Dovico hosted services agreement (SaaS)

Revised December 2, 2012

DOVICO Software Inc. (“DOVICO“) provides hosted Internet-based online time tracking and project planning software services under the trademarks DOVICO TIMESHEET and DOVICO PLANNING & TIMESHEET. These Terms of Service apply to your use of the services as described below. Please read and understand these Terms of Service prior to accessing or using the services.

BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.


1. Definitions

“Agreement" means these Terms of Service and any Subscriptions.
“API” means the application programming interface provided by DOVICO which enables you to acquire or create applications to interoperate with the Services.

“Application” means any software or web-based application that is capable of interoperating with the Services.
“Customer” means a company or individual that accesses the Services for a free trial or pursuant to a paid Subscription.

"Customer Data" or "Data" means any data, information or material provided or submitted by a Customer and its Users to the Services in the course of using the Services.

“Developer” means a company or individual that provides Applications to any other party.

“Services” means DOVICO’s online time tracking and project planning services including the API, DOVICO branded and supported Applications, updates, upgrades, support, and content (e.g., audio and visual information, documents) made available by DOVICO . The Services do not include Applications that are provided by persons other than DOVICO, whether or not such Applications are made available on a DOVICO website.

"Subscription" refers to a subscription for paid use of the Service identifying the specific Services being ordered and may include the Term, User quantity, other services purchased, applicable fees, billing and payment information.

"Term" means the duration of a Subscription.

“Users” means a Customer’s employees, affiliates, representatives, consultants, contractors or agents who have been supplied user identifications and passwords by the Customer, not to exceed the number of User Licenses purchased by the Customer.

“User Licenses” refers to the named licenses that a Customer has purchased under its Subscription for Services.

2. License

2.1 License grant. You may access and use the Services, as Customer, User or Developer, subject to the rights and limitations described in this Agreement. DOVICO reserves all rights in and to the Services not expressly granted.

3. Ordering, pricing, payments, renewals and taxes

3.1 Fees and charges. Each Subscription shall be for a defined Term (e.g. one month or one year). Subscription fees for Services are payable monthly or annually in advance. Charges for other products and services will be as quoted.

3.2 Payment. A Customer shall provide DOVICO with valid and updated credit card or approved purchase order information as a condition to subscribing for Services. At the commencement of each Term, DOVICO will automatically invoice Customer, and/or charge Customer’s credit card, or as otherwise agreed upon.

3.3 Renewal. Unless the Subscription expressly states otherwise, a Customer’s Subscription will automatically renew at the expiration of the Term. Expiring Terms of less than one year will renew for one month. Expiring Terms of one year or longer will renew for one year.

3.4 Taxes. Customers are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction. If DOVICO has the legal obligation to pay or collect taxes for which the Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer.

3.5 Refunds. Except for any applicable initial trial period, all charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.

3.6 Fee changes. DOVICO may modify its fees and charges or introduce new charges at any time, upon at least thirty (30) days prior written notice to Customers. All pricing terms are confidential, and Customers agree not to disclose them to any third party.

3.7 Late payments. DOVICO may assess a late charge on overdue accounts of 1% of the unpaid amount each month up to the maximum that is permitted by law. Customers are responsible for all reasonable costs incurred by DOVICO to collect any past due amounts including reasonable attorneys’ fees and other costs. DOVICO may suspend or cancel the Services if a Customer does not pay in full and on time.

4. Termination

4.1 End of Term. A Customer or DOVICO may terminate a Subscription or reduce the number of User Licenses, effective at the expiration of the Term by providing at least five (5) business days notice in writing.

4.2 Termination by DOVICO. DOVICO may cancel your use of the Services or a portion thereof at any time if you violate the terms of this Agreement, if DOVICO reasonably believes that your use of the Services represents a direct or indirect threat to its network function or integrity or anyone else’s use of the Services, or if DOVICO is otherwise required by law to do so. Upon notification by DOVICO of cancellation, your right to access and use the Services will stop immediately. Cancellation of the Services for a Customer’s violation of the terms of this Agreement will not change the Customer’s obligation to pay any Subscription fees due for the applicable Term.

