END USER LICENSE AGREEMENT
WORKFORCE MANAGEMENT SOLUTIONS

This End User Agreement (this “End User Agreement” or this “Agreement”) is made as of the Agreement Effective Date listed above (“Effective Date”), by and between Cirrus Payroll (“Company”), an Oklahoma corporation located at 1401 S Cheyenne Ave, Tulsa, OK 74119, and the entity named in the sales agreement (“End User”).  The Authorized Individual listed in the sales agreement represents and warrants that he or she is authorized to sign on behalf of End User. In consideration of the premises, promises, terms, covenants, agreements and provisions set forth herein, the parties agree as follows:

1. SERVICES.

(a) Company resells a web-based service, known as “TimeWorksPlus” or “TimeSimplicity” (the “Services”) that assists businesses in scheduling labor, managing time of labor, and providing information to assist in payroll computation tasks. End User’s relationship with Company shall be governed by this Agreement and its Exhibits.

2. FEES AND PAYMENT.

(a) The service fees and billing schedule are set forth in Schedule 1 delivered with this Agreement.  Any adjustments are set forth in an addendum to this agreement.  Company will bill End User on a monthly basis for all fees. Invoices from Company for partial periods shall be prorated. Invoices are due on the 15th of each month for charges incurred the previous month and will be auto-billed to the payment method on file on the due date.  If Company is unable to successfully charge End User’s payment method on file on the due date, reasonable efforts will be made to secure new or updated payment information from the End User. If balances remain unpaid over 10 days from the date the first charge was attempted, End User’s account will be frozen until payment is successfully made. Company may adjust its fees, prices and/or discounts at any time, effective thirty (30) days after written notice is delivered to End User.

(b) Regarding ACH payments, End User represents that it has authority to bind the organization that owns the bank account provided, and to authorize all transactions to the bank account that are initiated by Company. End User understands that this authorization will remain in effect until End User cancels it in writing, and agrees to notify Company in writing of any changes in account information or termination of this authorization at least 10 days prior to the next billing date. If the above noted periodic payment date falls on a weekend or holiday, End User understands that the payment may be executed on the previous business day. In the case of an ACH Transaction being rejected for Non-Sufficient Funds (NSF), End User understands that Company may at its discretion attempt to process the charge again within 30 days, and agrees to an additional $25 charge for each attempt to re-process the returned NSF. End User acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. End User agrees not to dispute this recurring billing with its bank so long as the transactions correspond to the terms indicated in this authorization form.

(c) Regarding credit card payments, End User authorizes Cirrus Payroll to charge the credit card indicated in the authorization form. End User certifies that it is an authorized user of credit card and that End User will not dispute the payment with the credit card company, so long as the transaction corresponds to the terms indicated in this form.

3. TERM AND TERMINATION

(a) This End User Agreement shall commence on the Effective Date and shall continue thereafter until terminated by either party in accordance with this Section. Either party may terminate this End User Agreement for any reason or no reason, effective sixty (60) days after giving written notice of termination to the other party.

(b) If End User is in default as defined by this End User Agreement, Company may terminate the End User Agreement with thirty (30) days’ notice to End User providing an opportunity to cure the default within that timeframe.  Company may, in addition to or instead of termination, suspend services to End User and End User’s End Users until the default is cured.

(c) In the event of any termination or expiration of this End User Agreement for any reason, Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, hereof shall survive and continue in effect despite such termination or expiration, and all fees and other charges related to the Company Service provided up to the date of such termination shall be due and payable as provided in Section 2.

4. INDEPENDENT RELATIONSHIP

(a) End User and Company are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this End User Agreement or its Exhibits to create an agency, employment, partnership, or joint venture between the parties. Neither party shall have the authority to incur any contractual, financial, or other obligation on behalf of or in the name of the other party except with the party’s express prior written authorization.

5. DATA VERIFICATION

(a) Company shall use its commercially reasonable efforts to accurately collect timekeeping data supplied by the End User. End User agrees that it is responsible for verifying data provided to the Company.

