Perpetual Terms and Conditions
THIS AGREEMENT is entered into as of ______________________________ ("Effective Date"), by and between TimeClock Plus, LLC, a Delaware limited liability company with its principal office located at 1 Time Clock Drive, San Angelo, TX 76904 ("TCP"), and
its principal office located at _______________________________________________ ("Client").
WHEREAS, TCP and Client (the "Parties") desire to enter into this Agreement for the provision of hosted services by TCP to Client, as provided herein.
NOW, THEREFORE, in reliance on the mutual covenants and promises, representations and agreements set forth herein, the parties agree as follows:
2.1 "Active Employee" means a Client Employee who is not marked suspended or terminated. For purposes of Employee Licensing Fees, an active employee is one who has been marked as active within the TimeClock Plus system on any date, no matter the duration of being marked active, and such employee will be subject to the Employee License requirements.
2.2 "Employee" means Client's employee, agent or contractor for whom Client has agreed to pay an Employee Licensing Fee under this Agreement.
2.3 "Services" means the right to access and use TimeClock Plus Software, our website, or the User website interface provided by TCP; including, but not limited to, update servers, mobile apps, knowledge base, and support communities.
2.4 "Employee Licensing Fee" means TCP's then current fee for each of Client's Employees to access and use the Services as outlined on the Master Service Order Form.
2.5 "Software" means the TimeClock Plus Software and associated modules authorized for Client access and use under this Agreement.
2.6 "User" means Client Employees who are not added to the TimeClock Plus Software database as an Employee, but are physically added as Users within the Software with management rights. Users will not be considered Employees and will not incur Employee Licensing Fees, except Users who are added to the database as Employees as well as Users, who are effectively considered Employees and an Employee Licensing Fee will be assessed for each.
2.7 "Overages" means the Employee Licensing Fee due as a result of an Active Employee added to the Services in excess of those outlined on the Master Service Order Form. Client is responsible for reporting such Overages for which you will be charged the applicable Employee Licensing Fee.
2.8 "Personal Data" means any information that can be used to identify, locate or contact an Employee or User.
2.10 "Employee License" means the Active Employee license of the Software required for a single Employee to use the Services pursuant to this EULA.
USE AND ACCESS. TCP grants Client a nonexclusive, non-transferable, royalty-free license to access and use the Services, where the maximum number of Active Employees in the TimeClock Plus Software does not exceed the number of Employee Licenses purchased in conjunction with Services as reflected on the Master Service Order Form, for the limited purpose of providing collection, management, and disbursement of Client's accumulated data as specified below, all solely within and subject to the terms, conditions, and limitations herein.
Client may install the Software on a single server, and the Software may be accessed via a web browser by the number of Employees equal to or less than the number of Employee Licenses purchased in conjunction with the Software license.
Client will use the Software and Services only for its internal business operations and will not permit the Services to be used by or for the benefit of anyone other than Client. Client will not have the right to re-license or sell rights to access and/or use the Services, except as expressly provided herein. Client will not transmit or share identification or password codes to persons other than authorized TimeClock Plus Employees or Users nor permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized Users. Client will be responsible for all equipment and software required for Client to access the Internet including, without limitation, a web browser compatible with the Services. Client acknowledges that TCP is not responsible for any use or misuse of the Services by Client or its employees or contractors.
FUNCTIONALITY. The Software is capable of providing the functionality found in TCP's official product documentation. Differing versions of TimeClock Plus Software, such as Small Business Edition, Professional Edition, Enterprise Edition as well as future Products may have differing functionality as specified in their product documentation.
TECHNICAL SUPPORT. TCP will make available to Client access to TCP's standard instructional materials that TCP generally makes available to Clients for the Software. There may be a charge for any additional assistance or support requested by Client, including telephone and chat support. All Support is for TCP's Products and Services only, excluding third party payroll software, operating platforms, networking, Client's hardware or anything not originally created and sold by TCP to Client unless expressly agreed upon otherwise. TCP is not responsible for providing maintenance, support or assistance related to Client's operating systems, network, communications, hardware or other Client specific matters. If Client desires additional ongoing assistance, a Support Agreement must be separately negotiated and agreed to for an additional price.