4.3 Termination of Agreement. This Agreement terminates effective when any Subscriptions have expired or been cancelled and you have completely ceased to access or use the Services.

4.4 Survival. Sections 1, 4.3, 5.3, 7, 9-13 and 15 will survive any termination or expiration of this Agreement.

5. DOVICO’s Provision of the Services

5.1 DOVICO’s Responsibilities. DOVICO shall: (a) provide support for the Services to Customer, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which DOVICO shall give at least 5 days notice via the Services), or (ii) any unavailability caused by Force Majeure as stated in Section 15.7, and (c) provide the Services only in accordance with applicable laws and government regulations.

5.2 Protection of the Services. DOVICO may suspend your use of the Services if DOVICO reasonably believes that your use of the Services may impair the Services or interfere with any person’s use of the Services.
5.3 Rights reserved. DOVICO is the owner of all of the intellectual property rights in and to the Services and reserves all rights other than those expressly granted herein.

6. Use of the Services

6.1 User Licenses. You may issue your paid-up User Licenses to Users solely for your internal business purposes. User Licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who no longer use the Services.

6.2 Your Responsibilities. You shall (a) be responsible for your Users’ compliance with this Agreement, (b) keep all of your passwords confidential, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify DOVICO promptly of any unauthorized access or use, and (d) use the Services only in accordance with the help documentation and applicable laws and government regulations.

6.3 Restrictions. You shall not (a) make the Services available to anyone other than your Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. , (g) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (h) reverse engineer the Services, or (i) access the Services in order to build a competitive product or service or to copy any features, functions or graphics of the Services.

7. Data Ownership and Protection

7.1 Ownership of Customer Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such your Data. Except as provided herein, DOVICO acquires no right, title or interest from you under this Agreement in or to any of your Data.

7.2 Protection of Customer Data. DOVICO shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. DOVICO shall not (a) modify your Data, (b) disclose your Data except as compelled by law or as expressly permitted in writing by you, or (c) access your Data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.

7.3 Preservation of Customer Data. DOVICO performs regular backups of Customer Data for the purpose of recovery in the event of a failure in DOVICO's data centers. DOVICO shall not be liable for the deletion, correction, destruction, damage, loss or failure to store your Data unless such deletion, correction, destruction, damage, loss or failure is attributable to the negligence of DOVICO or its agents or employees.

7.4 Deletion of Customer Data upon Termination. Within twenty-five (25) days after termination of this Agreement, DOVICO will upon request provide to you a file of your Data. You agree that after such period of twenty-five (25) days DOVICO shall have no obligation to retain your Data.

7.5 Compliance with laws. DOVICO and its hosting subcontractor shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with hosting and data protection.

7.6 Personal Data (EU). For greater certainty, DOVICO shall abide by all applicable laws, including without limitation the United Kingdom Data Protection Act of 1998 (the “Act”), in connection with privacy and personal data protection. DOVICO and Customer agree that DOVICO is the processor and Customer the controller of any Personal Data (as defined in the Act) that is submitted to the Services under Customer’s account. DOVICO processes Personal Data only pursuant to Customer’s instructions and for the sole purposes of providing the Services. DOVICO shall not access or transfer Personal Data out of the United Kingdom unless (a) instructed in writing by Customer or (b) it is necessary to do so in order to diagnose or repair a technical problem with the Services. In the event of a technical problem with the Services requiring access to or transfer of Personal Data, Customer hereby instructs DOVICO to take such steps as are necessary to diagnose and repair the Services at DOVICO’s secure facility in Canada, a country for which the European Commission has made a positive finding of adequacy, to use Personal Data only to the extent necessary, and to delete the Personal Data from DOVICO’s facility once the authorized purpose is completed.

