and directors harmless from and against any liability, loss or damage (including reasonable attorneys’ fees) incurred in connection with any claim, suit, or proceeding brought by a third party (“Claim”) against Customer or its officers, directors or employees contending that Customer’s use of the Service in accordance with the Documentation infringes any valid Intellectual Property Right of a third party, and Swipeclock shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Swipeclock in settlement of the Claim. In the event that the Service or any part thereof becomes – or, in Swipeclock’s sole opinion, is likely to become the subject of an infringement-related Claim: (a) Swipeclock may at its option and expense procure for Customer the right to continue using the Service, or modify the Service to make it non infringing; or (b) if Section 10.1(a) is not commercially reasonable, then Swipeclock may terminate this Agreement and all Order Forms with notice to Customer, and Swipeclock will provide Customer with a refund of any pre-paid fees for the unexpired portion of the remaining Subscription Term. Swipeclock shall have no liability for any Claim or demand arising from: (i) an allegation that does not state with specificity that the Service is the basis of the Claims; (ii) the use or combination of the Service or any part thereof with software, hardware, or other materials not developed by Swipeclock, if the Service or use thereof would not infringe without such combination; (iii) modification of the Service by a Party other than Swipeclock, if the use of unmodified Service would not constitute infringement; (iv) a breach by Customer or any User of any obligation under this Agreement, or a use of the Service by Customer or any User in a manner outside the scope of any right granted herein or not in accordance with the Documentation, if the claim would not have arisen but for such breach or unauthorized use; (v) an allegation made against Customer arising out of or related to any Customer Content; or (vi) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon any action by Customer prior to the execution of this Agreement. The foregoing states Swipeclock’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.
- 10.2 Customer Indemnity. Customer shall at Customer’s expense defend, indemnify and hold Swipeclock, its affiliates, employees, officers, and directors harmless from and against any liability, loss, or damage (including reasonable attorneys’ fees) incurred in connection with any Claim: (i) arising out of or related to any Customer Content, including without limitation any claim that any Customer Content infringes the Intellectual Property Right of, or has otherwise harmed, a third party; (ii) based upon Customer’s or any User’s use of any Swipeclock Offering not in accordance with the terms hereof, or not in accordance with the Documentation, or in violation of Section 3 or 4; or (iii) based on any failure or alleged failure of the Customer or any User to comply with any applicable law, rule, regulation or guideline in connection with its use of the Service, including without limitation any data privacy or data security laws and any laws relating to, regulating, or proscribing the processing of biometric, genetic, or health data.
- 10.3 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified Party: (a) notifying the indemnifying Party promptly in writing of each Claim; (b) reasonably cooperating and assisting in the defense of each Claim at the indemnifying Party’s expense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying Party; provided, that the indemnifying Party may not settle any claim that imposes any duty on or diminishes any right of the indemnified Party without the indemnified Party’s prior written consent.
11. LIMITATION OF LIABILITY.
- 11.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY’S AGGREGATE TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SWIPECLOCK UNDER THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT, AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- 11.2 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY (A) LOSS OF ACTUAL OR ANTICIPATED PROFITS, (B) LOSS OF BUSINESS, (C) LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, (D) LOSS OF USE, (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (F) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, REGARDLESS WHETHER (I) ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, (II)THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (III) SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
- 11.3 Exclusions. The foregoing limitations shall not apply to: (i) amounts payable by Customer to Swipeclock under any Order Form; (ii) liability arising from the indemnification obligations in Section 10; (iii) violation or misappropriation of a Party’s intellectual property rights; (iv) damages arising from a breach by Customer of Section 3 or 5; or (v) damages arising from a Party’s gross negligence or wilful misconduct.
- 11.4 Savings Clause. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither Party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other Party to comply with its obligations under this Agreement.
- 11.5 Limitation of Action. To the maximum extent permitted by applicable law, and except for any action for non-payment or for breach of either Party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than one (1) year after the cause of action has accrued.
- 11.6 Allocation of Risk. Each Party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the Parties – including the disclaimer of warranties in Section 9.3, the limitation of liability in Section 11.1, and the exclusion of consequential and related damages in Section 11.2 –, and that the other Party would not enter into this Agreement without these limitations on its liability.
12. TERM AND TERMINATION.
- 12.1 Term. The term of this Agreement will commence on the Effective Date and remain in effect until all Order Forms have terminated or expired, or until earlier termination of this Agreement as provided in this Section 12 (the “Term”). The initial term for each Order Form shall be as set forth therein, and shall automatically renew for successive periods of equal length as the initial term, unless Customer notifies Swipeclock in writing at least thirty (30) days prior to the expiration of the initial term, or unless otherwise set forth in the Order Form. Upon termination of this Agreement for any reason, all Order Forms shall immediately terminate. However, termination or expiration of any Order Form shall not necessarily cause the termination or expiration of this Agreement.
- 12.2 Termination.
- (a) Any Order Form may be terminated by Customer in accordance with Section 2.4 by providing detailed, written notice to Swipeclock within five (5) days after any modification to the Service that materially and adversely reduces the functionality of the Service, provided that:
- (i) Swipeclock shall have an additional ninety (90) day cure period, or such other period of time as mutually agreed upon by the parties (“Cure Period”), after receipt of Customer’s notice to remedy such reduction in functionality;
- (ii) Customer shall fully cooperate with Swipeclock’s reasonable requests for information regarding any such reduction in functionality; and
- (iii) Such termination shall not be effective, if Swipeclock substantially remedies such reduction in functionality within the Cure Period.