SOFTWARE UPGRADES. From time to time TCP will release new reversions of TimeClock Plus Software. TCP will provide Client, under the terms of this Agreement, with access to updates to the Software as TCP generally makes such updates available to other similar clients. Software updates are minor additions, enhancements, or fixes to the Software. Updates do not include upgrades to newer versions of the Software.
HARDWARE MIGRATION, TESTING, AND BACKUPS: Client shall install the Software on a single production server. However, Client may change the particular production server in which Client is authorized to use the Software to another production server within Client's immediate business organization if the Software is no longer used on any former production server. Client may install up to three (3) copies of the Software on additional servers for backup and testing purposes only.
PAYMENT. Client shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments will be made in advance of the Service being provided or as otherwise mutually agreed on the Master Service Order Form. All payment obligations are non-cancellable and all amounts paid are non-refundable. If you elect to dispute charges or fees, you must contact TCP in writing within fifteen (15) days of the date of the invoice in question to be eligible to receive an adjustment or credit.
FEES & CHARGES. Client may add additional Employee Licenses at any time, by paying the Employee Licensing Fees. Employees added in excess of the Employee Licenses purchased by Client require the purchase of an Employee License. Client is responsible for reporting these Overages and purchasing the necessary Employee Licenses for all Active Employees. If TCP is required by law to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on TCP's net income, then such taxes and/or duties will be billed to and paid by Client immediately upon Client's receipt of TCP's invoice and supporting documentation for the taxes or duties charged.
9.1 Initial Product. The fees to be paid by Client to TCP for the Product (Software and Hardware, if any) which Client is obtaining from TCP pursuant to this EULA are specified on the Master Service Order Form or Invoice Prices for software include the licensing for the Software as well as a number of Employee Licenses.
9.2 Additional Product. The fees to be paid by Client to TCP for additional Product (Software and Hardware, if any) which Client does not obtain from TCP at this time shall billed at the then current fees for Product. Prices for Product may be changed from time to time by TCP without notice to Client until the Client's new order is accepted by TCP.
9.3 Software Updates. TCP currently makes certain Software updates accessible to qualified Clients at no cost. If TCP elects in the future to charge for such updates, the fees to be paid by Client to TCP for Software updates shall be TCP's standard client level prices, as they may be changed from time to time by TCP.
10.1 Perpetual Licenses. Client's license to use the Software is delivered to Client pursuant to this EULA is perpetual, unless sooner terminated in accordance with the provisions hereof.
10.2 Other Items. Access to Software updates, receipt of support and services from TCP, purchase of Hardware and other Products or goods from TCP and all other additional tangible and intangible things or rights beyond Client's license to use the Software delivered to Client pursuant to this EULA may be conditioned upon future new and additional agreements and payments.
11.1 Mutual Cancellation. This EULA may be terminated by mutual agreement between TCP and Client, by both parties' mutual consent in writing to such a cancellation. Termination pursuant to mutual agreement shall have the same effect as termination generally except to the extent that the parties may otherwise agree in a signed writing.
11.2 Termination. Client may terminate this Agreement at any time by notifying TCP in writing thirty (30) days prior to the termination date. TCP may only terminate this Agreement for cause, including, without limitation, failing to pay fees when due to TCP, failing to protect TCP's proprietary rights to the Software, or Client's failure to comply with any term of this Agreement, or without limitation, any of the guidelines, requirements, or monetary terms incorporated here by reference, or Client becomes insolvent or bankrupt or ceases to do business, or TCP choosing to cease offering to license the Software to Client's class of clients in Client's county. TCP may suspend performance upon Client failing to pay fees when due until such fees are paid. If a default is both a material substantial breach and incurable, such as a knowing failure to protect TCP's proprietary rights to the Software by permitting a competitor of TCP to have access to the Software, termination may be made with immediate effect. If Client commits acts which, in TCP's good faith determination, substantially adversely affect the parties' relationship after Client has been warned in writing concerning same; such as documented repeated abuse of TCP's staff, repeated publication of statements hostile to TCP or derogatory concerning the Software, or a pattern of repeated breaches of this Agreement, then TCP may terminate this Agreement.
