Accola.com

11175 Cicero Dr. Suite 13

Alpharetta, GA 30022, USA

Office: (404) 751 1670

General Terms & Conditions

GENERAL TERMS AND CONDITIONS OF TIMESOFT USA INC.

 

 

1.      Applicability

These general terms and conditions apply to all offers of Timesoft USA Inc. (“Timesoft”) and exclusively govern the agreements and relationship between Timesoft and customers. No other terms and conditions shall be binding upon Timesoft unless accepted by it in writing. Timesoft expressly rejects any general terms and conditions used by customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind Timesoft.

 

2.      Offers and Statement of Work

All offers by Timesoft are non-binding and may be revoked at any time, unless Timesoft stated otherwise in writing. Any amendments made by Timesoft in writing or verbally, shall entail a new offer, automatically revoking the previous offer. Any amendments by customer of a Timesoft offer will be deemed a new offer by customer, which Timesoft may accept or reject at its sole discretion. In case of an accepted offer, Timesoft will issue a “Statement of Work”, describing the mutually agreed services and conditions. A Statement of Work will be legally binding for Timesoft and customer.  In case of a contradiction between these general terms and conditions and a Statement of Work, the latter prevails. Changes to an existing Statement of Work will only become effective upon written acceptance by Timesoft. Customer acknowledges and agrees that Timesoft shall have no obligation to provide any particular services, unless explicitly stated in a Statement of Work.

 

3.      Timesoft Responsibilities

Timesoft personell shall abide by all applicable regulations of customer in effect at any time during the term that services are provided by Timesoft. Timesoft carries appropriate workman's compensation insurance as required by applicable law. Customer will from time to time appraise Timesoft of applicable customer policies and regulations, and Timesoft agrees to reasonably cooperate with customer in the enforcement thereof with respect to Timesoft personnel. Timesoft reserves the right, and customer agrees, to the use of third party service providers to assist with, or perform Timesoft services.

 

4.      Customer Responsibilities

Customer shall maintain at all times a current and valid license for all software and products in connection to which Timesoft will provide services. Customer shall provide Timesoft access to all software and products relevant for the Timesoft services, and must provide for adequate working space and facilities; access to and use of information, customer resources, and facilities as reasonably determined necessary by Timesoft to provide the requested services. If Customer fails to provide such access, resulting in Timesoft's inability to provide services, Timesoft shall be entitled to charge customer its standard service rate for all related travel time and the time Timesoft personnel is present at the customer’s premises. To reconstruct lost or altered customer files, data, or programs, customer must maintain a separate backup system or procedure that is not dependent on the software being installed or serviced by Timesoft. Customer must notify Timesoft in advance if customer’s premises, or parts thereof, might pose a health or safety hazard to Timesoft employees or subcontractors. Timesoft may postpone service until customer remedies such hazards.
Customer will always have a representative present when Timesoft provides services at customer's site.

 

5.    Accessories and Parts

Timesoft services do not include the delivery, return, replacement, or installation of supplies or other consumable items (including, but not limited to, operating supplies, magnetic media, print heads, ribbons, toner, and batteries) unless otherwise accepted by Timesoft as set forth in a Statement of Work.

 

6.      Prices and Taxes

  1. Service prices are subject to change at any time, without prior notice.
  2. Customer shall pay all of Timesoft’s reasonable travel, lodging and other out-of-pocket expenses.
  3. Service prices do not include any hardware, parts, software licensing fees, software modifications or add-ons,  software media carriers, and software delivery fees, unless otherwise agreed in writing.
  4. All listed and quoted prices are exclusive of, and customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on Timesoft or on customer by any taxing authority (other than taxes imposed on Timesoft’s income), related to customer’s order.
  5. The service prices quoted are in U.S. dollars.

 

7.      Payments

  1. All payments under this agreement shall be effected in U.S. dollars.
  2. Customer agrees to pay, without the right to set-off any amounts, all invoiced amounts within fifteen (15) days of the invoice date. However, all amounts will be due immediately, in case customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of customer under any Federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by customer of its properties and/or interest for the benefit of creditors.
  3. Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, whichever is higher, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
  4. Payments made by customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the agreement which have remained outstanding for the longest period of time, even when customer specifies that the payment relates to another claim.
  5. Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged breach of warranty or on any other account whatsoever.
  6. Timesoft may require a purchase money security interest or letters of credit, or any other form of security, at all times. If requested by Timesoft, customer will authorize Timesoft to file a financing statement reflecting a purchase money security interest and customer will record such purchase money security interest on its books. If customer does not meet Timesoft’s request to provide security, Timesoft shall be entitled to terminate the agreement or to suspend its obligations.

 

8.      Suspension of Performance

Timesoft is entitled to suspend its performance if customer fails to meet any of its obligations, or if Timesoft reasonably expects that customer will not fulfill its obligations.

 

9.      Representations and Warranties

  1. Timesoft warrants that its services will be performed in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such services. Within thirty (30) days after the services are rendered, customer must notify Timesoft in writing if it believes there has been a breach of this warranty, describing in reasonable detail the nature of the claimed breach. Timesoft will investigate the matter and if it determines that there has been a breach of this warranty, Timesoft’s  sole obligation, and customer’s exclusive remedy, will be for Timesoft to correct or re-perform any affected services.
  2. The representations and warranties hereunder do not cover faults or damages arising from faulty or careless treatment, faulty and unauthorized commissioning, installation, servicing or setting into operation by customer or a third party, improper or defective environmental circumstances and unauthorized, improper or defective relocation of software and/or hardware products. Unauthorized modifications and wrong service and maintenance or service and maintenance by unauthorized people shall invalidate all warranties in connection thereto.
  3. EXCEPT AS UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TIMESOFT MAKES NO REPRESENTATIONS OR WARRANTIES IN CONNECTION TO ITS SERVICES, EXPRESS OR IMPLIED, UNLESS  EXPLICITLY MADE AND PROVIDED BY TIMESOFT IN WRITING TO CUSTOMER.