- (b) This Agreement or any Order Form may be terminated by Swipeclock if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from Swipeclock of such failure (regardless whether Swipeclock avails itself of its right to suspend the Service pursuant to Section 12.4 hereof).
- (c) This Agreement or any Order Form may be terminated by either Party (the “Non-breaching Party”) upon written notice containing an explanation of the alleged breach to the other Party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.
- 12.3 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event that: (a) the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed by a third party, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of the other Party’s creditors. Upon termination of the Agreement by Customer due to Swipeclock’s bankruptcy or insolvency, Swipeclock shall refund to Customer any pre-paid fees previously paid by Customer for services not performed as of the date of termination.
- 12.4 Suspension of Services. At any time during the Term, Swipeclock may immediately upon notice to Customer, and in Swipeclock’s sole reasonable discretion, suspend Swipeclock’s performance under this Agreement and any Order Form or may suspend any and all Users’ access to the Service for any of the following reasons: (a) breach or threatened breach of Section 5.1 or Section 5.2; (b) a reasonable threat to the technical security or technical integrity of the Service exists as determined by Swipeclock in its sole and absolute discretion, provided that Swipeclock promptly recommences performance upon the cessation of the threat; or (c) if any amount due under any Order Form is not received by Swipeclock within fifteen (15) days after it was due, and Swipeclock provided written notice of same.
- 12.5 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Swipeclock prior to the effective date of termination. In the event of termination by Customer pursuant to Sections 12.2(a), 12.2(c), or 12.3, Swipeclock shall refund to Customer on a pro-rata basis any prepaid fees paid by Customer for the remainder of the then current Subscription Term under the terminated Order Forms. In the event of termination by Swipeclock pursuant to Sections 12.2(b) 12.2(c) or 12.3, all amounts payable by Customer under this Agreement and all Order Forms will become immediately due and payable.
- 12.6 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of an Order Form or this Agreement, Customer’s and its Users’ rights to access and use the Service will immediately terminate, and Customer and its Users will immediately cease all use of the Service. Swipeclock may destroy any Customer Content in its possession or control; provided, that Customer shall have at least thirty (30) days following the effective date of the expiration or termination of an Order Form or this Agreement to download its Customer Content from the Service. Notwithstanding the foregoing and to the extent permitted by law, Swipeclock will not provide access to the Customer Content from Customer’s account if Swipeclock believes that such Customer Content violates the rights of Swipeclock or third parties, or if Customer has not paid all undisputed fees owing to Swipeclock. Swipeclock shall have no liability to Customer or any third party for any termination or expiration of this Agreement.
- 12.7 Survival. Sections 1, 3.4, 3.5, 7, 8, 9.3, 10, 11, 12.5, 12.6, and 13 shall survive any termination or expiration of this Agreement.
- 13.1 Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Utah, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each Party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the State of Utah. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The Parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation.
- 13.2 Export; Anti-Corruption. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing: (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Service in violation of any U.S. export embargo, prohibition or restriction. Both Parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act and/or the Organization for Economic Cooperation and Development prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, Each Party represents and warrants that it has not and shall not at any time during the Term of the Agreement pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of any government official, political party, or candidate for political office, or any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with this Agreement.
- 13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- 13.4 Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- 13.5 Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein, constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into this Agreement, unless such untrue statement was made fraudulently. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form, or dependent upon any oral or written, public or private comments made by Swipeclock with respect to future functionality or features for the Service. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
- 13.6 Attorney’s Fees. Customer shall pay on demand all of Swipeclock’s reasonable attorney fees and other costs incurred by Swipeclock to enforce this Agreement or to collect any fees or charges due Swipeclock under this Agreement following Customer’s breach of its payment obligations under this Agreement.
- 13.7 No Assignment. Neither Party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, without the other Party’s prior consent, either Party may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of such Party’s assets, stock or business, so long as, with respect to any assignment by Customer, such assignment is not to a competitor of Swipeclock. Swipeclock may engage third party subcontractors, service providers or agents in performing Swipeclock’s duties and exercising its rights hereunder. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
- 13.8 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement, if, and only if, such delay is caused by a labor dispute, strike, shortage of materials, fire, earthquake, flood, terrorism, Internet disruption, failure of an ISP, utility or telecommunications disruption, denial of service attack, failure of supplier, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts under the circumstances to notify the other Party of the cause of such delay and to resume performance as soon as commercially practicable.
- 13.9 Independent Contractors. Swipeclock’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
- 13.10 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it.
- 13.11 Notices. All notices under this Agreement shall be in writing. All notices shall be given and deemed effective: (a) by delivery in person; (b) by a nationally recognized next day courier service with tracking notice of delivery; (c) by first class, registered or certified mail, postage prepaid with tracking notice of delivery; or (d) by electronic mail to the address of the Party specified in this Agreement or an Order Form with explicit acknowledgment of receipt by the intended recipient (other than an automated response). Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
- 13.12 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement or any Order Form delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement or the Order Form.
- 13.13 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) “or” has the inclusive meaning frequently identified with the phrase “and/or”; (c) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”; and (d) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The Parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party, and that ambiguities shall not be interpreted against the drafting Party.