TERMS & CONDITIONS FOR USE OF ATTENDANCE ON DEMAND SERVICES
These terms and conditions (“Agreement”) are made and entered into between your organization (“Customer”), through its duly authorized representative, and Attendance On Demand, Inc., located at 22300 Haggerty Road, Northville, MI 48167 (“AOD”). This Agreement is binding between Customer and AOD.
- SERVICES. Based on information and data supplied by or on behalf of Customer and in consideration for the payment of all applicable fees as set forth in an applicable ordering document (“Fees”), AOD’s hosted proprietary solution shall perform various workforce management functions (“Services”). AOD shall perform all reasonably necessary duties that are consistent with the Services. Customer’s production use of the Services is deemed as Customer’s acceptance of the implementation of the Services.
- CUSTOMER RESPONSIBILITIES. In addition to paying the Fees on a timely basis, Customer agrees at all times: (i) to use the Services in a manner consistent with all applicable international, federal, state and local laws and regulations; (ii) that it is solely responsible for its use of the Services which Customer is using at its own risk; (iii) to have properly functioning Internet browser software and an Internet connection with sufficient speed and available bandwidth to support its use of the Services; (iv) that it represents and warrants the accuracy and completeness of any information and data that it provides in using the Services; (v) that Customer is solely responsible for backing up any data or information uploaded to or made available to Customer through the Services; (vi) that anyone having access to Customer’s user identification and password can gain access to the Services and that Customer is solely responsible for protecting such access as well as for any activity undertaken through such access; (vii) that Customer is solely responsible for any loss of information, data, programs, breaches of security, viruses and disabling or harmful devices that Customer may download or otherwise experience as a result of Customer’s use of the Services and (viii) to return leased equipment in the same condition the equipment was in when it was leased, reasonable wear and tear excepted; Customer is responsible for replacement of leased equipment that is damaged, lost or stolen.
TERM & TERMINATION. This Agreement is effective on the date that AOD accepts an order from Customer and shall remain in effect for a period of thirty (30) days or a different term (up to two years) set forth in the order form. Thereafter, this Agreement
will automatically renew each calendar month unless one party gives the other party thirty (30) days written notice of its intent to terminate this Agreement.
At any time, a party may terminate for cause upon written notice in the event of: (a) the other party’s material breach of this Agreement or (b) the bankruptcy or insolvency of the other party.
- OWNERSHIP. Customer agrees that technology underlying the Services is the exclusive property of AOD or its licensor and there is no intention to convey any rights or licenses to Customer. All right, title and interest in and to any copyright, trademark, service mark, trade secret, and any other proprietary right relating to the Services and the related logos, product names, etc. are reserved by AOD. Customer is granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services solely for the authorized uses described above. Customer shall do nothing to infringe, impeach or lessen the validity of the Services.
- LIMITED WARRANTIES. Each party represents and warrants that it is duly authorized to enter into this Agreement. AOD warrants that it will use reasonable care and skill to perform the Services. AOD, ITS LICENSOR AND ANY OTHER PARTY PROVIDING THE SERVICES MAKE NO OTHER WARRANTY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT AND SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICES SERVE TO ENSURE CUSTOMER’S COMPLIANCE WITH THE AFFORDABLE CARE ACT OR ANY OTHER LEGAL OBLIGATION OR STATE OR FEDERAL LAW OR REGULATION OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER UNDERSTANDS AND AGREES THAT ALL FUNCTIONS PERFORMED AT OR GENERATED THROUGH THE SERVICES ARE ENTIRELY AT CUSTOMER’S OWN RISK AND THAT AOD DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OR THE INFORMATION TRANSMITTED THROUGH ITS SYSTEM. THE SERVICES SHOULD NOT BE RELIED UPON AS THE SOLE BASIS FOR EMPLOYMENT-RELATED DECISIONS.