(b) Prior to preparing payroll End User shall confirm that its data matches the information sent to the Company. End User shall inform Company of any discrepancies and End User and Company shall jointly cooperate in the investigation and correction of such discrepancies.
(c) End User acknowledges that in virtually all cases, employees of Company are unfamiliar with the typical business operations of any particular End User, and as a result, employees of Company are not qualified to independently assess the validity of data collected through Company’s services.

6. DATA OWNERSHIP AND DATA TRANSFER.

(a) For all purposes of this Agreement, an End User producing timekeeping data shall be deemed the author and owner of all such data.  In any case, Company will make all current and historical timekeeping data of End User available for download in a computer-generated file available to End User during the term of this Agreement and for 30 days thereafter.

(b) End User may transfer data to another Service Provider by executing transfer authorization forms provided by Company.  Company may charge the transferring End User transfer fees for both new account identification and clock activation and reprogramming. Company may also charge for research and data manipulation services relating to any transfer of employee information, site configuration, or history data. End User agrees to keep adequate records for audit purposes, and that End User will retain stewardship of all timekeeping data (except for a pending payroll period as listed above) unless released by End User on the proper Company transfer authorization form.

(c) The Company Service and all copyrights, trademarks, trade secrets, source code and other intellectual property and proprietary rights throughout the world (“Intellectual Property Rights”) therein and thereto are and shall remain the exclusive property of the Company.  The Company Service are comprised of and embody substantial trade secrets, copyrights, trademarks and trade names, all of which are solely the Company’s.  All rights in and to the Company Service not expressly granted to End User or Company in this Agreement are reserved by the Company.  The Company represents and warrants this it has the right to enter into this Agreement and that the performance by Company of Company’s obligations hereunder does not conflict with or violate any requirement of applicable laws or regulations and does not conflict with, or constitute a default under, any contractual obligation of such party.

7. ADMINISTRATION; TELEPHONE SUPPORT.

(a) In accordance with Section 1, all of Company’s administrative work involved in the normal operation of End User’s account is included in the standard monthly fees.

(b) Specific types of work are typically chargeable at an hourly or other rate.

  • Support requests made through Company’s premium Professional Services Department.
  • Writing of scripts, rules, custom reports, and/or custom exports for the benefit of End Users.
  • Requests to import, move, or otherwise manipulate data “from the back end” using database administrative tools (e.g. SQL)
  • Requests to restore deleted data from database backups maintained by Company.
  • Other services as determined by Company, upon informing End User or the party making the request, verbally or in writing, that such a request may incur a fee.

8. COMMUNICATION.

Except as to matters as to which this Agreement requires written notice, each party agrees to accept communication from the other party via email, the support ticket system, fax, phone, or postal service. End Users will be directed by Company to communicate with SwipeClock on all configuration and support issues.  End Users will not be charged additional fees beyond the agreed-upon pricing in Schedule 1 for any communication or support services provided directly by SwipeClock.

9. HARDWARE SALES AND RETURNS.

  • End User may purchase timekeeping hardware from Company:
    • new clock hardware programmed by Company is sold with a warranty as set forth in a separate Hardware Policy;
    • all other hardware and merchandise by the Company is sold “AS IS” without any warranty of any kind (involving, without limitation, no warranty of fitness for particular purpose or merchantability).
  • ALL HARDWARE PURCHASES REQUIRE PREPAYMENT UNLESS OTHER ARRANGEMENTS HAVE BEEN MADE IN ADVANCE.
  • End User must follow the Company’s Returned Merchandise Authorization (RMA) policies (as set forth on the Site or otherwise delivered in writing, subject to change at any time) in order to receive credit for any hardware returned to Company. Further, all hardware returns and hardware warranty claims must be returned to Company in suitable packaging at the sender’s cost, and sender will bear all risk of damage in transit. The sender must write the RMA number clearly on the returned packaging. Any item returned without an RMA number will not be processed; and Company will not be responsible for any further tracking or credits assessed with the item. End User shall be responsible for any expedited shipping costs.

10. WARRANTIES.

(a) EXCEPT FOR THOSE WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY).

(b) ALL SERVICES PROVIDED BY COMPANY TO END USER, AND BY COMPANY TO END USERS ARE AS IS.  THERE IS NO GUARANTEE OR WARRANTY OF ANY KIND THAT COMPANY SERVICE WILL MEET THE NEEDS OF END USER.

11. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER PARTY ASSUMES LIABILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS, LOST DATA OR FAILURE OF SECURITY RESULTING IN ANY WAY FROM THE END USER USE OF THE COMPANY SERVICE OR THIS AGREEMENT.  NEITHER PARTY SHALL BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT FORSEEABLE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN CONNECTION WITH THIS AGREEMENT.

12. CONFIDENTIALITY.

The parties acknowledge that in the course of performing their respective obligations pursuant to this Agreement each will have access to and contact with Proprietary Information (as defined below) of the other.  Each party agrees that it will not, during the term or at any time thereafter, disclose to others, or use for its benefit or the benefit of others, any Proprietary Information of the other party unless this Agreement expressly permits such use or disclosure or such disclosure is required by law. For purposes of this Agreement, “Proprietary Information” means any information relating to a party or a party’s affiliate, including all Intellectual Property Rights, customer lists and customer data, provided that Proprietary Information will not include information that:  (a) is or becomes generally available to the public other than as a result of a wrongful disclosure or (b) was or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party without a wrongful act; or (c) has been independently developed by the recipient or its affiliates without the use of the disclosing parties Proprietary Information.

13. SOFTWARE LICENSE AGREEMENT

 (a) Some products offered for sale by Company, including but not limited to time clocks, voice clocks, biometric devices, downloadable software, packaged software, and other products, may contain intellectual property of SwipeClock such as source code, object code, or program documentation (“Company Software”).  In such case, except where expressly superseded by another license agreement the following terms shall apply.

(b) Company grants to End User and to active employees using the Company Service, a non-exclusive and non-transferable license to use Company Software only on equipment provided or approved by Company, and only in conjunction with the use of Company’s services.

(c) Except as expressly authorized above, End User shall not: copy, in whole or in part, software or documentation; modify the software; reverse compile or reverse assemble all or any portion of the software; or rent, lease, distribute, sell, or create derivative works of the software.

(d) End User agrees that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Company.  End User agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Company.  End User agrees to implement reasonable security measures to protect such trade secrets and copyrighted material.  Title to software and documentation shall remain solely with Company.

14. LICENSE AGREEMENT FOR CUSTOMIZATION WORK

(a) As part of the suite of services Company offers to End User, Company may from time to time create programming, scripts, or rules (“Customization Code”) designed to accommodate feature requests, programming needs, and/or customizations on behalf of specific End Users.  For example, an End User may need a custom script to accommodate an unusual shift schedule or non-standard overtime rules.

(b) Customization Code may include, but is not limited to, all of the following: scripts, rules, classes, source code, object code, object definitions, schemas, report templates, and file formats, all of which serve a narrow purpose for a single End User or a small number of End Users sharing a common need.  However, the source code of the base application software constituting the core Company services available to everyone and/or not created to customize the system for specific End User(s) is not Customization Code.

(c) End User and Company expressly acknowledge and agree that programming for payroll-related tasks often makes use of common “building blocks”, or pieces of Customization Code which may be useful for solving similar problems for multiple End Users.  Accordingly, except for portions of such programming that consist solely of confidential raw data belonging to End User or one of its End Users (e.g. a list of confidential pay rates formatted in the syntax of a scripting language), neither End User nor Company shall assert any claim to ownership of intellectual property intended to prohibit or encumber the re-use of any Customization Code for the benefit of any other End User to which it may be deemed useful.

(d) Accordingly, End User may engage or request Company to create Customization Code to meet needs of End User and/or its End Users.  In doing so, to the extent any intellectual property laws may apply to such work, both End User and Company freely grant each other a license to use, copy, compile, adapt, modify, sell, resell, transmit, publish, and/or create derivative works of the portion of any Customization Code that does not constitute raw confidential data, and the ideas and methodology embodied therein, without any attribution or compensation whatsoever to one another at any time in the future, and regardless of whether Company charged a fee to End User for the creation of such code.

(e) Miscellaneous – Projects of work proposed by End User and accepted by Company to be performed that would increase the scope of this agreement would be added as an amendment in to this agreement in the form of a Statement of Work(SOW) and signed by both parties.

