Terms & Conditions

The term “Service” or “Services”, as used in this Agreement, is defined as the transmission of data through Customware’s network of servers and communication channels to and from the Internet, under the terms and subject to the conditions of this Agreement. The terms and conditions of this Agreement shall constitute the entire agreement between Customware and the Client and may not be altered except as set forth herein. Any additional or different provisions contained in any acknowledgements, sales memoranda, invoices or in other documents issued against or in response to this Agreement that purport to alter or vary any of the terms and conditions of this Agreement are hereby rejected and objected to in advance and shall not become a part of the parties’ contract.

1. Services and Payment of Subscription Fees. For and in consideration of Services provided by Customware under this Agreement, the Client agrees to pay Customware the fees as calculated based on options selected and equipment rented. Before services are provided or equipment is delivered, Client agrees to pay Customware, Inc. prior to the provision of Services or delivery of any equipment related to such Services, the Initial Fee, and any Subscription Fee thereafter, unless a prepay agreement has been specified, the Subscription Fee shall be due and payable based on the payment options selected. (monthly, quarterly, annually, credit card or invoice. Payment of the Subscription Fee shall be due no later than the first (1^st) day of each payment period.
   1. Initial Fee. The Client agrees to pay the Initial Fee (the “Today’s Total”), as displayed above, upon execution of this Agreement. The Initial Fee, which includes fees for equipment, is non-refundable. Setup and Service will not begin until Customware receives the Initial Fee.
   2. Subscription Fee. During the term of this Agreement, Client agrees to pay Customware a fee for the provisions of Service (“Subscription Fee”), payable based on the payment options selected in advance in accordance with this Paragraph, calculated based on the Employee Count and level of Service provided, as set forth under Paragraph 9. The Subscription Fee is non-refundable. Client may request a change in Employee Count and level of Service at any time. The new Subscription Fee will be calculated based on current pricing at the time of the change. All provisions of this Agreement will remain in full force and effect. For increased Service, the change will be effective upon Customware’s receipt of the additional Subscription Fee. For reduced Service, the amended fee will be effective at the beginning of the next payment period based on the payment option selected.
   3. On-Time Web Service. The Subscription Fee will be for the following services (together, the Service known herein as “On-Time Web Service”):
      1. On-Time Web Service.Setup and configuration of service.One free training class for the Client’s On-Time Web administrator, which must take place within thirty (30) days of the date of this Agreement. Training may be held via the Internet. Customware reserves the right to schedule and limit the class time allowed at their discretion.
      2. Time Clock Rental. Time Clock Units (“Unit”) consist of one (1) OT1000 Time Clock and one (1) UPS battery backup. All Units are rented for a monthly fee and are the property of Customware.
         1. A Security Fee of $100 plus shipping costs are required for each Unit before installation.
         2. Client agrees to allow Customware representatives access to their facilities to service, repair, replace, or retrieve Units, as Customware deems necessary. Clients in excess of 30 miles from Customware’s home office agree to ship Units at their expense, to Customware as Customware deems necessary.
         3. Client agrees to allow Customware representatives access to their facilities to service, repair, replace, or retrieve Units, as Customware deems necessary. Clients in excess of 30 miles from Customware’s home office agree to ship Units at their expense, to Customware as Customware deems necessary.
         4. Customware will repair or replace Units at no cost to the Client in cases of equipment defect or failure except when due to vandalism, damage, power surges, failure to provide a proper operating environment, or acts of God. In those cases, Client agrees to pay Customware $750.00 minus the Security Fee for replacement of each Unit and return the defective equipment to Customware.
         5. Upon termination of the Client’s Service for any reason, Client agrees to pay Customware $750.00 minus the Security Fee for each Unit not returned or not returned in acceptable condition within 10 days of termination of the Service.
   4. Maintenance and Backup of Data. Customware does not maintain or backup the Client’s data. The Client understands that they are responsible for maintaining their own data, which includes, but is not limited to, maintaining a current backup of their data. Customware maintains a daily backup of data for internal use only in case of a catastrophic event. However, in the event of a catastrophic occurrence at the Client’s site, Customware may work with the Client to try to restore their data. This work is considered outside the scope of the Service and will be billed in addition to any Service Fees in this Agreement at Customware’s full hourly rate.
2. Software and Service Deliverables. All right, title and interest, including all intellectual property rights, in and to any software, the Services, Service deliverables, or documentation provided by Customware are owned by Customware or its suppliers, as applicable, and are protected by intellectual property laws, including copyright, patent, trademark, and/or trade secret laws. The Agreement is not a sale and does not convey to Client any rights of ownership in or related to the software, Services, documentation, proprietary technology or the intellectual property rights owned by Customware and its suppliers. All Service deliverables developed by Customware shall be the property of Customware provided, however, that Client is hereby granted a non-exclusive and non-transferable license to use the Services deliverables solely for its internal business purposes, subject to the restrictions set out in this Agreement and in any applicable addenda or quotes. Any rights not expressly granted herein are reserved to Customware and its licensors. Services and Service deliverables provided by Customware to Client are not performed on a “work for hire” basis.