INDEMNIFICATION. If a third party claims or threatens a claim that the material AOD uses in connection with providing services to Customer infringe on that party’s patent, trademark, copyright or trade secret, then AOD will indemnify, defend and hold
harmless the Customer and its respective employees, officers, agents and directors against such claim or threatened claim at AOD’s expense and will pay all costs, damages and reasonable attorney’s fees that a court of competent jurisdiction
awards in connection with that claim (or which AOD agrees is a final settlement).
If a third party claims or threatens a claim that: (a) in using the Services the Customer has violated any international, federal, state or local regulation or law, (b) Customer or its personnel have acted with gross negligence or willful misconduct, or (c) Customer has infringed on third party’s patent or copyright, then Customer will indemnify, defend and hold harmless AOD, AOD’s licensor and any other party providing the Services and their respective employees, officers, agents and directors against such claim or threatened claim at Customer’s expense and will pay all costs, damages and reasonable attorney’s fees that a court of competent jurisdiction awards in connection with that claim (or which Customer agrees is a final settlement). The indemnification obligations above are subject to the indemnified parties: (1) promptly notifying the indemnifying party of the claim or threatened claim; (2) permitting the indemnifying party to control and cooperates with the indemnifying party in the defense of any claim and related settlement negotiations; and (3) obtaining the consent of the indemnifying party prior to incurring any cost, damage or attorney fee for which it will seek reimbursement from the indemnifying party.
- LIMITATIONS OF LIABILITY. AOD, AOD’s LICENSOR AND ANY OTHER PARTY INVOLVED IN PROVIDING THE SERVICES SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM CUSTOMER’S ACCESSING OR USE OF THE SERVICES OR ARISING FROM OR RELATING TO ANY TERM OF THIS AGREEMENT REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT, OR OTHERWISE. IN NO EVENT, INCLUDING, WITHOUT LIMITATION, FAULT OR NEGLIGENT ACTS, SHALL AOD, AOD’s LICENSOR OR ANY OTHER PARTY INVOLVED IN PROVIDING THE SERVICES BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES [INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS, DAMAGES OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, INABILITY TO USE THE SERVICES, REGARDLESS OF WHETHER AOD, AOD’s LICENSOR OR ANY OTHER PARTY INVOLVED IN PROVIDING THE SERVICES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. CIRCUMSTANCES MAY ARISE WHERE, BECAUSE OF A DEFAULT BY AOD, CUSTOMER IS ENTITLED TO RECOVER DAMAGES FROM AOD. REGARDLESS OF THE BASIS ON WHICH CUSTOMER IS ENTITLED TO CLAIM DAMAGES FROM AOD, WHETHER UNDER CONTRACT LAW, TORT LAW OR EQUITY, AOD SHALL BE LIABLE FOR PAYMENT OF THE LESSER OF (A) THE AMOUNT OF ANY ACTUAL DIRECT DAMAGE; OR (B) $10,000.
- GOVERNING LAW AND JURISDICTION. Any dispute which may arise between Customer and AOD concerning this Agreement shall be governed by the laws of the state of Michigan (without reference to its conflict of law provisions) and determined by the U.S. District Court for the Eastern District of Michigan or the state courts of Wayne County, Michigan and the parties hereby submit to the exclusive jurisdiction of such courts. Any cause of action Customer may have with respect to Customer’s use of the Services must be commenced within one (1) year after the claim or cause of action arises. The prevailing party (whether at trial or on appeal) shall be entitled, in addition to such other relief as may be granted, to be reimbursed by the losing party for all costs and expenses incurred thereby, including, but not limited to all reasonable attorney fees and costs actually incurred for the services rendered to the prevailing party.
- MISCELLANEOUS. This Agreement may be modified by AOD from time to time and Company’s continued use of the Services constitutes its acceptance of the updated terms. Customer is encouraged to periodically review our posted terms. Except as otherwise provided in this Agreement, Customer may not transfer or assign this Agreement or any rights under it without the prior written consent of AOD. If any provision of this Agreement or its application is held to be invalid, void, or illegal, that provision shall be severed and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and permitted assigns. The rights, remedies and limitations applicable to AOD under this Agreement also extend to AOD’s agents and representatives, who are intended beneficiaries of this Agreement; there are no other intended third party beneficiaries of this Agreement. The waiver by either party of the breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach. This Agreement contains the entire understanding between the parties pertaining to the Services and supersedes and replaces all prior and contemporaneous agreements between the parties and/or their representatives pertaining to the Services. The terms of this Agreement shall prevail over any other conflicting terms applicable to the Services.