11.3 Effect of Termination. In the event of termination, Client will immediately discontinue all use of the Software and remove and return all versions and copies (digital, paper, or otherwise) and all associated materials to TCP and deliver to TCP Client's unconditional verification that this has been completed. Termination does not affect any right to fees earned prior to the termination. Without limiting the general survivability of terms which, by their nature, survive termination, the provisions herein concerning confidentiality and proprietary rights, ownership, and limitations of warranties and liability, Intellectual Property, dispute resolution, and all other obligations which, by their terms imply that they are intended to survive termination, expressly survive termination. Neither termination nor the existence of claims by Client against TCP is a defense to TCP's immediate enforcement of any obligation. TCP is not liable for any termination compensation whether based on goodwill, investments made, or otherwise. If a notice of termination or a notice of intent to terminate is given by TCP, then no communication from TCP except a written communication issued directly by TCP's President is effective to delay, waive, modify, revoke, or otherwise change the notice or its effect.
12.1 Independent Businesses. This EULA does not create an agency, partnership or joint venture. Neither party will represent itself as an agent, representative or partner of the other. All restrictions and requirements TCP imposes on Client herein or elsewhere solely concern the relationship between TCP and Client. Day-to-day conduct of business by Client and Client 's employees including, without limitation, employee relations and safety, payment of salary, overtime, bonuses, taxes and other liabilities, work performed for customers, goods delivered to customers, Personal Data confidentiality, applicable data subject rights, etc., shall be controlled solely by Client and not by TCP. TCP has no power to instruct Client or Client's employees to do or not do any specific thing or practice except as set forth herein. The standards and restrictions herein relate solely to the parties' rights with respect to each other and do not control Client's actions or failure to act with respect to Client's customers, employees, or other third parties. Client may not use TCP's name, trademarks, or logos in a way which implies to the public, suppliers, creditors or others that Client's business is an agent for TCP or has any association with TCP beyond having a legal right to use the Software. Neither party will make any promises or representations concerning the other, or its goods or services, except as expressly authorized in writing. Each party is an independent entity solely responsible for its own management, safety, legal compliance, data protection, employee relations, taxes, hiring, firing, operations, goods, services, etc. Every contractual duty herein is subservient to the parties' obligation to the public to do all things necessary for public and employee safety and to comply with all applicable laws. Neither party is liable under any circumstance for any act, omission, contract, debt, or other obligation of the other.
12.2 Standards. Client shall comply with all applicable laws and regulations relating in any way to Client's use of the Product; keep the original Software media and all copies in Client's possession and direct control; not engage in any activity which results or may reasonably be anticipated to result in harm to the reputation of TCP or TCP's Products or litigation against or public criticism of TCP or TCP's Products; never threaten to breach the EULA or indicate to any entity that Client is not bound by it; not allow or engage in unlawful, unsafe, or unethical practices; rely solely on Client's own attorney's advice in these regards; and obtain all necessary governmental approvals and licenses for all acts taken by Client under or relating to this EULA and deliver copies of the same to TCP upon TCP's request. Client will ensure that Client's relationship with TCP is conducted in strict compliance with this EULA. Client will not enter into agreements that conflict with Client's obligations to TCP.
12.3.1 Instructions. TCP, as Subprocessor, will process certain categories and types of Personal Data only upon Client's instructions and in accordance with applicable data protection laws (e.g. GDPR). Client is responsible for ensuring those who provide instructions are authorized to do so and agrees that TCP will only perform processing activities that are necessary and relevant to support the Software. Under this perpetual licensing agreement, TCP will only process Personal Data for the purposes of supporting the Services and will not have any access to Personal Data unless provided by Client for the purposes of technical support.
12.3.2 Requests. Client will have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which is was obtained. Client agrees to adopt a balanced and reasonable policy for managing Subject Access Requests (SARs) and 3rd party disclosures which safeguard the rights of all data subjects and respects the original purpose of the data collection. Client, as both Data Controller and Data Processor, will be responsible for receiving, investigating, documenting, and responding to all data subject requests for inspection or erasure of Personal Data.
12.3.3 Assistance. Should Client receive a request from a data subject for the exercise of the data subject's rights under applicable data protection laws, and the correct and legitimate reply to such a request necessitates TCP's assistance, TCP shall assist the Client by providing the necessary information and documentation. TCP shall be given reasonable time to assist the Client with such requests in accordance with the applicable law.
