End user agreement for Online Time
Your use of this Application is subject to the following Terms and Conditions of Usage ("TCU"). In addition, you will be subject to any guidelines, policies, rules or additional terms applicable to these Applications which Gateway Software Productions may communicate to you or post from time to time. These guidelines, policies, rules or additional terms are considered included in this TCU.
1. Description of Applications
Gateway Software Productions provides this Application primarily as a time and expenses tracking and allocation system. The features and functions of this Application are described in the online documentation. Gateway Software Productions may change such features and functions, as well as the terms and conditions of the TCU at any time and from time to time, with or without notice. Notice of significant changes will be posted on the website of the Application, which you must review periodically. You agree that Gateway Software Productions shall not be liable to you or any third party for any modification of the Applications.
2. Application Requirements
In order to use the Applications, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
In addition, you must: (a) provide true, accurate, current and complete information about yourself as prompted by the Application's registration form and payment authorization form and (b) maintain and promptly update such registration and payment authorization information to keep it true, accurate, current and complete.
3. Payment of Fees
You agree to pay all subscription, service and use fees, if any, that Gateway Software Productions charges you for access to the Application. Such fees will be posted on the Application's website and may be changed by Gateway Software Productions at any time and from time to time by providing you with 30 days prior notice. You agree to pay all costs (including attorneys' fees), if any, incurred by Gateway Software Productions in collecting overdue fees from you, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1.5% per month or the maximum allowed under applicable law. You also agree to pay all foreign, federal, state and local taxes applicable to your access, use or receipt of the Application. Gateway Software Productions may, at its option, include such taxes in the fees charged to you, in which event you shall pay such taxes to Gateway Software Productions.
Failure to pay fees will result in the suspension of access to the Application, and your data contained within it.
You may designate up to a designated number of registered users under your account, each with his/her user name and password. You agree immediately to notify Gateway Software Productions if you become aware of any loss or theft or unauthorized use of any of your user name(s), password(s), and/or other personal or company identification numbers that may be assigned to you by Gateway Software Productions, billing data, registration information or payment authorization information.
5. Passwords and Security
Gateway Software Productions agrees to exercise reasonable care to prevent any unauthorized person or entity from gaining access to your registration information, payment authorization information, billing data, user name(s), password(s) and any other personal or company identification numbers that may be assigned to you by Gateway Software Productions. The security of your information and data may be maintained through the use of data encryption, data security protocols, passwords and other methods which Gateway Software Productions may employ, or which Gateway Software Productions may suggest or require that you employ from time to time. You acknowledge and agree that any and all damages to you or any third party from any breach of the above security system shall be bounded by the total amount of payments made by you to Gateway Software Productions as part of using the Application.
You acknowledge and agree that Gateway Software Productions shall not be liable for any damages incurred by you or any third party in connection with any unauthorized access to or disclosure of such information or data resulting from your actions or from your failure to act, or the actions or failure to act of a third party, or the failure of electronic or other security measures.
Gateway Software Productions will not disclose any data about you or your clients that you enter into an Application unless compelled to do so by law. If Gateway Software Productions is ordered to make such disclosure, Gateway Software Productions will use its reasonable efforts both to notify you and to allow you the opportunity to oppose such disclosure. Gateway Software Productions reserves the right to disclose information about you or your account to appropriate authorities if there is a reasonable basis to believe that there is illegal activity, breach by you of the TCU or in the event of an emergency.
7. Storage of Your Data
Gateway Software Productions agrees to exercise reasonable care to produce backup copies of the data you enter as part of using your Application. Such backups will include redundant hard drives, tape drives, CD archiving, off-site storage, and such techniques as warranted under the best practices guidelines of our security professionals. At any time of your choosing, you may request a copy of your data to be sent to you electronically as an export from the Application's database in an XML format. A reasonable fee will be charged for this service.
You acknowledge and agree that any and all damages to you or any third party from any breach of the above backup system shall be bounded by the total amount of payments made by you to Gateway Software Productions as part of using the Application.
8. Our Proprietary Rights
You acknowledge and agree that the Application and any necessary software used in connection with the Application contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to modify, rent, lease, loan, sell, distribute, copy, sell, resell or exploit for any commercial purposes, any portion of the Application, use of the Application, or access to the Application.
Gateway Software Productions grants you a non-transferable, non-exclusive and terminable right and license to use the object code of its Application; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Application or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Application. You agree not to modify the Application in any manner or form beyond the features provided by Gateway Software Productions, or to use modified versions of the Application, including without limitation for the purpose of obtaining unauthorized access to the Application. You agree not to access the Application by any means other than through the interface that is provided by Gateway Software Productions for use in accessing the Application.
