SOFTWARE AS A SERVICE LICENSE AGREEMENT
This SOFTWARE AS A SERVICE LICENSE Agreement constitutes the agreement between eTOTALplan, Inc., a Florida corporation, with offices located at One South Ocean Boulevard, Suite 304, Boca Raton, Florida 33232 (”eTOTALplan”) and you, (the Subscriber)
Please review this SOFTWARE AS A SERVICE LICENSE AGREEMENT ("Agreement") thoroughly. This Agreement is a legal agreement between you and eTOTALplan Inc. By clicking "Complete Order," indicating acceptance electronically, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then do not indicate acceptance of the Agreement, and do not use the Services.
R E C I T A L S:
eTOTALplan is in the business of developing, marketing, licensing, implementing, and integrating online employee management software aimed at assisting businesses with their employee scheduling, time registration, payroll calculations, employee information, profit forecasting, etc., as well as providing security encryption, logic programming, and hardware integration.
Subscriber is interested in taking advantage of certain of eTOTALplan’s on line software systems.
eTOTALplan is willing and able to provide Subscriber access to and use of certain of its software systems subject to the terms and provisions as herein provided.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the parties hereby agree as follows:
1. Recitals. The above recitals are true and correct and incorporated herein by this reference.
2. Term. This Agreement shall become effective on the date noted on the purchase order ("the Effective Date") and remain in force until it is terminated as provided herein.
3. Grant. eTOTALplan hereby grants to Subscriber a non-exclusive and non-transferrable license to make use of the software systems described on our website and in the User guides online during the term of this Agreement in object code on an as-is basis. The System is provided to Subscriber via eTOTALplan's server as an on-line service for Subscriber to access and use with its own hardware (which hardware may be purchased from eTOTALplan pursuant to a separate agreement).
Subscriber hereby represents, warrants and agrees that it shall only use the System for purposes related to the Subscriber's business activities. Thus, the use of the System shall at all times be limited to data directly pertaining to the Subscriber's own, and not its affiliates, business data. With that said, the parties understand, acknowledge and agree that the System may be used by one or more of Subscriber's employees. Each user shall be provided an individual user account. A user account may be used only by the person designated to that account. Each individual user account shall be established with an individual and distinct user ID number and password. At no time shall more than one person have access to any user account.
4. The Nature of the Services. The System is described on eTOTALplan's home website www.eTOTALplan.com. The System is also described in the user manuals provided to Subscriber upon execution of this Agreement (or previously provided). By executing this Agreement, Subscriber acknowledges receipt of one or more manuals. The System is accessed via logging onto eTOTALplan's server. The System is not and is not authorized to be downloaded to Subscriber's local drive.
The System is based on eTOTALplan's standard software programs. In the event Subscriber requires customization of the System, eTOTALplan is able to handle most such requests, however, such requests shall be developed and implemented for Subscriber pursuant to a separate agreement entered into by and between Subscriber and eTOTALplan.
The System may be revised and updated from time to time in eTOTALplan’s sole discretion. eTOTALplan will keep Subscriber informed of revisions and updates that may impact Subscriber's use of the System.
5. eTOTALplan's Service Levels. eTOTALplan has established the following service functions:
a. Phone Support: eTOTALplan has established a Support telephone number 1-855-5etotal (1-855-538-6825. Phone Support is available Monday through Friday, except on public holidays, from 9:00 a.m. to 4:00 p.m. Eastern Standard Time. (When applicable, Eastern Daylight Saving Time).
b. 24/7 Support Service: eTOTALplan can be contacted at: support@eTOTALplan.com or live online chat Subscriber may use the support service for obtaining information regarding the use of the System and in case of breakdowns or interruptions of the connection to the System. Regular training in the use of the System is not provided via the support system.
eTOTALplan will at all times strive to answer the Subscriber's inquiries without delay. Should this not be possible, eTOTALplan will inform Subscriber as to when Subscriber can expect a reply to its inquiry.
