Appendix B: Pacific Timesheet U.S. Program License Agreement
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE DEFINED PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
- PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
"PACIFIC TIMESHEET" is Pacific Timesheet or one of its subsidiaries or affiliates.
"License Information" ("LI") is a document that provides information specific to a Program. The LI may also be found in a file in the Program's directory, by the use of a system command, or as a booklet which accompanies the Program.
"Program" is the following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related licensed materials, and 5) license use documents or keys, and documentation.
A "Proof of Entitlement" ("PoE") is evidence of Your authorization to use a Program at a specified level. That level may be measured, for example, by the number of named servers, processors or users. The PoE is also evidence of Your eligibility for warranty, future upgrade prices, if any, and potential special or promotional opportunities. If PACIFIC TIMESHEET does not provide You with a PoE, then PACIFIC TIMESHEET may accept the original paid sales receipt or other sales record from the party (either PACIFIC TIMESHEET or its reseller) from whom You acquired the Program, provided that it specifies the name of the Program and the usage level acquired.
"You" and "Your" refer either to an individual person or to a single legal entity.
This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms (if any), License Information, and Proof of Entitlement and is the complete agreement between You and PACIFIC TIMESHEET regarding the use of the Program. It replaces any prior oral or written communications between You and PACIFIC TIMESHEET concerning Your use of the Program. The terms of Part 2 and License Information may replace or modify those of Part 1.
1. Entitlement
License
The Program is owned by PACIFIC TIMESHEET or a Pacific Timesheet supplier, and is copyrighted and licensed, not sold.
PACIFIC TIMESHEET grants You a nonexclusive license to use the Program when You lawfully acquire it. You may 1) use the Program up to the level of use specified in the PoE and 2) make and install copies, including a backup copy, to support such use. The terms of this license apply to each copy You make. You will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Program.
If You acquire the Program as a program upgrade, after You install the upgrade You may not use the Program from which You upgraded or transfer it to another party.
You will ensure that anyone who uses the Program (accessed either locally or remotely) does so only for Your authorized use and complies with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or 3) sublicense, rent, or lease the Program.
PACIFIC TIMESHEET may terminate Your license if You fail to comply with the terms of this Agreement. If PACIFIC TIMESHEET does so, You must destroy all copies of the Program and its PoE.
2. Money-back Guarantee
If for any reason You are dissatisfied with the Program and You are the original licensee, You may obtain a refund of the amount You paid for it, if within 30 days of Your invoice date You return the Program and its PoE to the party from whom You obtained it. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund.
3. Program Transfer
You may transfer a Program and all of Your license rights and obligations to another party only if that party agrees to the terms of this Agreement. When You transfer the Program, You must also transfer a copy of this Agreement, including the Program's PoE. After the transfer, You may not use the Program.
4. Charges
The amount payable for a Program license is a one-time charge. Maintenance and support fees are recurring charges that are based upon the quoted Program license fees. See Maintenance and Technical Support Services.
One-time charges are based on the level of use acquired which is specified in the PoE. PACIFIC TIMESHEET does not give credits or refunds for charges already due or paid, except as specified elsewhere in this Agreement.
If You wish to increase the level of use, notify PACIFIC TIMESHEET or the party from whom You acquired it and pay any applicable charges.
If any authority imposes a duty, tax, levy or fee, then You agree to pay the amount specified or supply exemption documentation. You are responsible for any personal property taxes for the Program from the date that You acquire it.
3. Limited Warranty
PACIFIC TIMESHEET warrants that when the Program is used in the specified operating environment it will conform to its specifications. The warranty applies only to the unmodified portion of the Program. PACIFIC TIMESHEET does not warrant uninterrupted or error-free operation of the Program or that PACIFIC TIMESHEET will correct all Program defects. You are responsible for the results obtained from the use of the Program.