3. Service Activation. “Service Activation” refers to initial Services, such as setup and configuration of web site on Customware’s servers and creation of account. Customware will initiate Service Activation within a reasonable time, not to exceed fourteen (14) days, after its receipt of an executed On-Time Web Service Agreement approved by Customware and payment of the Initial Fee.
4. Duration and Termination
   1. Term. The term of this Agreement, unless earlier amended in accordance with Paragraph 3(b) of this Agreement, shall be one (1) term of payment option selected (the “Initial Term”). At the expiration of the Initial Term, this Agreement shall renew without action by either party based on the selected payment option, otherwise under the terms and conditions set forth in this Agreement.
   2. Termination
      1. Services may be terminated by the Client for any reason and return of all Units as set forth in Paragraph 1 (c, ii, d); provided, however, that in the event Service is terminated prior to the expiration of the Initial Term, Client agrees to pay Customware the fees for the Initial Term.
      2. Full payment is due no later than the first (1^st) day of each payment period, as set forth in Paragraph 1. Payments not received by the due date will result in the immediate termination of the Client’s On-Time Web service. To reconnect, Client shall pay Customware a reconnection fee of $25.00 and all outstanding fees. Termination shall not remove the Client’s obligations under this Agreement, including the obligation to pay all fees for the balance of the Initial Period, as applicable, and all outstanding, unpaid fees.
      3. Service may be terminated immediately upon violation of the Acceptable Use Policy as described in Paragraph 5.
5. Other Networks on the Internet
   1. Approval and Usage. The Client may wish to provide service to other networks connected or other users on the Internet. Use of or presence on other networks may require approval of the respective network authorities and will be subject to acceptable usage policies that such networks may establish. The Client will not hold Customware responsible for such approval or the violation of such policies.
   2. Performance. The Client understands that Customware, does not own or control other networks outside of the Service, nor is Customware responsible for performance (or non-performance) or content within such networks or within non-Customware operated interconnection points between Service and other networks. However, Customware will work with the Client to try to ensure that performance is maximized. This work is considered outside the scope of the Service and will be billed in addition to any Service Fees in this Agreement at Customware’s full hourly rate.
6. Acceptable Use Policy. The Client may not resell any portion of the Service to any other party. Such resale is grounds for terminating the Service. The Client is advised that acceptable use policies and etiquette of the Service and other networks apply and may, in fact, limit use. Customware may terminate the Client’s Service for violation of such policies or etiquette. Customware reserves the right to refuse or terminate Service at any time without prior notice for the use or posting of content we deem illegal, obscene or offensive. If Customware is informed by government authorities of inappropriate or illegal use of Customware facilities or other networks accessed through Customware, any government determinations will be binding on the Client, and Customware may terminate Client’s Service.
7. Client Location. Customware is not responsible to the Client for the cost or expense of administrative, technical, emergency and support personnel at the Client’s location necessary for activities relating to the Service. If Customware technicians or support personnel come to the Client’s location in regard to the Service, Client will be billed at Customware’s full hourly rate plus travel one way and expenses.
8. DISCLAIMER OF WARRANTIES. Client expressly acknowledges and agrees that use of the Services is at its own risk. The Services are provided “AS IS, WITH ALL FAULTS” and without warranty of any kind and CUSTOMWARE EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, AESTHETICS, MARKET APPEAL, SATISFACTORY QUALITY OR FITNESS FOR A PURPOSE. EXCEPT AS OTHERWISE SPECIFICALLY AGREED TO IN THIS AGREEMENT, CUSTOMWARE DOES NOT ADDITIONALLY WARRANT THAT THE INFORMATION OR FUNCTIONS CONTAINED ON THE WEBSITE WILL MEET CLIENT’S REQUIREMENTS OR FULFILL ANY OF CLIENT’S PARTICULAR PURPOSES OR NEEDS, THAT THE OPERATION OF CLIENT’S WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN CLIENT’S WEBSITE WILL BE CORRECTED. FURTHERMORE, CUSTOMWARE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE OR ANY DOCUMENTATION RELATED TO THIS AGREEMENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CUSTOMWARE OR A CUSTOMWARE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE WEBSITE PROVE DEFECTIVE, CLIENT (AND NOT CUSTOMWARE OR A CUSTOMWARE AUTHORIZED REPRESENTATIVE) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
9. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR PENALTIES OR LIQUIDATED DAMAGES, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSSES OR DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST OR DAMAGED INFORMATION OR DATA, FAILURE TO ACHIEVE COST SAVINGS, LOSS OF USE OF FACILITIES OR EQUIPMENT, OR THE FAILURE OR INCREASED EXPENSE OF OPERATIONS, REGARDLESS OF WHETHER ANY SUCH LOSSES OR DAMAGES ARE CHARACTERIZED AS ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR IF SUCH LOSSES OR DAMAGES ARE FORESEEABLE. If any remedy under this Agreement is deemed to have failed of its essential purpose or if Customware is found liable under this Agreement to Client or any of its successors or assigns for any other reason, then Customware’s maximum total liability hereunder, regardless of the form of action, shall not exceed the total fees paid by Client under this Agreement during the previous twelve (12) months. The provisions of this Section shall not limit (a) liability for breach of any confidentiality obligation, (b) liability for infringement of the other party’s Intellectual Property Rights, or (c) liability for payment of interest added by a court of law or an arbitration panel to a judgment entered in any action or proceeding under this Agreement. No action, suit or proceeding arising out of this Agreement may be brought more than two (2) years after the cause of action arises.