15. END USER AGREEMENTS

Except where an exception has been identified and agreed upon in writing in the form of an Amendment to this End User Agreement, End User agrees not to send Social Security Numbers, or other privileged data to the timekeeping website for any reason, notwithstanding the ability for the system to accept, or to be configured to accept, any such data.  Further, End Users shall agree to abstain from using such data for convenience (e.g. using the social security number as a login or PIN on the time clock)

16. INDEMNIFICATION

(a) End User will indemnify, hold harmless, and, at Company’s option, defend, Company, its agents, and affiliates from and against any and all claims, demands and actions, and any liabilities, damages and expenses (including court costs and attorney’s fees) (collectively “Liabilities”) to the extent such Liabilities result from or are caused by End User’s breach of this Agreement, except to the extent such Liabilities result from Company’s gross negligence or intentional misconduct.

(b) Company will indemnify, hold harmless, and, at End User’s option, defend End User from and against any and all claims, demands and actions, and any Liabilities resulting there from, caused by Company’s gross negligence, intentional misconduct or breach of this Agreement.

17. MISCELLANEOUS

  • This End User Agreement (including all Exhibits and Amendments hereto and policies and procedures referenced herein) contains the entire agreement among the parties concerning its subject matter, and replaces all earlier agreements among them, whether written or oral, concerning its subject matter. In the event of any conflict or inconsistency between the terms of this End User Agreement and any other document provided to End User, the terms of this End User Agreement shall govern.

(b) This End User Agreement (including all Exhibits and/or Amendments hereto and policies and procedures referenced herein) will be governed by and construed under the laws of the State of Delaware without regard to conflicts-of-laws principles that would require the application of any other law.

(c) Unless otherwise indicated in this Agreement, all notices, consents, waivers and other communications required or permitted under this End User Agreement (including all Exhibits and Amendments hereto) shall be in writing and shall be deemed given in writing to a party when (i) delivered to by a nationally recognized overnight courier service, costs prepaid, with a copy sent by e-mail; or (ii) received by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses, including a copy sent by e-mail:

 

If to Company:         _________________________________

With a copy to          __________________________________

If to End User:         __________________________________

 

With a copy to:         __________________________________

 

Attn: General Counsel    _______________________________

 

(d) Captions in this End User Agreement are for convenience only and shall be deemed irrelevant in construing the provisions of this End User Agreement.

(e) If any provision of this End User Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this End User Agreement will remain in full force and effect. Any provision of this End User Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

(f) No provision hereunder shall be deemed waived unless such waiver shall be in writing signed by the parties. No waiver by any party hereto of any of its rights or remedies on anyone occasion shall operate as a waiver of any other of its rights or remedies or any of its rights or remedies on a future occasion. The rights and remedies of the parties to this End User Agreement are cumulative of themselves and of every other right or remedy.

(g) Neither party may assign this Agreement in whole or in part without the prior written consent of the other party, except that either party (the “Assigning Party”) may assign this Agreement without the written consent of the other party (the “Non-Assigning Party”) to an affiliate or to a corporation or other business entity succeeding to all or substantially all the assets and business of the Assigning Party by merger or purchase. Any attempted assignment, delegation or transfer by an Assigning Party in violation hereof shall be null and void.

(h) This End User Agreement may be signed in one or more counterparts, each of which shall be deemed to be an original copy of this End User Agreement and all of which shall be deemed to constitute one and the same End User Agreement.

(i) Notwithstanding anything contained herein to the contrary, neither party shall be liable for any delay or failure in performance due to any reason or circumstances beyond the affected party’s reasonable control, including acts of God or public authorities, war and war measures (whether or not a formal declaration of war is in effect), civil unrest, fire, epidemics, floods, earthquakes, or delays in transportation, delivery or supply, failures of third-party service providers or other reasons beyond their control.  The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay.

(j)  For purposes of this Agreement, “affiliates” means any persons or entities that control, are under the control of, or are under common control with the specified entity.  “Control” means the direct or indirect ownership, either legal or beneficial, of at least fifty percent of any class of voting or equity interests of the specified entity.