TIMEFLUENCE TERMS OF SERVICE

This Terms of Service ("Agreement") governs your use of and access to the Services provided by Timefluence, LLC d/b/a Timefluence ("Company", "we", "us", or "Timefluence").
This Agreement is effective as of the date you submit your registration on Timefluence.com (the "Effective Date"). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. You represent and warrant that, if an individual, you are at least 18 years old and otherwise legally competent in all respects to be bound by this Agreement. We may modify the key terms of this Agreement upon 14 days prior written notice to you via e-mail.

1. SERVICES

1.1 SERVICES.

During the Subscription Term, and subject to all terms and conditions of this Agreement, we will use commercially reasonable efforts to provide the Services to you consistent with your Service Plan. We may provide the Services using third party vendors or service providers. You agree to pay Company the fees, in the amounts and at the times specified in your selected Service Plan.

1.2 CHANGES TO THE SERVICE.

We may also make commercially reasonable modifications to the Service from time to time without prior notice. We may make changes to any Service Plan at any time. After 30 days notice to you of a change to your then applicable Service Plan, if you continue to use the Services beyond the expiration of your then current Subscription Term or renewal term, such use will be governed by the modified Service Plan.

1.3 LIMITATIONS.

We will not be responsible or liable for any failure in the Services resulting from or attributable to (a) your Systems, (b) network, telecommunications or other service or equipment, (c) your, or third party's’ products, services, negligence, acts or omissions, (d) any force majeure or cause beyond our reasonable control, (e) scheduled maintenance or (f) unauthorized access or breach by third parties. You are responsible for maintaining the confidentiality of your account access password, and for all activities that occur under your account.

1.4 SYSTEMS.

You should obtain and operate all Systems needed to use the Services, and provide all corresponding backup, recovery and maintenance services. You will ensure that all Systems are compatible with the Services.

2. PROPRIETARY RIGHTS

2.1 CUSTOMER CONTENT.

As between the parties, you shall own all Customer Content. You hereby grant us a nonexclusive and royalty-free right and license to use, copy, perform, display, and distribute said Customer Content and to prepare derivative works of Customer Content for the purpose of providing the Services, both to you and End-Users. You agree to indemnify and hold us harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys' fees) arising out of any use or disclosure of Customer Content and your use of the Services. You understand that you are solely responsible for all Customer Content posted on, transmitted through, or linked from the Service, including any Customer Content created or provided by End-Users. You acknowledge that we do not pre-screen or approve Customer Content, but the Company shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Customer Content that is available via the Service for violating the letter or spirit of this Agreement or for any other reason. Should you provide feed-back, reviews or recommendations for changes or upgrades (“Comments”), you grant us the right, royalty-free, to use (or to choose not to use at our sole discretion) said Comments, and if applicable to incorporate apply your Comments into our Services.

By submitting information, written matters, images and/or photos for use through your subscription with the Company, you warrant that such submission is not offensive, defamatory or illegal, and you indemnify us for any breach of that warranty. You further warrant that you are the copyright holder of such submissions, or you have permission of the copyright holder to publish any copyrighted content in such submissions, and you indemnify us for any breach of that warranty. You are solely responsible for obtaining any and all required, written permissions for any material subject to copyright protections if you are not the copyright holder.

2.2 NO IMPLIED LICENSE.

Except for the limited rights and licenses expressly granted hereunder, no other license is granted to you, no other use is permitted and we (and our licensors) shall retain all right, title and interest in and to the Service and all updates and modifications to the terms (including all intellectual property and proprietary rights embodied in it). You agree not take any action inconsistent with such rights.

3. SERVICE PLANS

3.1 SERVICE PLAN UPGRADES

Your Service Plan includes certain restrictions on your use of the Services. In order to use the Services in excess of any such limitations, you must upgrade your Service Plan accordingly for your usage level.

3.2 TRIAL PERIODS AND FREE ACCOUNTS

If we offer one and you signed up for a "Free Trial", you will be permitted to access and use the Services until the end of your Trial Period. Upon the termination of such trial period, you must select a Service Plan other than a "Free Trial" and begin paying Subscription Charges as set forth in this Agreement. Trial periods shall be as set forth in your Service Plan, as may be otherwise agreed to in writing by you and us. You understand that any Trial Period or otherwise free account that has been inactive (the user has not logged into the Timefluence administration tool or received any submissions on their forms) for six or more months is subject to termination and deletion of all Customer Content. Timefluence msy attempt to notify you of such pending termination by sending a message to the email address stored for your account, but is under no obligation to do so.

4. BILLING

4.1 CREDIT CARD INFORMATION.

In order to set up an account with us, you must provide Company with accurate and complete billing information including legal name, address, telephone number.
If you are paying via credit card, PayPal, ACH debit or other electronic means of payment, you must provide valid information for such payment method (credit card number, ACH routing and account number...etc). By submitting such information, you give us permission to charge all Subscription Charges and any other fees incurred for using the Services via such payment method. We reserve the right to terminate this Agreement and your access to and use of the Services in accordance with Section 7 below if you do not provide a valid payment method information or the payment of fees hereunder, or if any Subscription Charges or other charges are not otherwise timely paid.