PACIFIC TIMESHEET provides You with technical support and access to PACIFIC TIMESHEET databases containing information on known Program defects, defect corrections, restrictions, and bypasses at no additional charge. If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved through technical support or with information available in the PACIFIC TIMESHEET databases, You may return the Program and its PoE to the party (either PACIFIC TIMESHEET or its reseller) from whom You acquired it and receive a refund in the amount You paid. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
5. Limitation of Liability
Circumstances may arise where, because of a default on PACIFIC TIMESHEET's part or other liability, You are entitled to recover damages from PACIFIC TIMESHEET. In each such instance, regardless of the basis on which You may be entitled to claim damages from PACIFIC TIMESHEET, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), PACIFIC TIMESHEET is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) the amount of any other actual direct damages up to the charges for the Program that is the subject of the claim.
This limitation of liability also applies to PACIFIC TIMESHEET's Program developers and suppliers. It is the maximum for which they and PACIFIC TIMESHEET are collectively responsible.
UNDER NO CIRCUMSTANCES IS PACIFIC TIMESHEET, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
A. LOSS OF, OR DAMAGE TO, DATA;
B. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
C. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6. General Terms
Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
You agree to comply with all applicable export and import laws and regulations.
You agree to allow PACIFIC TIMESHEET to store and use Your contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors, Business Partners, and assignees of PACIFIC TIMESHEET for uses consistent with their collective business activities, including communicating with You (for example, for processing orders, for promotions, and for market research).
Neither You nor PACIFIC TIMESHEET will bring a legal action under this Agreement more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation.
Neither You nor PACIFIC TIMESHEET is responsible for failure to fulfill any obligations due to causes beyond its control.
This Agreement will not create any right or cause of action for any third party, nor will PACIFIC TIMESHEET be responsible for any third party claims against You except, as permitted by the Limitation of Liability section above, for bodily injury (including death) or damage to real or tangible personal property for which PACIFIC TIMESHEET is legally liable.
7. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and PACIFIC TIMESHEET consent to the application of the laws of the country in which You acquired the Program license to govern, interpret, and enforce all of Your and PACIFIC TIMESHEET's rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods does not apply.
8. Jurisdiction (See Exhibit E)
All of our rights, duties, and obligations are subject to the courts of the country in which You acquired the Program license.
9. Confidentiality
The parties acknowledge that by virtue of their licensing, support services or consulting relationship the parties may have access to information that is confidential. Both parties can share such confidential information inside their own organizations or with partners and affiliates to fulfill the terms of this Agreement.
Notwithstanding any provision contained in this Agreement, neither party will be required to maintain in confidence any of the following information:
A. information, which, at the time of disclosure to the receiving party, is part of the public domain;
B. information, which, after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement;
C. information which was in the receiving partys possession (as reflected in its written records) at the time of disclosure by the disclosing party, and which was not acquired, directly or indirectly, from the disclosing party;
D. information which the receiving party can demonstrate, by written documents, resulted from its own research and development, independent of disclosure from the disclosing party;
E. information which the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis;
F. information, which is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
10. Maintenance and Technical Support Services
When You have paid appropriate maintenance and technical support charges, PACIFIC TIMESHEET will provide maintenance and technical support services as described in Exhibit B.
Maintenance and technical support services are provided for twelve months or one year terms and will renew on an Anniversary Date (Anniversary). Maintenance and technical support services will renew for an additional twelve-month term on the Anniversary each year automatically unless You or PACIFIC TIMESHEET terminate this agreement by email or in writing at least ninety (90) days prior to the Anniversary. Maintenance and technical support services shall begin on the earlier of 1) the installation of the program or software, or 2) the execution date of this Agreement.
If You do not pay maintenance and technical support services fees for any reason, PACIFIC TIMESHEET will no longer be obligated to provide maintenance or technical support services. After discontinuing maintenance and technical support services fees You can reinstate these services by paying PACIFIC TIMESHEET the then listed annual maintenance and technical support services fees charged to other customers and all unpaid past maintenance and technical support services fees. If You do not make required maintenance and technical support fees, PACIFIC TIMESHEET can suspend or cancel your maintenance and technical support services.
PACIFIC TIMESHEET is under no obligation to support altered, damaged, or modified Software or Customized Software, which has not been modified or customized by PACIFIC TIMESHEET or its affiliates; Software or Customized Software that is not the then-current or previous sequential release; Software or Customized Software problems caused by Your negligence, hardware malfunction or other causes beyond the control of PACIFIC TIMESHEET, or; Software or Customized Software installed in an operating environment or in a hardware environment for which the Software or Customized Software has not been licensed; Software problems administered by uncertified customer technical administrators.