"Gateway Software Productions" logos and other Gateway Software Productions trademarks, service marks, logos and product and service names that may be used in connection with the Application are trademarks of Gateway Software Productions. You agree not to display or use the Gateway Software Productions marks in any manner without Gateway Software Productions's express prior written permission.
9. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GATEWAY SOFTWARE PRODUCTIONS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON‑INFRINGEMENT. YOU FURTHER EXPRESSLY AGREE THAT NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GATEWAY SOFTWARE PRODUCTIONS OR THROUGH OR FROM THE APPLICATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TCU AND THAT NO ACCOUNTING, FINANCIAL OR LEGAL ADVICE OR COUNSEL IS GIVEN OR SHALL BE DEEMED TO HAVE BEEN GIVEN BY THE SERVICE.
10. Interruption of Service
From time to time, the Application may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocation, repairs and other similar activities necessary during the operation and upgrade of the Application. Gateway Software Productions will post notice of periodic interruptions of the Application or "maintenance windows" from time to time to perform such activities and no reduction of payments will be made in the case of such temporary interruption of Application or "maintenance windows" previously posted.
In the event of a temporary interruption in the Application that is outside of such "maintenance windows" and is caused by a failure in Gateway Software Productions's software or servers or network connections, Gateway Software Productions shall issue to you credits, to be used against future service fees, in an amount equal to the pro rata portion of any fees that may have been paid by you for the portion of the Application not furnished to you as a result of such interruption in Application, provided, however, that in no event shall Gateway Software Productions be liable for interruption or delays in transmission or errors or defects in transmission or failure to transmit caused by causes beyond its control, including without limitation acts of God or failure of any Internet backbone or Internet service provider.
IN NO EVENT WILL GATEWAY SOFTWARE PRODUCTIONS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE ITEM) EVEN IF GATEWAY SOFTWARE PRODUCTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE LIABILITY OF GATEWAY SOFTWARE PRODUCTIONS ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE APPLICATION WILL NOT EXCEED THE AMOUNT YOU PAID FOR THE APPLICATION.
Gateway Software Productions shall not be liable for any loss resulting from a cause over which Gateway Software Productions does not have any direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to your computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or your telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. Gateway Software Productions is not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Application. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold Gateway Software Productions harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from your violation of local, state or federal laws or regulations, or any third party's rights, including but not limited to infringement of any copyright, violation of proprietary right and invasion of any privacy rights. This obligation will survive the termination of your use of the Application.
13. Discontinuation of Service
You may at your sole discretion terminate your use of the Application and your obligation to pay for it upon 30 days' prior notice. You agree that, upon 30 days' prior notice, Gateway Software Productions may, in its sole discretion, terminate your user name(s), password(s), account(s) (or any part thereof) or use of the Application, for any reason, including without limitation for lack of use or if Gateway Software Productions believes that you have violated or acted inconsistently with the letter or spirit or the TCU. Gateway Software Productions may also, upon 30 days' prior notice, in its sole discretion and at any time, discontinue providing the Application, or any part thereof.
In the event that your use of your Application with Gateway Software Productions is terminated, Gateway Software Productions will send a copy of your data to you electronically as an export from the Application's database in an XML format. Further, you agree that Gateway Software Productions shall not be liable to you or any third party for any termination of your access to the Application; provided, however, that if the termination is unrelated to your acts or omissions, Gateway Software Productions will refund to you an amount equal to the pro rata portion of any fee that may have been paid by you for the portion of the Application not furnished to you as of the date of such termination.
14. External Links
The Application may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Gateway Software Productions has no control over such sites and resources, you acknowledge and agree that Gateway Software Productions is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Gateway Software Productions shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
15. Modifications and Notices
The TCU may be modified by Gateway Software Productions upon notice to you. If Gateway Software Productions sends you notice, via email, posting on the Application or otherwise, of a modification, you confirm your acceptance of the modification by not closing and/or by continuing to use the Application.
16. Miscellaneous Provisions
The TCU constitutes the entire agreement between you and Gateway Software Productions and govern your use of the Application, superceding any prior agreements, verbal or written, between you and Gateway Software Productions with respect to the subject matter contained in the TCU. The TCU may only be modified or amended as set forth above in Section 14 or otherwise in a writing signed by Gateway Software Productions and you.
The TCU and the relationship between you and Gateway Software Productions shall be governed by the laws of the Canada, Province of Ontario, County of Simcoe without regard to its conflict of law provisions.
The failure of Gateway Software Productions to exercise or enforce any right or provision of the TCU shall not constitute a waiver of such right or provision. If any provision of the TCU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TCU shall remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Application or the TCU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The Section titles in the TCU are for convenience only and have no legal or contractual effect.
No person or entity that is not a party to this TCU shall derive any rights whatsoever hereunder as a third party beneficiary.