8. API Specific Terms

8.1 Tokens: Customers may enable Applications using one or more secret keys (“Tokens”) provided within the Services to access and modify their Data. Customers are responsible for maintaining the confidentiality and restricting the distribution of their Tokens.

8.2 Access to Customer Data: You acknowledge that, by disclosing your Token to any person or by using your Token to enable any Application, that person or Application may be able to access and disclose, modify, transfer or delete your Data. Accordingly, you understand and agree that:

(a) By disclosing your Token as stated above, you authorize DOVICO to grant to such person or Application access to your Data via the API;
(b) You are responsible for establishing and enforcing your rights with respect to your Data with such person or Developer of such Application;
(c) DOVICO shall not be liable for any disclosure, modification, transfer or deletion of Customer Data resulting from Customer's or Users’ use or disclosure of a Token, including without limitation access by Developers or the use of any Application, unless expressly provided otherwise by DOVICO;
(d) The API allows for bulk operations to Customer Data that may not be reversible, and Customers are responsible for any unintended operations on their Data; and
(e) The Services allow you to disable access to your Data via the API.
8.3 Restrictions: You shall not in any Application or use of the API:
(a) Access or attempt to access any Data that is not authorized within the Token;
(b) Circumvent the technical limits within the API;
(c) Circumvent the licensing requirements provided in subsection 6.1 or otherwise; or
(d) Create extraordinary loads on the Services;
(e) Communicate any text or other material which may tend to disparage DOVICO or the Services; or
(f) Use any DOVICO trademark or logo to indicate endorsement of or affiliation with your Application without the prior written consent of DOVICO.

8.4 Disclosure by DOVICO: DOVICO shall not provide access to Customer Data via the API except as authorized by paragraph 8.2(a).

8.5 API Limits: DOVICO may at its discretion impose or adjust the limits on your use of the API, or terminate your use of the API.

9. Warranties

9.1 Limited warranty. DOVICO warrants that the Services will conform substantially to the description of them contained in the applicable DOVICO Help documentation. This limited warranty is subject to the following limitations:
(a) This limited warranty applies only during the Term, including any renewals ("Warranty Period");
(b) Any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
(c) This limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this Agreement or applicable policies, or resulting from events beyond DOVICO’s reasonable control;
(d) This limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
(e) This limited warranty does not apply to downtime or other interruption in access to the Services.
9.2 Remedies for breach of limited warranty. If a Customer notifies DOVICO within the Warranty Period that a Service does not meet the limited warranty, then DOVICO will, at its option, either (a) terminate the Service and return the amount paid for the Service prorated for the unexpired portion of the Term, or (b) update such Service to make it conform. These are Customer’s only remedies for breach of the limited warranty unless other remedies are required to be provided under applicable law.

9.3 FOREX DATA. THE SERVICES DISPLAY AND USE FOREIGN EXCHANGE DATA (“FOREX DATA”) THAT IS PROVIDED BY OANDA INC. NOTWITHSTANDING SUBSECTION 9.1, NEITHER DOVICO NOR OANDA WARRANTS THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF FOREX DATA, AND YOU ACKNOWLEDGE THAT FOREX DATA ARE BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

9.4 DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, DOVICO PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. DOVICO DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.

10. Defense of infringement and misappropriation claims

10.1 Agreement to protect. DOVICO will defend Customer against any claims made by an unaffiliated third party that the Service infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret or undisclosed information. DOVICO will also pay the amount of any resulting adverse final judgment (or settlement to which DOVICO consents). This Section 10 provides Customer’s exclusive remedy for these claims.

10.2 What Customer must do. Customer must notify DOVICO promptly in writing of the claim and give DOVICO sole control over its defense or settlement. Customer must also provide DOVICO with reasonable assistance in defending the claim. DOVICO will reimburse Customer for reasonable out of pocket expenses that it incurs in providing that assistance.