The support service applies to the use of the System only. Inquiries regarding establishment of Subscriber's internet browser, internet connection, router and/or other equipment not delivered by eTOTALplan should be directed to the supplier of such systems.
c. Run Time: eTOTALplan warrants a run time of not less than ninety-nine per cent (99%) during the Regular Run Time and the requested additional run time. (Collectively, the Aggregate Run Time) Regular Run Time is defined as all calendar days from 09:00 a.m. to midnight Eastern Standard Time (When applicable, Eastern Daylight Savings Time) except for the following federal public holidays: New Year Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas. In addition to the Regular Run Time the Customer is entitled to a maximum of 48 hours additional run time per calendar month. Notice of the specific periods of additional run time shall be given in writing. Additional run time may not cover any part of the aforementioned public holidays.
The warranted run time is calculated on a monthly basis. The calculation is initiated one month after the Effective Date. The Customer accepts that run time during the first month following the Effective Date may be less than ninety-nine per cent (99%), but not less than eighty percent (80%).
Despite the foregoing eTOTALplan shall not be responsible for down time caused by the Customer's own systems and/or by impacts caused by sources that are beyond the control of eTOTALplan, such as for example loss of supply of electricity, and/or defects in external cables or transmissions stations.
Provided the Aggregate Run Time during a one month period is less than the warranted ninety-nine per cent (99%) the Customer shall receive a refund of the monthly subscription fee. The refund shall be equal to one per cent (1 %) of the monthly subscription fee for each hour downtime. However, the reduction shall in no event exceed the monthly subscription fee. The subscription fee reduction will be offset in the following month's invoice for subscription fees.
Provided the down time causes the actual run time to be less than ninety-eight per cent (98 %) of the Aggregate Run Time during three (3) consecutive months, the Customer may cancel this Agreement without notice.
Despite the content of eTOTALplan's warranties, representations and disclaimers found in this Agreement the Customer shall have no other remedies against eTOTALplan for down time than the aforementioned right to cancel.
d. Transmission Safety: The use of an SSL certificate assures that the data transmissions between eTOTALplan's and Subscriber's Internet browsers are encrypted with a minimum of 128 bit. All data entered into eTOTALplan's servers are organized on a subscriber by subscriber basis to assure that Subscriber's data cannot be accessed by other subscribers.
e. Viruses: eTOTALplan has implemented anti-virus programs, firewalls and other devises to secure the System. However, despite such implementations, virus attacks may occur and cause loss or destruction of data and down time. Subscriber understands, acknowledges, and agrees that eTOTALplan shall not be liable to Subscriber for loss or destruction of data or any other consequence caused by virus attacks.
f. Maintenance and Updating of the System: eTOTALplan maintains and updates the System on a regular basis. eTOTALplan strives to perform maintenance work during the time period 02:00 a.m. to 05:00 a.m., Eastern Standard Time (When applicable, Eastern Daylight Savings Time). Maintenance may cause down time for the Subscriber. To the extent such down time is foreseeable eTOTALplan will notify Subscriber no less than seventy-two (72) hours in advance. Such notified down time shall not count as a reduction in the Aggregate Run Time unless such notified down time exceeds three (3) hours in the aggregate during any one calendar month.
Subscriber acknowledges, understands and agrees that the maintenance and updating of the System may require Subscriber to carry out configuration changes in Subscriber's internal system and that all costs caused by such changes in configuration shall be borne solely by Subscriber.
eTOTALplan's services to Subscriber for re-configuration and related services, if any, will be invoiced based on the hourly service fees stipulated in Section 6 in this Agreement and incorporated herein by this reference.
g. Subscriber's Responsibilities in the Event of Functionality Problems: Subscriber should consult the link "Operation Status" on eTOTALplan's web site if Subscriber faces functionality problems when using the System. If the link does not provide a solution to the problem, Subscriber should contact eTOTALplan as described above under the headingeTOTALplan's Service Levels.
h. Backups and Re-establishment of Data: eTOTALplan provides backup of the data Subscriber enters into the System with twenty-four (24) hour intervals. The data entered into eTOTALplan's backup files will be used as a basis for the re-establishment of Subscriber's data if such data is lost or damaged. However, Subscriber understands and acknowledges that since backups are only performed once a day, the re-established data may cause loss of data entered into the system up by as much as twenty-four (24) hours prior to the event that first gave rise to loss or damage to Subscriber's data. eTOTALplan hereby agrees to be responsible for all cost related to the backup activities.
