Last revised on and effective as of September 07, 2016.
All customers agree to the following terms and conditions. PLEASE READ CAREFULLY. BY INDICATING YOUR ACCEPTANCE, YOU ARE AGREEING THAT YOU OR YOUR COMPANY OR OTHER ENTITY YOU REPRESENT WILL BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICES.
This Customer Service Agreement (this "Agreement") is by and between Emshee LLC, a California limited liability company ("Emshee") and you or the company or other entity you represent acknowledging this Agreement ("Customer").
(a) Emshee will provide Customer access to Emshee's Internet-based service (the "Service") which will permit the processing, retrieval, and transmission of transaction data submitted by Customer (the "Customer Data") pursuant to the terms of this Agreement. Emshee reserves the right at any time and in its sole discretion to change Service features and functionality, as well as the terms and conditions of this Agreement. Such modification of the Service and amended terms and conditions of this Agreement will be effective immediately and incorporated into this Agreement. Your continued use of the Service thereafter will be deemed acceptance of such changes.
(b) Customer is responsible for its own compliance with this Agreement, including without limitation the compliance of its employees, officers, agents, and any third party Customer invites to participate in the Service.
(a) Customer's use of the Service will result in fees as set forth on Emshee. The Service fees and charges may be changed by Emshee from time to time by sending Customer notification, in electronic, paper or any other form, or by posting an updated fee schedule on Emshee thirty (30) days prior to changes. Customer agrees that Emshee will charge said fees and charges directly to Customer's credit card. Customer will be notified of any credit card billing failure via electronic mail, invoice, or any other means available to Emshee, and agrees to pay on all amounts due within thirty (30) days of receipt of such notice that have not been disputed specifically in writing. Customer will be liable for attorneys' and collection fees arising from Emshee's efforts to collect unpaid balances.
(b) The Service is billed in advance on a monthly or annual basis, depending on the pricing option selected, and is non-refundable. There will be no refunds or credits for partial months of service, upgrade or downgrade refunds, or refunds for months unused with an open account.
(c) All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
(d) You must provide current, complete and accurate payment information. You must promptly update all payment information to keep Customer's account current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify Emshee if your payment method is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). Changes to such information can be made inside your account dashboard under "Company Settings -> Subscription & Payments". If you fail to provide Emshee any of the foregoing information, you agree that you are responsible for fees accrued on your account. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for you credit or debit card(s) as may be provided by your card issuer or other means.
(a) As used herein, "Software" refers to any software incorporated into the Service. Customer will not, and will not permit, assist, or allow others to, reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code. Customer will not modify or attempt to modify the Software or sublicense or charge others to use or access the Software or the Service. Customer will not use the Software or the Service in any way not expressly authorized by this Agreement. Customer shall have no right, title or interest in and to the Software which rights of ownership will always be held by Emshee.
(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) From time to time, Emshee may add new features to the Service that are described as "beta" ("Beta Features"). Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional features of the Service. If Customer elects to use a Beta Feature, it does so at its own risk. Notwithstanding the provisions of the first sentence of Section 5(a), Emshee does not warrant that the Beta Features will be provided with due care. Customer will back-up all data it adds to the Beta Features and will not rely upon the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Section 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.
(d) Customer may not use the Service (i) in violation of this Agreement; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation; (iv) to store or post defamatory, inflammatory, trade libelous, threatening, or harassing data; (v) to store or post obscene, pornographic or indecent content or data; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. Customer may not use the Service in any application that may involve risks of death, personal injury, property damage or environmental damage. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Service. Customer may access the Service only through the interfaces and protocols provided or authorized by Emshee. Customer may not compile or use the Emshee provided materials or any other information obtained through the Service or the Emshee website for the purpose of unsolicited direct marketing, spamming, unsolicited contacting of customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
(a) Each party will promptly notify the other of any unauthorized access to or use of Customer Data or passwords. The parties will use reasonable efforts to take remedial measures to address any such unauthorized access.