 

10.  Liability and Limitation of Damages

  1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES OR SERVICES OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE RELATIONSHIP BETWEEN THE PARTIES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TIMESOFT’S MAXIMUM AGGREGATE LIABILITY FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO $100,- OR FIVE (5) PERCENT OF THE AMOUNTS PAID TO TIMESOFT IN CONNECTION TO THE SERVICES SUBJECT TO THE CLAIM, WHICHEVER IS LESS.
  2. Customer agrees to defend and indemnify Timesoft, its present and future officers, directors, shareholders, employees and agents, and to hold each of them harmless from and against any claim, demands, causes of action, damages, liabilities, costs and expenses, including reasonable attorney’s fees, arising from Timesoft’s services to customer, such as but not limited to alleged   unauthorized maintenance, repairs or modification of software or products.
  3. Customer agrees to defend and indemnify Timesoft, its present and future officers, directors, shareholders, employees and agents, and to hold each of them harmless from any and all claims and threatened claims by any third party, including employees of customer arising out of, under or in connection with (i) the death or bodily injury of any third party, including any agent, employee, customer, business invitee or business visitor of customer, or, (ii) the damage loss or destruction of any tangible personal or real property at customer’s premises, both only to the extent that such was not a result of gross negligence by Timesoft or its personnel.

 

11.  Termination

Either party may terminate a Statement of Work if the other party fails to cure its material breach thereof or of these general terms and conditions within thirty (30) days after written notice from the other party of such breach; provided that customer shall have only ten (10) days to cure a failure to pay. In addition, either party may terminate a Statement of Work at any time with thirty (30) days prior written notice to the other party.  Upon early termination of a Statement of Work for any reason, customer shall pay to Timesoft all amounts due to Timesoft for work performed by Timesoft through the date of termination.

 

12.  Confidential Information

  1. Confidential Information means (i) the existence and terms of any agreement and (ii) any non-public, confidential or proprietary information relating to a disclosing party, whether or not technical in nature, including any that is designated by the disclosing party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving party; (ii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving party at the time of disclosure by the disclosing party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing party; or (v) is developed independently and separately by either party without use of the disclosing party’s Confidential Information.
  2. Each party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other party and that it will observe the same due care with respect to such information as they would observe with respect to its own Confidential Information. The other party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without de disclosing party’s prior written consent, which consent may be granted or withheld in such party’s sole and absolute discretion.
  3. Each party agrees that it will restrict the circle of employees or third parties it retains who have access to the other party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in this Agreement.
  4. Immediately following the receipt of a written request to this effect by the disclosing party the receiving party will return any and all Confidential Information received from the disclosing party or destroy such Confidential Information, if the disclosing party so requests.

 

13.  Force Majeure

Timesoft will not be liable for any delay in performing or failure to perform any of its obligations under this agreement caused by events beyond its reasonable control. Timesoft will notify customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.

 

14.  Insurance

Timesoft and customer shall pay all necessary costs to maintain sufficient insurance policies to cover its own personnel and premises for the activities contemplated by or performed in connection with  Statements of Work.

 

15.  Timesoft Personnel.

Timesoft (including its employees and agents) shall for all purposes be deemed to be an independent contractor, and not an employee of customer notwithstanding that customer may have ultimate control over the manner in which the services contemplated are provided. Customer shall not compensate any Timesoft personnel, nor provide any bonus payment, expense compensation, gratuity or benefit. Customer agrees that without the express written consent of Timesoft, customer will not, during Timesoft services and for twelve months after the expiration or termination of the last Statement of Work, solicit any staff or any other employees or independent contractors of Timesoft for employment with customer. Furthermore, during this same period, customer will, neither directly or through third parties employ, or retain services from, any Timesoft personnel, or independent contractors of Timesoft.

 

16.  Severability

If any provision of these terms and conditions or any other agreement between the parties is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.

 

17.  Integration

These general terms and conditions and the Statements of Work constitute the entire agreement between Timesoft and a customer, and supersedes all other prior or contemporaneous communications. These general terms and conditions and the Statements of Work may be modified or amended solely in a writing signed by both parties.  Each Statement of Work issued by Timesoft will incorporate these general terms and conditions and will constitute a separate contract between the Timesoft and customer.  A Statement of Work may amend the terms and conditions of these general terms and conditions as they apply to that particular Statement of Work.

 

18.  Further Assurances

Each of the parties covenants and agrees on behalf of itself, its successors, and its assigns, without further consideration, to prepare, execute, acknowledge, file, record, publish, and deliver such other instruments, documents and statements, and to take such other action as may be required by law or reasonably necessary to effectively carry out the purposes of these terms or any other agreement between the parties.

 

19.  No Beneficiaries 

Any agreement between the parties is for the sole benefit of the parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the parties thereto, any legal or equitable rights thereunder.

 

20.  No Partnership 

Nothing contained in any agreement between the parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the parties. Neither of the parties may pledge or purport to pledge the credit of the other party or make or purport to make any representations, warranties, or undertakings for the other party.

 

21.  Governing Law  and Jurisdiction

Unless stated otherwise in writing, all agreements shall be governed by and construed in accordance with the laws of the state of New York. Any controversy or claim arising out of or relating to these general terms and conditions, Statements of Work, or in general arising between the parties, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. Place of arbitration will be New York, New York. ANY CAUSE OF ACTION AGAINST TIMESOFT, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH ACTION IS PERMANENTLY BARRED.