4.2 PAYMENT TERMS.

The Subscription Charges are billed in advance upon commencement of your Subscription Term, and thereafter monthly, except as otherwise agreed to or as set forth in a Service Plan or an Addendum, and are non-refundable except as otherwise stated in this Agreement. Upon any change in your Service Plan, the recurring billing date for your Subscription Charge will reset to the day the change is made. If you upgrade your Service Plan, you will be charged the corresponding Subscription Charge immediately and receive a pro-rata credit for the unused portion of the Subscription Charge for your prior Service Plan. If you downgrade your Service Plan, you will be charged the Subscription Charge for the lower Service Plan immediately. If and to the extent a credit balance exists on your account following a change to your Service Plan, we will charge your payment method on file once such credit has been exhausted. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds. For any upgrades or downgrade in Service Plan level, your credit card will automatically be charged the new rate beginning with the next billing cycle. Any add-on features or Services not provided in your Service Plan will be billed in accordance with specific terms provided at the time the add-on features or Service is requested by you.

4.3 TAXES.

All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon our net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.

4.4 REVISING SUBSCRIPTION CHARGES

We may revise Subscription Charges for the Services by providing you written notice (which may be by email) at least thirty days prior to the start of the following renewal term of your Subscription Term.

4.5 AUTO-RENEWAL OF SUBSCRIPTION CHARGES / CANCELLATION PROCEDURE

Your Subscription Charge will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page. You authorize us to continue your Subscription Charges until cancelled and, on a recurring monthly basis (or whatever recurring basis has been otherwise agreed to in writing), to charge the payment method you provided the then-current Subscription Charge if you do not cancel / terminate in accordance with this Agreement.

5. DISCLAIMERS

5.1 DISCLAIMER OF WARRANTIES.

THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

5.2 BACKUPS

FOR ITS OWN OPERATIONAL EFFICIENCIES AND PURPOSES, TIMEFLUENCE FROM TIME TO TIME BACKS UP DATA ON ITS SERVERS, BUT IS UNDER NO OBLIGATION OR DUTY TO YOU TO DO SO UNDER THESE TERMS. IT IS YOUR SOLE DUTY AND RESPONSIBILITY TO BACKUP YOUR FILES AND DATA, AND UNDER NO CIRCUMSTANCE WILL TIMEFLUENCE BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF YOUR FILES AND/OR DATA ON ANY TIMEFLUENCE SERVER

6. LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO US HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD TIMEFLUENCE, ITS AFFILIATES AND ITS SPONSORS, PARTNERS, OTHER CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES OF EACH HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO YOUR BREACH OF THIS AGREEMENT OR USE BY YOU OR ANY THIRD PARTY OF THE SERVICES, EXCEPT TO THE EXTENT THE FOREGOING DIRECTLY RESULT FROM TIMEFLUENCE'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TIMEFLUENCE RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

7. TERM AND TERMINATION

7.1 TERM.

This Agreement shall commence on the Effective Date and shall continue in effect for the initial term specified in the Service Plan. If no initial term is specified in the Service Plan, the initial term shall be 1 month. Unless terminated earlier as stated in this Agreement, the Agreement will be extended automatically for additional terms of equal length to the initial term, or if no initial term is specified, 1 month, at the end of the initial term and each renewal term (collectively, the "Subscription Term").

7.2 TERMINATION.

Except as otherwise stated in this Agreement, you are solely responsible for properly terminating your account. An email or phone request to cancel your account shall not result in termination. You can terminate this Agreement and your account at any time inside of your account dashboard. Any termination of your account will result in the deactivation or deletion of your account or your access to the account. Please be aware that Timefluence may for a time retain residual information and/or archival copies in its database. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 14 days (10 days in the case of nonpayment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

7.3 EFFECTS OF TERMINATION.

Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the Effective Date of termination (including without limitation, all payment obligations) shall survive, (b) we may, but shall not be obligated to, delete Customer Content and (c) the provisions of Sections 2 (Proprietary Rights), 4 (Payments), 5 (Disclaimers), 6 (Limitation of Liability), 8 (General Provisions) and this Section 7.3 shall survive. Following any termination or expiration of this Agreement, we reserve the right to delete your account information and all Customer Content immediately.

8. GENERAL PROVISIONS

8.1 ENTIRE AGREEMENT.

This Agreement (together with the applicable Service Plan(s), and Addendum, or any agreement incorporated in this Agreement by express reference) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Service Plan, the terms and conditions in the Service Plan will prevail and be controlling. No waiver, consent or, except as expressly provided in this Agreement, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, you shall cause such registration to be made and shall bear any expense of tax payable in respect of that requirement. If you discover anyone on the Timefluence system violating this Agreement or notice anything suspicious from the Timefluence network, you agree to report the violation or suspicious activity by opening a ticket with Timefluence for investigation.

