Terms of Service
Customer Service Agreement
This agreement (this "Agreement") is between TechnoGems, Inc., a Virginia corporation, ("TechnoGems") and any customer or other user ("Customer") of TechnoGems's time-card or timesheet service (the "Service"). All terms and conditions of this Agreement are set forth in this Terms of Service document executed by both parties. This Agreement is effective upon execution of the Terms of Service by both parties, or Customer's activation of a demo account.
(a) TechnoGems will provide the Service pursuant to its then-standard policies and procedures. TechnoGems may change Service features and functionality from time to time and will post notice of any such change on the Website. (b) If Customer uses the Service pursuant to a demonstration account, no provision of this Agreement related to fees will apply. TechnoGems may terminate a demonstration account at any time. Upon signing up for a paid account, the demonstration account will be replaced by a standard account.
(a) Customer will pay TechnoGems's standard fees for use of the Service. All payments will be in U.S. dollars. All payments are due within 30 days of invoice. On all amounts past due, Customer will pay an interest charge of 1.5% per month, or the maximum rate permitted by Virginia law, to compensate TechnoGems for the time-value of the unpaid fees. Customer will be liable for all collection fees arising from TechnoGems's efforts to collect unpaid balances. (b) Customer will pay monthly or on such other basis as is set forth in the during activation of service, and TechnoGems may invoice customer in electronic or paper form, including without limitation by posting electronic invoices through the Service. If the Activation Terms permit credit card payment, TechnoGems may charge fees on their due dates directly to Customer's credit card. A returned check or declined charge attempt constitutes a material breach of this Agreement. (c) Customer agrees to pay all state and local sales, use, or other taxes arising from Customer's use of the Service. TechnoGems may include such taxes in its invoices. (d) If Customer reactivates an account that was previously deactivated due to non-payment, Customer will pay TechnoGems's then-standard reactivation fee. (e) TechnoGems will not be required to refund or credit any amounts paid or prepaid as a result of any failure of the Service or for any other reason.
3. Use of Service and Software.
(a) As used herein, "Software" refers to any software incorporated into or used by the Service. Without limiting TechnoGems's rights or remedies, Customer will not: (i) reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code; (ii) reproduce, modify, distribute, or sublicense the Software; (iii) use the Software or Service for service bureau or time-sharing purposes or in any other way allow third parties to use or access the Software or the Service; or (iv) use the Software or the Service in any way not expressly authorized by this Agreement. (b) Customer acknowledges that the Services is not intended for permanent storage and agrees not to use the Service for archiving or back-up purposes. Customer will not store "mission critical" data on the Service, including without limitation data pertaining to power generation, military or national security, or any function to sustain or rescue the health or well-being of any person. (c) TechnoGems may interrupt the Service to perform extraordinary maintenance or to address and/or mitigate the effects of security breaches and other Service faults, without liability to Customer. (d) From time to time, TechnoGems may add new features to the Service that are described as "beta" ("Beta Features"). In addition to the disclaimers of liability provided in Section 5 below and elsewhere in this Agreement: (i) Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional; (ii) Customer uses any Beta Feature at its own risk; and (iii) Customer will back-up all data it adds to the Beta Features and will not rely on the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Subsection 3(c), the Beta Features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta Features.
4. Security, Access, and Acceptable Use.
(a) Customer will promptly notify TechnoGems of any unauthorized access to or use of Customer data or passwords and will cooperate in any related remedial efforts or in collaborating with law enforcement agencies. (b) TechnoGems has no obligation to monitor the Service. TechnoGems has the right to monitor the Service and to disclose any information arising out of it, including without limitation Customer data, as necessary to satisfy any law, regulation, or demand or request of law enforcement agencies, other government agencies, or auditors or to protect TechnoGems or its customers. TechnoGems may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, or in violation of this Agreement. However, TechnoGems has no obligation to remove any such materials. (c) Customer will not use the Service to transmit or store any data that may be considered obscene or pornographic, that contains defamatory material, or that violates federal, state, or local law. (d) Customer will not disclose any account passwords to any third party not authorized to use the Service. (e) Customer grants TechnoGems the right to display Customer's name on its customer list, for marketing purposes. In the event that Customer's authorized representative requests removal of Customer's name from any such list, TechnoGems will remove Customer's name from all materials, except those already distributed, reasonably promptly.
5. Limited Warranty; Limitation of Liability.
(a) THE SERVICES IS PROVIDED "AS IS" AND AS AVAILABLE. TECHNOGEMS MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No communication between Customer and TechnoGems, written or oral, will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 5 or elsewhere in this Agreement. UNDER NO CIRCUMSTANCES WILL TECHNOGEMS BE LIABLE FOR LOST PROFITS OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE. IN NO EVENT WILL TECHNOGEMS'S LIABILITY FOR DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO TECHNOGEMS DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE. THE LIMITATIONS OF LIABILITY IN THIS SUBSECTION 5(a) AND IN SUBSECTION 5(b) BELOW APPLY EQUALLY TO LIABILITY FOR NEGLIGENCE. (b) Without limiting the generality of Subsection 5(a) above, TechnoGems will have no liability for any claims or losses resulting from security breaches, exposure of sensitive or private data (except to the extent that applicable law forbids limitation of such liability), or loss of data or access to data. (c) TechnoGems is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Service. TechnoGems will not be liable for interruption of or delays in transmission of the Service caused by acts of God, terrorism, fire, water, riots, acts of Government, acts or omissions of Internet backbone providers, or any other causes beyond TechnoGems's control. (d) Customer's sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of TechnoGems is to discontinue using the Service. (e) Customer acknowledges and agrees that TechnoGems has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and disclaimers of warranty set forth in this Section 5 and elsewhere in this Agreement, (collectively, the "Limitations"), and that the Limitations form an essential basis of the bargain between TechnoGems and Customer. The Limitations survive and apply even if Customer's remedies provided in this Agreement are found to have failed of their essential purpose.
Customer will indemnify and hold harmless TechnoGems and its affiliates, employees, officers, directors, agents, licensors, successors, and assigns from all damages and liability, including without limitation attorneys' fees, incurred as a result of: (a) Customer's violation of its obligations under this Agreement, (b) the negligent or willful acts of Customer, or (c) the violation by Customer of any third party's rights in connection with the use or operation of the Service, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, other intellectual property rights, and claims for libel, slander, or unfair trade practices.
7. Termination and Cessation of Service.
(a) Either party may terminate this agreement at any time by written notice to the other. The following provisions of this Agreement will survive the termination of the Agreement for any reason: (i) Sections 5 and 6 above; (ii) Customer's payment obligations incurred before termination; and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose. (b) TechnoGems may deny Customer access to all or part of the Service without advanced notice if TechnoGems believes, in its sole discretion, that Customer may have violated any of the terms of this Agreement.