Down time caused by eTOTALplan's backup activities shall not count as a reduction in Aggregate Run Time.
Notwithstanding anything stated herein to the contrary, Subscriber hereby understands, acknowledges, and agrees that eTOTALplan shall not have any liability for loss or destruction of Subscriber’s data caused by the fact that eTOTALplan only backups date once every twenty-four (24) hours.
6. Subscription Fees and Payment Terms. Subscriber understands, acknowledges and agrees that it shall pay subscription fees to eTOTALplan on a monthly basis in advance. eTOTALplan will invoice Subscriber each month for subscription fees and other sums due eTOTALplan for all services to be provided/used/provided. The agreed upon monthly subscription fees and possible adjustment of the fees are provided in the purchase order and incorporated herein by this reference.
Each monthly Subscription fee is due and payable on the same day of the calendar month that the original purchase was made on. This is considered the subscribers billing cycle. The first due date is purchase date, the date customer signed up for service. Payment shall be made by Subscriber to eTOTALplan by Credit Card. Subscriber authorizes eTOTALplan to charge credit card used at time of purchase, each month for the recurring monthly Subscription fee payments, until the termination of this agreement. If subscriber wishes to change credit card on file, he needs to do so in writing to eTOTALplan.
In the event eTOTALplan is unable to secure funds from the credit/debit card on file for the monthly transaction for any reason, including but not limited to, insufficient funds in the credit/debit card account or insufficient or inaccurate information provided by subscriber when he submitted the electronic payment, further collection action may be undertaken by eTOTALplan including application of fees to the extent permitted by law
If any payment is late, more than three (3) business days after its due date, Subscriber agrees to pay eTOTALplan a late fee equal to five percent (5%) of the amount of the late payment. In case of any late payment eTOTALplan may, in its sole discretion, send Subscriber a delinquency notice to the e-mail address provided by Subscriber. If payment is not received by eTOTALplan within five (5) calendar days after such e-mail notice has been sent, then eTOTALplan shall have the right to de-activate Subscriber's access to the system without further notice and this Agreement, to the extent it allows for future services, may be terminated in eTOTALplan’s sole discretion.
The fees stated in the Purchase Order are fixed for a period of twelve (12) calendar months following the Effective Date. Thereafter, the fees may be adjusted in eTOTALplan’s sole discretion. eTOTALplan shall give notice of any adjustment of the fees. Such notice shall, when the notice is in regard to fee increases, be given at least one hundred-twenty (120) calendar days prior to the time where the adjusted fees shall become effective.
Subscriber also authorizes eTOTALplan to adjust the subscription fee in accordance with the products offered by eTOTALplan. If Subscriber chooses to increase the use of eTOTALplan to more than what originally was singed up for, through this agreement Subscriber authorized eTOTALplan to charge credit card on file accordingly. Example: if Subscriber signed up for one Location, and then chooses to add additional Locations or increases the amount of active employees for 3 consecutive months to more that what originally was singed up for, then eTOTALplan will automatically upgrade Subscriber to applicable package. eTOTALplan will notify Subscriber in advance of any upgrades.
Fees for support services: $ Triple minimum pay, _ ____per fifteen (15) minutes.
Fees for consultancy services: $_Six time minimum pay, per fifteen (15) minutes.
Separate agreements may be established regarding consultancy services.
7. Subscriber's Data. All data entered into the System by Subscriber belongs to Subscriber. Subscriber is solely responsible for the handling of its data. The data will be stored on eTOTALplan's servers for the sole purpose of being used by Subscriber when making use of the System. eTOTALplan shall not use Subscriber’s data for any of its own purposes and agrees to keep all such data confidential.
All data entered into the System will be kept by eTOTALplan for one-hundred-eighty (180) calendar days following the effective date of termination of this Agreement. Thereafter the data will be deleted without notice to Subscriber. eTOTALplan shall upon request transmit all of Subscriber's data to Subscriber prior to its deletion from the System, after deletion, such transfer shall not be possible. All cost related to such transfer shall be borne by Subscriber. eTOTALplan's fees for the transfer will be based on the service fees found in Section 6 in this Agreement, as amended, in effect at the time of termination of the Agreement.