- The following additional terms apply to Customer’s use of Text and Voice Notification functionality (“Text Service”): Customer is solely responsible for: (a) the accuracy of information, including without limitation, phone numbers used for messaging through the Text Service, (b) obtaining appropriate consents in order to send messages, including text messages, through the Text Service and (c) otherwise complying with applicable federal state and local laws when using the Text Service. Customer further acknowledges and agrees that its use of the Text Service includes services from a third party service provider, Twilio, Inc., and Customer agrees that its use of the Text Service is subject to Twilio Terms of Services located at https://www.twilio.com/legal/tos and further agrees that AOD is not in any way responsible for services provided by such third party or any liabilities resulting from such services.
The following additional terms apply to Customer’s use of the VisualACA functionality (“VACA”): AOD grants Customer non-exclusive, non-transferable, limited, personal access to use VACA during the Term. AOD represents
and warrants the accuracy of VACA’s formula that populates files and generates forms, specifically excluding any inaccuracies or errors based on Customer inputting incorrect or incomplete information or data. Customer understands that
AOD will not audit or otherwise verify any information or data provided by Customer. Customer is solely responsible for all information and data inputted and for all decisions by Customer not to input information or data into VACA. Notwithstanding
anything to the contrary in the Customer Agreement, AOD acknowledges that data provided by Customer in connection with the use of VACA may include Personal Data that AOD shall treat as Customer’s Confidential Information.
AOD AND ANY OTHER PARTY PROVIDING SERVICES MAKE NO OTHER WARRANTY TO CUSTOMER IN CONNECTION WITH VACA AND SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT VACA WILL BE UNINTERUPPTED OR ERROR-FREE. AOD DISCLAIMS ANY AND ALL REPRESENTATIONS, IMPLIED OR EXPRESSED, THAT VACA SERVES TO ENSURE CUSTOMER’S COMPLIANCE WITH THE AFFORDABLE CARE ACT OR ANY OTHER LEGAL OBLIGATION OR STATE OR FEDERAL LAW OR REGULATION.
NEITHER AOD NOR ANY OTHER PARTY PROVIDING SERVICES HAVE ANY RESPONSIBILITY FOR CUSTOMER’S FAILURE TO ENTER ALL REQUIRED INFORMATION ACCURATELY, THE OMMISION OR INCORRECT INCLUSION OF INFORMATION OR DATA OR TIMELY SUBMISSION OF FORMS. NO PART OF VACA SHOULD BE RELIED UPON AS LEGAL ADVICE OR OTHER PROFESSIONAL ASSISTANCE RELATED TO ANY PARTICULAR SITUATION, ISSUE OR CIRCUMSTANCE INVOLVING THE AFFORDABLE CARE ACT. CUSTOMER EXPRESSLY ASSUMES RESPONSIBILITY FOR SELECTING VACA AND FOR THE RESULTS OBTAINED FROM CUSTOMER’S USE OF VACA.
Customer acknowledges and agrees to the Business Associate Agreement located at http://www.attendanceondemand.com/terms/BAA-online-version.html that is incorporated by this reference. Customer further acknowledges that Nelco Solutions or another filing service, as applicable (“Filing Service”), may have additional terms that will apply between Customer and Filing Service.
The following terms apply to Customers who connect with PointClickCare through the established integration with AOD (“Active Facilities”):
a) This Agreement is between AOD and Customer, and not PointClickCare and Customer;
b) PointClickCare is not responsible for providing the Services, content contained within the Services, any related support or maintenance to Customer, or any changes that AOD makes to the Customer’s database; and
c) AOD, not PointClickCare, is solely responsible for complying with any of Active Facility’s reasonable and required audit requests, including with respect to logging, reporting of statistics, and third-party security assessments.
Last Updated: January 20, 2020