11. Fees and Payment Terms
You will pay PACIFIC TIMESHEET the fees specified in final Quotes.
All fees are due and payable within thirty (30) days of the date indicated on each invoice. You are responsible for all sales and use taxes concerning the Software and/or services, and associated shipping costs. Overdue payments will bear interest at the lesser of eighteen percent (13%) per annum or the maximum rate allowed under applicable law.
12. Title, Protection and Equitable Relief
PACIFIC TIMESHEET (or its licensors) retains title to all portions of the Software (including Customized Software and Developments) and Documentation and any and all copies thereof. The Software and Documentation contain valuable proprietary information, and You will not disclose the Software or Documentation to anyone other than those of its employees or consultants under nondisclosure obligations who have a need to know for purposes consistent with this Agreement. The obligations set forth in this paragraph will survive any termination of this Agreement.
13. Infringement
PACIFIC TIMESHEET will defend and indemnify You for all costs (including reasonable attorneys fees) arising from a third partys claim that the Software, if furnished and used within the scope of this Agreement, infringes any copyright or patent; provided that: You notify PACIFIC TIMESHEET in writing within 30 days of its receipt of actual or constructive notice of any such claim; PACIFIC TIMESHEET shall have sole control of the defense and all settlement negotiations relating to such claim; and You shall provide PACIFIC TIMESHEET with the cooperation, assistance, information, and authority necessary for PACIFIC TIMESHEET to perform the above.
14. Default and Termination
An event of default will be deemed to have occurred if either party fails to perform any material obligation under this Agreement and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof.
Within fifteen (15) days after termination of this Agreement, You will certify in writing to PACIFIC TIMESHEET that all copies of the Software (including Customized Software and Restricted Releases) and Documentation in any form, including partial copies, have been destroyed or returned to PACIFIC TIMESHEET. Failure to destroy or return such materials to PACIFIC TIMESHEET shall constitute misappropriation actionable at law and in equity and Licensee shall be liable to PACIFIC TIMESHEET and/or its licensors and affiliates for damages resulting from such misappropriation.
Authorized Client Representative
Authorized Signature
Printed Name and Title
Date
For Pacific Timesheet
Authorized Signature
Printed Name and Title
Date
EXHIBIT A
Maintenance and Technical Support Services
A. Program Maintenance
While You are in compliance with the terms of this Agreement, various upgrades and updates to the program will be made available to You. If you are not in compliance with this Agreement, for example, letting maintenance and technical support services fees lapse for any reason, You will not legally be able to access upgrades and updates to the program. Any such access will be considered infringement. A set of Documentation and one machine executable copy of the object code for updates and upgrades to the Software will be made available on a periodic basis for testing and upgrade purposes. You are licensed to maintain at least one test instance of the program for the purposes of upgrading and updating the program.
B. Support
Voice, e-mail and other remote hands rapid technical support services will be provided to two (2) employees designated by You for use of the current release of the program. A prior major release of the program will be supported for up to twelve (12) months after release of the subsequent major release. Standard support will be provided during the hours of 6 a.m. to 6 p.m. prevailing Pacific Time Monday through Friday, excluding PACIFIC TIMESHEET holidays.
Client System Admin 1: ___________
Client System Admin 2: _______________________________________
Each named System Admin will be certified through required Administrator Training on the program. When a new System Admin is named, it is mandatory that he/she attends PACIFIC TIMESHEETs System Administrator Training within thirty (30) calendar days of assuming their duties as a System Administrator.
Extended or additional support or maintenance agreement terms will be specified in the Quotes.
Exhibit B: Service Level Agreement (SLA)
Pacific Timesheet will make its best efforts to fix reproducible errors reported by You in an unmodified release of the program using the following levels of priority:
When Issue is Logged Request Type Expected Response Time Expected Resolution Time
During Contracted Technical Support Hours Level 1: Showstopper
Issue that causes inability to use program or system downtime. Within one hour Best efforts with s