TERMS OF SERVICE

1.1.            FinClock EMS SAAS SERVICES AND SUPPORT

Subject to the terms of this Agreement, FinClock EMS will use commercially reasonable efforts to provide the Client the Services in accordance with the SaaS packages in section 1. As part of the registration process, the Client will identify an administrative user name and password for The Client’s FinClock EMS account. FinClock EMS reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Subject to the terms hereof, FinClock EMS will provide the Client with reasonable technical support services in accordance with the terms set forth in SaaS package outlined in statement of Services.

1.2.         PACKAGE TRANSITIONS

1. Transitions from one package to another may be necessitated by the organizational changes. In case an organization improves or downgrades its capacity and requires to change from one package to another, the Client should make a transition request in writing.
2. Upon agreement, Finclock team will assess the need and provide the needed services, to ensure smooth transition to the new package.
3. A transition request is acceptable at any time, during the contract period. At this time, a recalculation of pricing is done. Upon receiving the request, the Client success manager will provide guidance on the need basis in regard to minimum requirements for system deployment, support and operationalization.
4. The charges that may be incurred during the transition shall be negotiated as per the need basis.
5. The Client is required to clear their pending payments after which the transition is done within 21 days.

1.3.            RESTRICTIONS AND RESPONSIBILITIES

1.3.1.      The Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by FinClock EMS or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to the Client for use on the Client premises or devices, FinClock EMS hereby grants the Client a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

1.3.2.      The Client represents, covenants, and warrants that they will use the Services only in compliance with FinClock EMS’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  [The Client hereby agrees to indemnify and hold harmless FinClock EMS against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from their use of Services

1.3.3.      Although FinClock EMS has no obligation to monitor The Client’s use of the Services, FinClock EMS may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

1.3.3.1.                   The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  The Client shall also be responsible for maintaining the security of the Equipment, the Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Client account or the Equipment with or without The Client’s knowledge or consent.

1.4.            CONFIDENTIALITY; PROPRIETARY RIGHTS

1.4.1.      Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of FinClock EMS includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of the Client includes non-public data provided by the Client to FinClock EMS to enable the provision of the Services (“The Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by its prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

1.4.2.      The Client shall own all right, title and interest in and to the Client Data [as well as any data that is based on or derived from the Client Data and provided to the Client as part of the Services]. FinClock EMS shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

1.4.3.      [Notwithstanding anything to the contrary, FinClock EMS shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Client Data and data derived therefrom), and  FinClock EMS will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other FinClock EMS offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.] No rights or licenses are granted except as expressly set forth herein.

1.5.            PAYMENT OF FEES

1.5.1.      The Client will pay FinClock EMS the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”).  If The Client’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement). FinClock EMS reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to the Client (which may be sent by email). If the Client believes that FinClock EMS has billed the Client incorrectly, the Client must contact FinClock EMS no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to FinClock EMS’s the Client support department.

1.5.2.         The Client may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by FinClock EMS thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. The Client shall be responsible for all taxes associated with Services other than U.S. taxes based on FinClock EMS’s net income.

1.6.            WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by FinClock EMS or by third-party providers, or because of other causes beyond FinClock EMS’s reasonable control, but FinClock EMS shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, finclock ems does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services.  Except as expressly set forth in this section, the services and implementation services are provided “as is” and finclock ems disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

1.7.            LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for bodily injury of a person, finclock ems and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond finclock ems’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the client to finclock ems for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not finclock ems has been advised of the possibility of such damages.

1.8.            MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, 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.  This Agreement is not assignable, transferable or sublicensable by the Client except with FinClock EMS’s prior written consent.  FinClock EMS may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and the Client otherwise agrees to reasonably cooperate with FinClock EMS to serve as a reference account upon request.

1.9.            SERVICE LEVEL TERMS

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance.  If the Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. The Client’s sole and exclusive remedy, and FinClock EMS’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 1 hour, FinClock EMS will credit the Client 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.  Downtime shall begin to accrue as soon as the Client (with notice) recognizes that downtime is taking place, and continues until the availability of the Services is restored.

In order to receive downtime credit, the Client must notify FinClock EMS in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. FinClock EMS will only apply a credit to the month in which the incident occurred.  FinClock EMS’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of FinClock EMS to provide adequate service levels under this Agreement.

1.10.        SUPPORT TERMS

1. FinClock EMS will provide Technical Support to the Client via Onsite support, telephone, electronic mail and CRM tickets, at all times, within the working hours.
2. The Client may initiate a helpdesk ticket during Support Hours by calling or any time by emailing [support@finclock.com].
3. FinClock EMS will use commercially reasonable efforts to respond to all Helpdesk tickets within the shortest time possible.

1.11.        TERMINATION OF SERVICES

1.11.1.  CLIENT INITIATED TERMINATION

1. Termination of service may be requested by the client. The Client will provide a written request to terminate the services offered as an item or a complete package as described in section 1.
2. Upon request, the Client is required to settle any pending invoices.
3. The Client is provided with a complete data set in SQL format, which has been stored during the period of service. The data can either be transferred to a storage device, either via FTP or a local device, within 10 days from the date of request.

1.11.2.  SYSTEM INITIATED TERMINATION

1. Termination of service may be initiated by Finclock EMS. This type of termination is automatically initiated, when there is a non-payment of offered services for a grace period exceeding 30 days from the date of Invoice.
2. During the grace period, the Client success manager will make follow up with the client. Upon non-payment past the grace period, the Client success manager, will initiate a termination request.
3. The termination request entails cancellation of services and inactivation of all accounts, from the date of request initiation.
4. Data backup is stored for a period of 30 working days after the date of cancellation. Upon non-communication during this period, data storage is permanently closed and SQL backup sent to the Client’s contact person, in a compressed .tar.gz format.