12.3.4 Confidentiality. TCP shall treat all Personal Data as strictly confidential information that may not be copied, transferred, or otherwise processed without the instruction of the Client. Transfer of Personal Data to another data controller or data processor (e.g. HRIS or Payroll application) is at the sole discretion of the Client and shall comply with applicable data protection laws.
12.3.5 Indemnity. Client acknowledges that TCP may not know the applicable data protection rights of any given Employee and agrees to indemnify and hold harmless TCP from any and all direct claims, damages and demands, including reasonable attorney's fees, arising out of Client's violation of applicable data protection laws. Nothing in this Agreement relieves TCP of its own direct responsibilities and liabilities under the applicable data protection laws.
WARRANTY AND DISCLAIMER. EXCEPT AS EXPRESSLY STATED HEREIN, TCP EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OF ANY INFORMATIONAL CONTENT OR THOSE ARISING BY STATUTE, OF CONFORMITY TO ANY REPRESENTATIONS OR DESCRIPTIONS NOT CONTAINED HEREIN, OR OTHERWISE IN LAW OR FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, TCP DOES NOT WARRANT THAT ANYTHING WILL MEET CUSTOMER'S REQUIREMENTS, WILL BE UNINTERRUPTED, SECURE, RELIABLE, ACCURATE OR ERROR-FREE. TCP HAS NO OBLIGATIONS CONCERNING PRODUCTS OR SERVICES USED OUTSIDE THE U.S.A. UNLESS THEY ARE STATED IN WRITING BY TCP TO BE EXPORT PROGRAM PRODUCTS AND ARE ISSUED AN EXPORT PROGRAM WARRANTY. TCP'S OBLIGATIONS, IF ANY, ARE CONDITIONAL ON CUSTOMER PROMPTLY COMPLYING WITH ALL OF THIS AGREEMENT'S TERMS AND CONDITIONS. CUSTOMER ACCEPTS SERVICES "AS IS" AND WITH ALL FAULTS. THE LIMITED WARRANTIES AND REMEDIES IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES CONCERNING ANY GOODS, SERVICES, OR INTANGIBLES, NOW OR IN THE FUTURE.
LIABILITY LIMITATION. IN NO EVENT SHALL TCP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR REMEDIES RELATING TO SERVICES OR ANY TCP PRODUCTS, GOODS, OR INTANGIBLES (EXCLUDED DAMAGES INCLUDE, WITHOUT LIMITATION, FOR LOST PROFITS, BUSINESS INTERRUPTION, COSTS OF DELAY, FAILURE OF DELIVERY, REVENUE, GOODWILL, LOST OR DAMAGED DATA, DOCUMENTATION OR EQUIPMENT, LOSS OF BUSINESS INFORMATION, COST OF REMOVAL OR INSTALLATION OF ANYTHING, INTERCEPTIONS, DEFECTS, VIRUSES, DELAYS, OR FAILURE OF PERFORMANCE, OTHER LOSS ARISING OUT OF USE, OR INABILITY TO USE SERVICES, LIABILITIES TO THIRD PARTIES, INABILITY TO USE TIMECLOCK PLUS ONDEMAND SERVICES, ERRORS IN THE SOFTWARE, MALFUNCTIONS OR ERRONEOUS DATA, PAYMENTS TO THIRD PARTIES WHICH ARE TOO SMALL, TOO LARGE, TOO LATE OR ARE OTHERWISE IMPROPER), EVEN IF TCP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION (INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT, WARRANTY, ETC.), ANY ASSERTED TCP BREACH OF PROMISE OR WARRANTY; ANY ACT OR FAILURE TO ACT; NEGLIGENCE INCLUDING GROSS NEGLIGENCE; OR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL TCP'S LIABILITY (FOR ALL CAUSES OF ACTION), EXCEED THE AMOUNT PAID BY CUSTOMER TO TCP FOR TOTAL MONTHLY EMPLOYEE FEES PAID TO TCP FOR THE PRECEDING 3 MONTHS FROM THE DATE OF THE INCIDENT. THESE LIMITATIONS ARE INDEPENDENT AND APPLY REGARDLESS OF THE BASIS OF THE CLAIM, INCLUDING, BUT NOT LIMITED TO, A FINDING THAT A WARRANTY, CONDITION, OR REMEDY HAS FAILED ITS ESSENTIAL PURPOSE, BREACH OF CONTRACT (INCLUDING, BUT NOT LIMITED TO, FUNDAMENTAL BREACH), TORT, (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MISREPRESENTATION), BREACH OF STATUTORY DUTY, OR OTHER LEGAL OR EQUITABLE THEORY. ANY CAUSE OF ACTION CUSTOMER MAY HAVE AGAINST TCP, ITS AFFILIATES, OFFICERS AND AGENTS MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES OR SHALL BE FOREVER BARRED. TCP'S MAXIMUM AGGREGATE LIABILITY SHALL NEVER EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE BASIS OF THE CLAIM.