(1) Pursuant to the terms of Section 5 below, Emshee will not be liable for any damages (direct, incidental or consequential of any kind) incurred by Customer arising out of or related to use of the Service, including without limitation in connection with any unauthorized access to or disclosure of Customer Data, resulting from the actions of Customer, any third party, or from the failure of electronic or other security measures.
(2) Customer acknowledges and agrees that notwithstanding the foregoing provisions of this Section 4(a), Emshee may transfer Customer Data to any successor in interest of Emshee under this Agreement.
(b) Emshee has no obligation to monitor the Service. Emshee 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 of government or of internal auditors or to protect Emshee or its customers. Emshee may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, in violation of this Agreement, or otherwise unacceptable. However, Emshee 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) Emshee will collect, use, and share your information in accordance with its privacy policy. Your acceptance of these terms and conditions means that you have read and agree with the terms of the privacy policy.
(a) Each party hereto represents and warrants that (i) it has the full right, power and authority (including corporate right, power and authority, as applicable) to enter into this Agreement, (ii) the acceptance of this Agreement and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and (iii) when accepted this Agreement will constitute the legal, valid and binding obligation of such party, in accordance with its terms.
(b) In connection with the subject matter of this Agreement, Customer agrees to comply with all applicable federal and state laws and regulations.
(c) Customer represents, warrants and covenants: (i) that Customer is solely responsible for its Customer Data, including without limitation, the security of such Customer Data; (ii) that Customer has the necessary rights and licenses, consents, permissions, waivers and releases to use its Customer Data.
(d) Customer represents and warrants that: (i) the information Customer provides in connection with registering for the Service is accurate, complete and in compliance with the requirements hereunder; (ii) if Customer is registering for the Service as an individual, that Customer is at least eighteen (18) years of age and has the legal capacity to enter into this Agreement; and (iii) if registering for the Service as an entity or organization, (1) such entity or organization is duly authorized to do business in the country or countries where it operates, (2) the individual accepting this Agreement and completing the registration for the Service on behalf of the Customer meets the requirements of clause (d)(ii) above and is an authorized representative of such entity or organization , and (3) the employees, officers, representatives and other agents of such entity or organization accessing the Service are duly authorized to access the Service and to legally bind such entity or organization to this Agreement.
(a) EMSHEE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SERVICE AND PERFORMANCE THEREOF, AND WITH RESPECT TO THE SERVICE AND EMSHEE'S PERFORMANCE UNDER THIS AGREEMENT, SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EMSHEE DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE.
(b) With respect to Defense Contract Audit Agency (DCAA) compliance issues, due to the evolving nature of federal regulations, Emshee cannot make, and DOES NOT MAKE, any warranty, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, that the Service will be DCAA compliant and Customer is encouraged to seek advice and proper counsel from persons specializing in DCAA audit and compliance matters to insure Customer compliance with DCAA requirements.
(c) Furthermore, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION EMSHEE'S NEGLIGENCE, WILL EMSHEE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, 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.
(d) IN NO EVENT WILL EMSHEE'S TOTAL LIABILITY FOR ANY DAMAGES, LOSSES, CAUSES OF ACTION, AND RELATED ATTORNEY FEES, WHETHER ARISING IN CONTRACT, TORT, OR EQUITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO EMSHEE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
(e) Emshee is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Service. Emshee is not liable for the loss of any Customer Data.
(f) Customer's sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of Emshee is to discontinue using the Service.
(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 Emshee's or any third party's rights, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, and claims for libel, slander, or unfair trade practices in connection with the use or operation of the Service. Customer's obligation to indemnify will survive the expiration or termination of this Agreement by either party for any reason.
(a) Either party may terminate this agreement at any time. The following obligations will survive the termination of the Agreement for any reason: (i) indemnification obligations set forth in Section 7 above; (ii) obligations to make payments of amounts that become due under this Agreement before termination; and (iii) any other provision hereof where the context of such provision indicates an intent that it will survive the term or termination of this Agreement.
(b) Emshee may deny or may temporarily suspend Customer access to all or part of the Service without notice if Emshee believes, in its sole discretion, that Customer may have violated any of the terms of this Agreement.