10.3 Limitations on defense obligation. DOVICO’s obligations will not apply to the extent that the claim or award is based on:
(a) Customer’s use of the Service after DOVICO notifies it to discontinue its use due to a third party claim;
(b) Customer’s combination of the Service with a non-DOVICO product, data or business process;
(c) Damages attributable to the use of a non-DOVICO product, data or business process;
(d) Any trade secret claim, where Customer acquires the trade secret (i) through improper means; (ii) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) from a person (other than DOVICO) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret.
Customer will reimburse DOVICO for any costs or damages that result from any of the above actions.

10.4 Specific rights and remedies in case of infringement.
(a) DOVICO’s rights in addressing possible infringement. If DOVICO receives information concerning an infringement claim related to the Service, DOVICO may, at its expense and without obligation to do so: (i) procure for Customer the right to continue to use the allegedly infringing Service, (ii) modify the Service, or (iii) replace the Service with a functional equivalent, to make it non-infringing, in which case Customer will immediately stop using the allegedly infringing Service after receiving notice from DOVICO.
(b) Customer’s specific remedy in case of injunction. If, as a result of an infringement claim, Customer’s use of the Service is enjoined by a court of competent jurisdiction, DOVICO will, at its option, either: (i) procure the right to continue its use; (ii) replace it with a functional equivalent; (iii) modify it to make it non-infringing; or (iv) terminate the License for the infringing Service and refund any amounts paid in advance by Customer for unused Services.

11. Limitation of liability

11.1 Limitation on liability. Except as otherwise provided in this Section 11, to the extent permitted by applicable law, the liability of DOVICO and of DOVICO’s contractors to Customer arising under this Agreement is limited to direct damages up to the amount Customer paid DOVICO for the Service giving rise to that liability during the (a) Term or (b) twelve (12) months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
(a) DOVICO’s obligations under Section 10 "Defense of infringement and misappropriation claims";
(b) Liability for damages awarded by a court of final adjudication for gross negligence or willful misconduct by DOVICO or its employees or agents; or
(c) Liability for personal injury or death caused by negligence by DOVICO or its employees or agents.

11.2 EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NO PARTY, NOR ANY OF ITS AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS OR OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

12. Confidentiality:

12.1 Confidential Information. In fulfilling its obligations under this Agreement, either party may disclose or deliver to the other party certain confidential and/or proprietary information concerning its business and/or the business of its affiliates, parent or subsidiary entities ("Disclosing Party"), which may include (but is not limited to) information and/or documents relating to Disclosing Party's business plans, editorial standards, publications, processes, finances, legal and personnel practices and other information that if appropriated to the use of the receiving party ("Recipient") or disclosed to others could cause substantial competitive and other injury to Disclosing Party ("Confidential Information"). Without limiting the generality of the foregoing, the terms and conditions of this Agreement (but not the existence thereof) shall constitute the Confidential Information of both parties, and Customer Data shall constitute the Confidential Information of Customer.

12.2 Use of confidential information. Recipient agrees that it will use all Confidential Information solely to fulfill its obligations under this Agreement, and for no other purpose, and that it will hold all Confidential Information in the strictest confidence. To that end, Recipient will keep all Confidential Information in a secure place; take all necessary measures to prevent unauthorized access, use, reproduction or disclosure thereof; and limit access to the Confidential Information only to individuals on a need-to-know basis.

12.3 Exclusions. Confidential Information shall not include any information that (a) is or subsequently becomes publicly available or generally known in the relevant industry without Recipient's breach of any obligation owed to Disclosing Party; (b) was known to Recipient (and such knowledge is evidenced by Recipient's written records) prior to disclosure of any information by Disclosing Party; (c) is lawfully disclosed to the Recipient by a third party without any restriction on disclosure; or (d) is independently developed by the Recipient.