INTELLECTUAL PROPERTY. The TimeClock Plus Software is licensed to Client, not sold. This EULA does not convey to Client any interest in or to the Software or Services, but only a limited right of use, revocable in accordance with the terms of this EULA. All rights not expressly granted in this EULA are reserved by TCP. All title and copyrights in and to the Software, Product, related materials and copies thereof are always only owned by TCP. All rights not specifically granted to Client under this EULA are reserved by TCP. Client will be the owner of all data or information created by Client and stored on TCP's database servers.
GOVERNING LAW. THIS AGREEMENT IS SOLELY GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE U.S. DEPARTMENT OF COMMERCE. EACH OF THE PARTIES HERETO IRREVOCABLY AGREES TO EXCLUSIVE JURISDICTION BY THE COURTS LOCATED IN TEXAS.
U.S. GOVERNMENT RESTRICTED RIGHTS. If Client is acquiring the Software on behalf of any unit or agency of the United States Government, the following provision applies: It is acknowledged that the Software and the documentation were developed at private expense and that no part is in the public domain and that the Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (C)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs c (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
DISPUTE RESOLUTION. For any dispute, controversy or claims arising out of or relating to this Agreement or the breach, termination, interpretation or invalidity thereof or any Invoice, or Order Form, the parties shall endeavor for a period of two (2) weeks to resolve the Dispute by negotiation. This period may be extended by mutual agreement of the Parties. In the event the Dispute is not successfully resolved, the parties agree to submit the Dispute to litigation in a court of competent jurisdiction.
ASSIGNMENT. This Agreement shall not be assigned by either party without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may, without the prior consent of the other, assign all of its rights under this Agreement to (i) such party's parent company or a subsidiary of such party, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which either party is participating. This Agreement shall bind and insure to the benefit of the parties and their respective successors and permitted assigns.
WAIVERS. Client shall make a timely written request to TCP whenever this Agreement requires approval. TCP's approval must be in writing to be effective and relied upon by Client. TCP assumes no liability or obligation and makes no representation or warranty by denying, granting, or providing any waiver, approval, advice, consent or suggestions to Client or for any neglect, delay or denial of any requests therefore. Failure of TCP to exercise any right, power or option or to insist on strict compliance with the terms hereof will not comprise a waiver with respect to any other or subsequent breach of the same or different nature nor a waiver of TCP's right to at any time require exact and strict compliance with all terms hereof and declare any breach or default. No custom or practice waives TCP's right to demand exact compliance with this Agreement. TCP's rights and remedies herein are cumulative with any other rights or remedies which may be granted by law or equity. It is expressly agreed that the description of any breach or default in any notice by TCP, including, without limitation, a notice of termination, will not preclude the later assertion of other additional defaults or breaches, whether known or unknown at the time of the notice. Subsequent acceptance by TCP of any payments or performance is not a waiver of any preceding breach by Client. TCP reserves the right, from time to time, to waive observance or performance of the whole or any part of an obligation imposed on Client by this Agreement. No waiver of any default of any term, proviso, covenant or condition of this Agreement by TCP constitutes a waiver by TCP of any prior, concurrent or subsequent default of the same or any other term, proviso, covenant or condition hereof.
CONSUMER RIGHTS WAIVER. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, CUSTOMER VOLUNTARILY WAIVES ITS RIGHTS UNDER LAW THAT GIVES PURCHASERS OR CONSUMERS SPECIAL RIGHTS OR PROTECTIONS, INCLUDING, WITHOUT LIMITATION, THE DECEPTIVE TRADE PRACTICES- CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE.