8. Intellectual Property Rights. Subscriber hereby acknowledges eTOTALplan’s right, title and interest in and to the System and its intellectual property related thereto and comprised thereof, including but not limited to its name and logo and eTOTALplan’s exclusive right to use and license the use of the System and agrees not to claim any title to the System (or any component thereof (other than its own specific data contained therein)) or any right to use the System except as permitted by this Agreement. Subscriber represents, warrants, and agrees not to copy, reproduce, reverse engineer, re-publish, download, or transmit any content from the System or any content from eTOTALplan's websites unless for Subscriber's own use of the System as permitted by this Agreement.
Subscriber, at its expense, shall defend and indemnify and hold eTOTALplan and its officers and directors harmless from and against any and all liabilities, claims, causes of actions, suits, damages and expenses, including reasonable attorneys' fees and expenses, which eTOTALplan and/or its officers and directors become liable for, or may incur or be compelled to pay by reason of claims based on any third parties' claimed rights of any nature to the data Subscriber enters into the System.
The provisions of this Section shall survive any termination of this Agreement.
9. Subscriber's Right to Assign. Subscriber may not assign its rights or obligations under this Agreement directly or indirectly without the prior written consent of eTOTALplan. Any purported assignment or transfer in violation of this Section shall be void.
10. Confidentiality. eTOTALplan acknowledges that during the term of this Agreement, it may become familiar with data entered into the System by Subscriber. eTOTALplan agrees not to communicate, divulge or use for the benefit of itself or any other person, partnership or corporation, any such data entered into the System by Subscriber, except as otherwise required by law. eTOTALplan's obligation to keep confidential shall survive the expiration of this Agreement without time limitation. Notwithstanding anything stated herein, Subscriber acknowledges, understands, and agrees that it shall not hold eTOTALplan liable for disclosures of its data due to unauthorized breaches of the Systems security features/measures unless such breaches are caused solely by eTOTALplan’s gross negligence.
11. Disclaimer of Warranty. Subscriber acknowledges, understands, and agrees the neither eTOTALplan, its employees, its management nor its affiliated companies will be liable for any losses caused Subscriber or any other person or entity by the use of the System, except within the limitations specified in this Section 11 and/or otherwise in this Agreement.
Specifically, this disclaimer of warranty means that neither eTOTALplan, its employees, its management nor its affiliated companies shall be held liable for any indirect, consequential or incidental damages caused by Subscriber’s and/or its personnel’s use of the System. The limitation in liability includes, among other things, claims for lost profits, lost contracts, loss of data, loss of income, loss of business, as well as punitive or exemplary damages. Moreover, Subscriber acknowledges, understands, and agrees that eTOTALplan's liability for damages or any other alleged loss that eTOTALplan is liable for as provided in this Agreement shall in no event exceed the total months of service multiplied by the monthly Subscription fees paid by Subscriber at the time the loss occurred.
12. Termination. This Agreement shall remain in force from the Effective Date until the Agreement is terminated in accordance with the terms and conditions of this Article 12.
eTOTALplan may not terminate this Agreement within the first twelve (12) calendar months following the Effective Date unless Subscriber fails to pay its monthly Subscription fees as provided herein. After the 12 month anniversary date of this Agreement, eTOTALplan may terminate this Agreement by giving Subscriber at least ninety (90) calendar day's prior written notice.
Subscriber may terminate this Agreement at any time by giving eTOTALplan at least ninety (90) calendar days prior written notice.
Notwithstanding anything stated in this Section 12 to the contrary, the Parties shall be entitled to immediately terminate this Agreement by giving written notice to the other party, if the other party has breached the Agreement and such breach is considered fundamental (a payment breach is always considered fundamental) and not cured within five (5) days of written receipt thereof, or the same type of breach has been repetitive (more than one time).
Subscriber acknowledges, understands, and agrees that if the termination date is other than the last day of a subscriber monthly billing cycle, Subscriber shall not be entitled to any refund and the monthly Subscription fees due from Subscriber shall not be prorated. No matter the chosen termination date, Subscriber’s account and access to the system shall terminate on the last day in the billing cycle of the month of termination.