8.2 GOVERNING LAW / BINDING ARBITRATION

This Agreement shall be treated as though executed and performed in the state of Colorado, and shall be governed by and construed in accordance with the laws of Colorado, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. Any dispute relating in any way to your use of the Services shall be submitted to confidential arbitration in El Paso County, Colorado, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Colorado. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Colorado. Arbitration under this Agreement shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. We operate the Service from our offices in the State of Colorado. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

8.3 REMEDIES.

Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 2, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

8.4 NOTICES.

Any notice or communication hereunder shall be in writing and either personally delivered or sent via Timefluence confirmed/responded email, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Service Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt. Notices to Timefluence shall be sent as follows: agreementnotices@timefluence.com.

8.5 ASSIGNMENT.

This Agreement and the rights and obligations hereunder may be assigned upon 10 days prior written notice to the non-assigning party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties of this Agreement.

8.6 INDEPENDENT CONTRACTORS.

The parties shall be independent contractors under this Agreement, and nothing in this Agreement will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

8.7 PROHIBITED PERSONS (COUNTRIES, ENTITIES, AND INDIVIDUALS)

8.7.1 SANCTIONED COUNTRIES

The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that, with respect to all or certain commercial activities that would otherwise occur between i) the United States, its citizens or residents on the one hand and ii) the governments, citizens, or residents of certain other countries ("Sanctioned Countries") on the other hand, said commercial activities are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded. "Sanctioned Countries" shall be deemed automatically to be added to or otherwise modified from time to time consistent with the determination(s) of the government of the United States, and shall include all other countries with respect to which commercial activities are prohibited, embargoed, sanctioned, banned and/or otherwise excluded by determination(s) of the government of the United States from time to time. Each Sanctioned Country, all governmental, commercial, or other entities located therein, and all individuals located in any Sanctioned Country are hereby prohibited from registering or signing up with, subscribing to, or using any service of Timefluence. Each individual which is a National or Citizen of a Sanctioned Country is hereby prohibited from registering or signing up with, subscribing to, or using any service of Timefluence, regardless of where said individual is located. Country-Code Top Level Domain Names for any Sanctioned Countries are hereby prohibited from use in connection with any service of Timefluence

8.7.2. PROHIBITED ORGANIZATIONS/ENTITIES

The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that certain organizations and/or entities (collectively "Prohibited Organizations/Entities" and individually "Prohibited Organization/Entity") are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United States, its citizens and residents. The Prohibited Organizations/Entities are those as set forth in the applicable records of the government of the United States, including without limit those set forth at: http://www.ustreas.gov/ofac; and, http://www.treasury.gov/resourcecenter/sanctions/SDN-List/Pages/default.aspx, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time. Each Prohibited Organization/Entity is hereby prohibited from registering or signing up with, subscribing to, or using any service of Timefluence.

8.7.3 PROHIBITED INDIVIDUALS

The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that certain individuals (collectively "Prohibited Individuals" and individually "Prohibited Individual"), including without limit, certain Specially Designated Nationals are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United States, its citizens and residents. The Prohibited Individuals are those as set forth in the applicable records of the government of the United States, includingwithout limit those set forth at: http://www.ustreas.gov/ofac; and, http://www.treasury.gov/resourcecenter/sanctions/SDN-List/Pages/default.aspx, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time. Each Prohibited Individual is hereby prohibited from registering or signing up with, subscribing to, or using any service of Timefluence.

IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITHRESPECT TO TIMEFLUENCE SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR TIMEFLUENCE ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.

9. DEFINITIONS

"Addendum" means a written amendment or addendum to this Agreement, executed by you and Timefluence, which includes an order form.

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

"Customer Content" means all of your registration information and other information provided by you in connection with your use of the Services, including without limitation information, content, data, messages, text, files, images, photos, video, sounds, other materials, and any of the foregoing provided by any End-User via your or their use of the Services.

"End-User" means any person or entity other than you with whom you or your Affiliates interact using the Service, including any person or entity submitting data, information, files or other content via a form you create via the Services.

"Service Plan" means the plan chosen by you during, or subsequent to your registration to use the Service, or as described in an Addendum.

"Services" means the form building, scheduling, and related services (including and any professional consulting services) provided by us as further described in your Service Plan. Any new or modified features added to the Service are also subject to this Agreement.

"Subscription Charges" means fees payable by you for your use of (a) the Services, as specifically set forth in your Service Plan or an Addendum, (b) any add-on features or Services requested by you from time to time.

"Systems" means modems, servers, software, network and communications equipment and ancillary and hardware that are owned, controlled or procured by you.