(c) Upon termination of this Agreement, Emshee will store and retain Customer Data for any period that may be necessary under the terms of this Agreement and may, in its discretion, store and retain such data for any longer period as may be allowed by applicable law. While such data is stored post-termination of this Agreement, Emshee will not willingly disclose the data to any third-party unless authorized by Customer, or as may be permitted by this Agreement.
(a) EMSHEE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO INTERRUPTION OF, OR DEFECTS IN TRANSMISSION OF, THE SERVICE, including without limitation interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of payments will be made in the case of temporary interruption of or defects in transmission of the Service.
(b) Emshee will not be liable for interruption of or delays in transmission of the Service caused by acts of God, fire, water, riots, acts of Government, acts or omissions of Internet backbone providers, or any other causes beyond Emshee's control.
(a) This Agreement constitutes the entire Agreement between Emshee and Customer regarding the subject matter hereof and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any offer, purchase order, or other similar instrument in writing. This Agreement may not be amended, altered, or changed except by a written agreement signed by the duly authorized representatives of both parties.
(b) In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect it original intent and the remainder of this Agreement will remain in full force and effect.
(c) Customer's rights in this Agreement are personal and are not assignable. Emshee may assign its rights and obligations under this Agreement to third parties.
(d) Emshee is controlled, operated and administered by Emshee primarily from its offices within the USA. Emshee makes no representation that materials at Emshee are appropriate or available for use at other locations outside of USA and access to them from territories where their contents are illegal is prohibited. Customer may not use Emshee or export the Materials in violation of USA export laws and regulations. If Customer accesses Emshee from locations outside of USA, Customer is responsible for compliance with all local laws.
(e) These Terms and Conditions of use shall be governed by the laws of the state of California, USA, without giving effect to its conflict of laws provisions.
(f) If for any reason an arbitration panel or a court of competent jurisdiction finds any provision of the Agreement or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effectuate the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.
(g) The parties agree that any claim, controversy, or dispute arising out of or relating to this Agreement will be settled by binding arbitration in Ada County, California, USA, before a panel of three arbitrators, with Emshee selecting one arbitrator, the Customer selecting one arbitrator, and the two chosen arbitrators each agreeing to select a third arbitrator. The terms and conditions of the arbitration shall be as agreed to by the parties and arbitrators, and if they cannot so agree, then the rules of the American Arbitration Association then existing shall apply; however, the cost of the arbitrator's fees shall be equally borne by the parties. Any decision rendered by the arbitration panel can be entered by any party as a judgment on the arbitration award in the state and federal courts of Ada County, California, and Customer agrees to submit to the subject matter and personal jurisdiction of such courts. The arbitration panel and the court entering any judgment on an arbitration award may award the prevailing party its reasonable attorney's and expert witness fees. The decision of the arbitrators will be binding; provided, however, that Emshee may bring an action in a court of competent jurisdiction for injunctive or other equitable or extraordinary relief as may be necessary to enforce the terms of this Agreement before arbitration may occur.
(h) The remedies provided in this Agreement and at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
(i) No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.
(j) As an added benefit of the services provided by Customer, Emshee will provide Customer with a monthly e-newsletter at no charge. Customer may elect not to receive such e-newsletter.
(k) Customer acknowledges that Emshee is not a payroll system and Customer agrees to take full responsibility to validate the accuracy of data produced by the Service when used by Customer for its own payroll or billing purposes. Customer accepts sole responsibility for ensuring compliance with State and Federal labor laws and reporting and holds Emshee harmless and indemnifies Emshee from any and all payroll, tax and labor compliance liabilities. Certain features of the Service, including multiplying hours tracked by a monetary figure supplied by Customer, are provided for convenience and Customer's reference only and do not and will not reflect the actual calculation of any payment payable by Customer to any person or entity and can never be relied on as such and are not warranted or guaranteed by Emshee to be a payroll calculation or any other payment calculation.
The parties acknowledge that they have read the terms and conditions of this Agreement and hereby agree to be bound thereby. This Agreement will become effective upon Customer's acceptance by electronic acknowledgment on Emshee.
Please contact us with any questions regarding this Agreement at support@emshee.com.