13. Severability and Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein and there shall be deemed substituted for such invalid, illegal or unenforceable provision such other provision as will most nearly accomplish the intent of the parties to the extent permitted by the applicable law.
14.Necessary Acts. The Parties to this Agreement shall perform any acts, including executing any documents, that may be reasonably necessary to fully carry out the provisions and intent of this Agreement.
15. Amendments. This Agreement may be amended only by written agreement executed by both Parties to this Agreement
16. Applicable Law. This Agreement shall be interpreted and construed under the laws of the State of Florida which shall prevail in the event of any conflict of law.
17. Dispute Resolution. Any dispute arising out of, or relating to, this Agreement shall be settled by negotiation in good faith by the parties. In the event that the parties are unable to reach agreement within thirty (30) days after commencement of such negotiations, the dispute shall be referred to arbitration in accordance with the provisions set forth in the Rules of the American Arbitration Association. The arbitration shall take place in Palm Beach County or Broward County, Florida or such other location as the parties may agree, the number of arbitrators shall be one (1), who shall be appointed in accordance with the said Rules, the language used in the arbitral proceedings shall be English and the procedure (insofar as not governed by the said Rules) shall be governed by the laws of the state of Florida. The parties agree that the decision of the arbitrator shall be final and binding.
18. Non Disparagement Clause. Upon termination of this Agreement, each party will refrain from making, spreading or publishing any disparaging or negative comments, statements or implications, whether oral or written, against the other party that has the effect of damaging the reputation or character, or otherwise having a detrimental effect on the party.
19. Force Majeure. Notwithstanding anything stated herein to the contrary, in no event shall eTOTALplan be liable for any delay in performing, or non-performance of any of its obligations under this Agreement if such a delay or non-performance is caused by circumstances beyond eTOTALplan’s reasonable control, e.g., acts of terrorism, acts of G-d (weather), war, fire, or natural disaster.
20. No Waiver. The failure of either party to enforce any right, power or remedy hereunder or to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such rights, powers, remedies, terms, covenants and conditions, unless such waiver is an express written waiver which has been signed by the waiving party. Waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision hereof.
21. Notices. Any notice or other communication to be made hereunder or in connection with this Agreement shall be in writing in the English language and shall be made to the parties at the addresses provided at the opening of this Agreement, as may be amended from time to time by giving proper notice as herein provided of such change in address. Additionally, if the parties have provided e-mail address at time of purchase then the parties have agreed the email notices may be accepted. All notices sent by email will be deemed to have been received on receipt (or, when received on a national holiday or on a Friday after 4:00 p.m. E.S.T., a Saturday or a Sunday,, the next working day following the day of receipt). All notices sent by regular mail will be deemed to have been received 3 business days after the date of posting.
22. Privacy. Subscriber is responsible for all of its data and data processing and maintaining its privacy. eTOTALplan is responsible solely for data processing. To the extent eTOTALplan stores or processes Subscriber’s data, eTOTALplan does so solely in accordance with instructions from Subscriber. eTOTALplan represents that is takes appropriate technical and organizational steps to safeguard the handling of personal data against accidental or unlawful dissemination and/or destruction. At Subscriber’s request, eTOTALplan shall provide evidence of its safeguards that are in place. Subscriber understands, acknowledges, and agrees to enter into a data processing agreement (in accordance with the Data Protection Agency guidelines with one of eTOTALplan’s designated operational suppliers when eTOTALplan allows service operations with a third party. If Subscriber does not enter into such an agreement, eTOTALplan may terminate this Agreement effective immediately upon notice to Subscriber. Subscriber understands, acknowledges and agrees that it is solely responsible for ensuring that the System does not hold and/or process any data inputted directly or indirectly by Subscriber that violates the U.S. privacy laws and regulations. Breach of such agreement entitled eTOTALplan the right to terminate this Agreement immediately upon written notice to Subscriber.
23. Entire Agreement. This Agreement, including Sales Order attached hereto and incorporated herein as an integral part of this Agreement, constitute the entire agreement between the parties in regard to Subscriber' role as Subscriber for eTOTALplan’s System, and supersedes all proposals, oral or written, and all negotiations, conversations or discussions prior to the execution of this Agreement.
Version 1. From January 2011