SAVINGS CLAUSE. This Agreement shall be construed, interpreted and reformed to avoid violating any applicable law, and to preserve its intent to the fullest possible extent. If any statute, law, by-law, ordinance or regulation promulgated by any competent authority with jurisdiction over any part of this Agreement or Client's Business or any court order pertaining to this Agreement requires a longer or different notice period than that specified herein, the notice period herein shall automatically be deemed to be amended so as to conform with the minimum requirements of such statute, law, by-law, ordinance, regulation or court order. The unenforceability of any part, segment, or clause hereof will not affect the validity of the remaining portions hereof as the parties would have executed the remaining portions of this Agreement without such portions as may be invalid except that if any portions relating to restrictions on Client or Client's payments to TCP are finally determined to be unenforceable, TCP may elect to terminate this Agreement. Client expressly agrees to be bound to the maximum extent permitted by law, as if separately set forth herein, with respect to any remaining reformed part of this Agreement if it is held to be unenforceable as written. In the event of legislation, government regulation, or changes in circumstances beyond the control of TCP that materially affects the relationship between TCP and the Client, TCP shall have the right to reform and modify this Agreement to the limited extent reasonably needed to both adapt the Agreement to the changed circumstances and preserve the parties' original intent as expressed herein to the greatest extent possible. The parties do not intend to charge usurious rates of interest. If applicable law determines any obligation, charge or payment to be an unlawful charge or overcharge of interest, such obligation, charge or payment is automatically reduced to the maximum lawful rate, the excess to be refunded if already paid, the repayment comprising a complete remedy.
DISCLOSURES. Client has reviewed or had an opportunity to review TCP's website or documentation relevant to the chosen Products and conducted an independent review of all relevant matters, and decided that the same meet Client's expectations. Client accepts sole responsibility for (i) Client's Products configuration, design, and requirements, (ii) selection of the specific Products to achieve Client's intended results, (iii) any modifications or changes to the Products, and (iv) all intended interfacing between and usefulness, if any, of TCP's Products and any non-TCP software, hardware, inputs, output, personnel, or Client's requirements. TCP does not promise or represent that Client will be able to open or continue a business, or that Client's business will be successful. TCP's technical support consists of general guidelines concerning TCP's standard methods, procedures, and guidelines. TCP's technical support is not tailored to any Client's specific circumstances and is not promised or represented to provide any specific benefit or result. TCP does not promise or represent that TCP will repurchase anything from Client. No one at TCP has authority to make representations or promises which are contrary to or which modify, or extend anything stated in this Agreement except pursuant to a writing signed by TCP's President or a designated representative. Client acknowledges that it has had ample opportunity to seek legal counsel and analyze and negotiate the various provisions herein and to review, compare and analyze all aspects and characteristics of the Products.
AMENDMENT. TCP reserves the right, at its sole discretion, to amend this EULA from time to time. If there is a conflict between this EULA and the most current version of this EULA, the most current EULA which may be posted at www.timeclockplus.com/perpetualtermsandconditions.aspx, will prevail. If Client does not accept amendments made to this agreement, then this license will be immediately terminated pursuant to "Terms and Termination". Client accepts this EULA in its electronic format each time Client opens or executes TCP's Software. TCP may change the EULA from time to time, including, without limitation, material changes and changes to the parties' rights and obligations and to then currently available Product or fees. The most current EULA entered into between Client and TCP shall govern all past, then current, and future transactions and all of the parties' rights, duties, and relationship unless and until a different EULA is subsequently entered into between the parties.
ACCEPTANCE. Client's acceptance of this Agreement is indicated by Client's execution of this Agreement or the Master Service Order Form, or installing or using any part of the Software, or downloading or installing any part of an update, module, fix, or revision to the Software which has been made available by TCP. Client's acceptance of the then-current EULA as then currently posted on TCP's website is made and reaffirmed each time Client performs any of these actions.
ENTIRE AGREEMENT. This document in conjunction with the Master Service Order Form make up this complete Agreement, and it is solely the exclusive, complete, and entire Agreement between the parties superseding all prior representations or other agreements concerning its subject matter and supersedes any and all prior communications, proposals, advertising, discussions, representations, and understandings.
- SEVERABILITY. If any term of this Agreement is found to be unenforceable or contrary to law, the remaining portions of this Agreement will remain in full force and effect.
19.1 WAIVER OR JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
19.2 CLASS ACTION WAIVER. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.