12.4 Legal process exception. In the event that any of the Disclosing Party's Confidential Information is required to be disclosed by Recipient pursuant to subpoena or court order, Recipient will take all reasonable steps to give Disclosing Party sufficient prior notice to enable it to attempt to avoid such disclosure (if Disclosing Party so decides), will use all reasonable efforts to cooperate with Disclosing Party in such attempt and, if disclosure is required, will furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to Disclosing Party, it is legally compelled to disclose.

12.5 Survival of obligations. Recipient's obligations hereunder will survive the expiration or earlier termination of this Agreement for a period of two (2) years. Any employees or other persons, including independent contractors, who are to be provided Disclosing Party's Confidential Information by Recipient, will be bound by the terms and conditions of this Agreement as if they were a party hereto. A breach by any such person will also be considered a breach by Recipient.

13. Notices

13.1 Notices to Customer. DOVICO may give notices in connection with this Agreement by means of electronic mail to Customer’s e-mail address on record in DOVICO's account information or by regular or overnight mail, or express courier to Customer’s address on record in DOVICO's account information. Notices in connection with changes in the Services and policies shall be posted on the Services. Notices shall be deemed to have been given when received by Customer.

13.2 Notices to DOVICO. Customer may give notices in connection with termination or modification of a Subscription via e-mail to Customer’s DOVICO customer service contact. All other notices to DOVICO required by this Agreement shall be by electronic mail to legal@dovico.com or by regular or overnight mail, or express courier to DOVICO at the following address: DOVICO, P.O. Box 27058, Dieppe, New Brunswick, Canada E1C 1W1 addressed to the attention of: Chief Financial Officer. Notices shall be deemed given when received by DOVICO.

14. Modification to Services and Agreement

14.1 Services and policies. DOVICO reserves the right to change the Services or its policies relating to the Services at any time, effective upon posting of notice of such changes or updated version of the policy on the Services. Continued use of the Services after thirty (30) days have passed after notice of any such changes shall constitute Customer’s consent to such changes.

14.2 Limits on Service. DOVICO may establish limits on the Services, for example, the format and size of document attachments uploaded to the Service, the number of days the Service will retain any content that DOVICO, Customer or its Users store on the Service, the maximum storage space on DOVICO’s servers available to Customer, or the number and type of reports Customer can generate through the Service.

14.3 Agreement. DOVICO shall notify Customer of any material changes to this Agreement, the most current version of which is located at http://www.dovico.com/agreement.aspx. The revised Agreement shall become binding upon Customer at the commencement of the next Term which occurs after a delay of 30 days from such notification unless Customer provides notice of non-renewal prior to such renewal in which case this Agreement will expire and not renew.

15. Miscellaneous

15.1 Assignment. This Agreement may not be assigned by either party without the prior written approval of the other party but may be assigned without consent to (a) a parent or subsidiary of either party, (b) an acquirer of assets of either party, or (c) a successor by merger to either party. Any purported assignment in violation of this section shall be void.
15.2 Applicable law. This Agreement shall be governed by the laws applicable in New Brunswick, Canada, without regard to the choice or conflicts of law provisions of any jurisdiction. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The Services are protected by copyright and other intellectual property rights laws and international treaties.
15.3 Dispute resolution. Any action to enforce this Agreement must be brought in the Province of New Brunswick, Canada. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

15.4 Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.

15.5 Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.

15.6 Entire agreement. This Agreement and the terms set forth in any Subscription constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications.

15.7 Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), Internet service provider failures or delays, denial of service attacks,, acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services)). This Subsection will not, however, apply to Customer’s payment obligations under this Agreement.

Questions regarding this Hosted Services Agreement or DOVICO’s privacy and security policies may be directed to DOVICO's Security Administrator by e-mailing such questions to: legal@dovico.com.
Or by regular mail addressed to:

DOVICO Software Inc.
Attn: Security Administrator
PO Box 27058,
Dieppe, NB
Canada
E1C 1W1

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