10. INDEMNITY. Client hereby agrees to indemnify, defend with counsel selected by Customware, protect and hold harmless Customware, its officers, directors, employees, agents, assigns and successors in interest (collectively, the “Indemnitees”) from and against all claims, demands, suits, causes of action, legal or administrative proceedings, actual damages (including but not limited to special and consequential damages), punitive damages, penalties, fines, charges, costs, liens, injuries, losses, debts, liabilities, and expenses of every kind whatsoever paid, incurred or suffered by, or asserted against any of the Indemnitees, directly or indirectly: (a) Attributable to any breach of this Agreement by Client; or (b) Concerning product liability or alleging breach of the warranties of merchantability and/or fitness for a particular purpose, and related in any way to any product sold or offered by Client. To the fullest extent permitted by law, the foregoing indemnity shall apply regardless of the fault, active or passive negligence, or breach of warranty or contract by any of the Indemnitees.
11. Confidentiality Provisions.
    1. Confidentiality of Agreement. The parties anticipate that they will exchange proprietary and confidential information during the term of this Agreement. All proprietary and confidential information acquired by a receiving party or its employees or agents under this Agreement or in contemplation hereof shall be and shall remain the disclosing party’s exclusive property. The receiving party shall use a reasonable degree of care, which in any event shall not be less than the same degree of care which the receiving party uses to protect its own proprietary and confidential information, to keep, and have its employees and agents keep, any and all such information confidential. The receiving party shall not copy, publish or disclose such information to others, or authorize its employees or agents or anyone else to copy, publish or disclose it to others, without the disclosing party’s written approval, and shall return such information to the disclosing party at its request. Nothing herein shall limit the receiving party’s use or dissemination of information not actually derived from the disclosing party or of information which has been or subsequently is made part of the public domain through means other than the receiving party’s breach of this Agreement.
    2. Confidentiality of Exchanged Information. The terms and conditions of this Agreement may not be disclosed or made available by either party hereto to third parties without the prior written consent of the other party; but nothing contained herein shall prevent either party from complying with applicable law, regulation or court order. Provided, however, that Customware may, without prior written consent, identify Client in reference listings as a client of Customware if such identification does not imply Client’s endorsement of the services of Customware.
12. Audit. During the term of the Agreement and for a period of one (1) year following Termination, upon Customware’s request, but not more
    than twice each year and upon reasonable notice, Client will permit Customware to perform an audit of Client’s records and computer
    systems that are relevant to Client’s use of any Service, software or equipment in order to confirm Client’s compliance with the Agreement.
    Customware will conduct any audit during Client’s normal business hours. Client will immediately pay Customware the amount of any
    additional fees that are found to be payable under the Agreement as a result of any audit. If an audit reveals that Client has underpaid
    any fees by more than five percent (5%) of the amount properly payable, then Client will reimburse Customware for Customware’s entire cost of conducting the audit.
13. No Assignment. The Client shall not sell, transfer, or assign this Agreement without the prior written consent of Customware. Any act in derogation of the foregoing shall be null and void, and the Client will remain obligated under this Agreement.
14. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
15. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
16. ATTORNEY’S FEES AND EXPENSES. In the event a party to this Agreement initiates legal action to enforce or interpret this Agreement, the prevailing party shall be entitled to reimbursement from the non-prevailing party or parties for the prevailing party’s reasonable attorney’s fees and costs incurred to enforce or interpret this Agreement.
17. Choice of Law and Waiver of Trial by Jury. This Agreement will be governed by and construed in accordance with the laws of the State of Kentucky, excluding its conflict of laws principles, and parties shall consent to the personal jurisdiction of and venue in the circuit courts located in and serving Franklin County, Kentucky. Each party waives a jury trial in any matter arising out of or relating to this Agreement.
18. Binding Effect. The Agreement shall benefit and be binding upon the parties to this Agreement and their respective successors and assigns.
19. Entire Agreement. This Agreement represents the complete Agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties.
20. Acknowledgement and Representation. Both parties acknowledge that they have read and understand this Agreement and agree to be bound by its items. The Client represents and warrants that they have full corporate power and authority to execute and deliver this Agreement and to perform their obligations thereunder, and that the person accepting this agreement is duly authorized to enter into this Agreement on behalf of the party.