1. Software Subscription

1.1 Use. Subject to and conditioned on Customer’s payment of Fees and full compliance with this Agreement, Time Doctor grants Customer a non-exclusive, non-sublicensable, non-transferable license during the period of time in which each subscription remains in effect ("Term") to access and use the Software ("Software Subscription") in accordance with the documentation Time Doctor makes available to its general customer base as may update from time to time in connection with upgrades ("Documentation"). The Time Doctor Software Subscription is provided for Customer's commercial use only, not for private use.

1.2 Installation. Use of the Software Subscription may require Customer to install Time Doctor mobile software ("Software") on mobile devices or desktops, which use shall be subject to this Agreement. Time Doctor grants Customer a non-exclusive, non-sublicensable, non-transferable license to install and use the Software only in object code form on compatible devices identified in the Documentation, solely for licensed use of the Software Subscription during the Term and in accordance with the applicable Order Form.

1.3 Service Level Agreement. During the Term, Time Doctor will provide basic support for the Software Subscription to Customer as described in the service-level agreement ("SLA"). Time Doctor will provide the Software Subscription in accordance with applicable laws and government regulations. The Software Subscription, the SLA, and the Documentation are subject to modification from time to time at Time Doctor’s sole discretion, provided the modifications do not materially diminish the functionality of the Software Subscription provided by Time Doctor. Service Level Agreement 

1.4 Support. Time Doctor will provide standard 24/7 support for the duration of the Term, which is provided as part of the Software Subscription without any additional fee.  

1.5 Suspension of Software Subscription. Time Doctor reserves the right to suspend Customer’s access to the Software Subscriptions immediately (i) in the event that Customer breaches Section 3 or Section 6 of this Agreement, or breaches any other provision of this Agreement and fails to correct that breach within the applicable cure period; or (ii) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect Customer. In addition, Time Doctor may, without liability, suspend the Software Subscription (a) as necessary to prevent an attempted security breach or cyber-attack, (b) in order to protect Time Doctor's or its customers systems; or (c) if required by a governmental entity or law enforcement agency. Customer shall receive notification of such suspension, to the extent and in the manner that Time Doctor provides a notification to its other affected customers.

1.6. Aggregated Data. Time Doctor may use data related to the use of the Software Subscription by Customer that (i) does not specifically identify Customer, Users or third parties, and (ii) is combined with the data of other customers, users or additional data sources ("Aggregated Data") for the following purposes: (a) maintaining, improving, and/or analyzing the Software, including training algorithms, analytics and reporting, (b) complying with legal or contractual requirements, (c) analyzing and mitigating security risks such as vulnerabilities or networking issues, and (d) developing, distributing and publishing measures and reports of the Software Subscription. Aggregated Data is not Confidential Information and will not be subject to any confidentiality restrictions or obligations under Section 5.

2. Customer Responsibilities

2.1 Compliance with Agreement. Customer must comply with all terms of this Agreement. Any modifications must be made in writing and signed by both Parties.

2.2 Customer Use of Software Subscription. Customer may only use the Software Subscription in accordance with the Documentation, applicable laws and government regulations and as explicitly set forth in this Agreement. Customer will cooperate with Time Doctor in connection with the performance of this Agreement as may be necessary, which may include making available such personnel and information as may be reasonably required to provide the Software Subscription or support. Customer is solely responsible for determining whether the Software Subscription satisfies the Customer’s legal and/or regulatory requirements.

2.3 Customer Data. Customer shall be solely responsible for the accuracy, integrity and legality of any content or data, including personal data as this term is defined in the applicable data protection laws, submitted by or on behalf of Customer to the Software Subscription and the output of the Software Subscription that incorporates such content or data or is otherwise specific to Customer ("Customer Data"). Customer shall not provide any infringing, offensive, fraudulent, or illegal Customer Data in connection with the Software Subscription, and Customer represents and warrants that any content it provides will not violate the intellectual property or data protection rights, among other rights, of any User or third party. 

Time Doctor reserves the right, in its sole discretion, to delete or disable any Customer Data submitted by Customer that may be infringing, offensive, fraudulent, or illegal. As between the Parties, Customer exclusively owns all right, title and interest in and to all Customer Data and Time Doctor claims no right, title or interest in the Customer Data. Subject to the terms of this Agreement, Customer hereby grants Time Doctor a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and perform and display in Customer's account the Customer Data solely to the extent necessary to provide the Software Subscription to Customer or as otherwise provided herein. Further, Time Doctor may periodically access Customer's account and Customer Data to improve, support, and operate the Software Subscription (e.g., for quality assurance, benchmarking, technical support, or billing purposes).

2.4 Third Party Services. In connection with the Software Subscription, Customer (or its Users) may choose to use or procure third-party products or services that are not licensed to Customer directly by Time Doctor (“Third-Party Services”). The Customer's use of such Third Party Services shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the third party. Time Doctor does not endorse or support, is not responsible for, and disclaims all liability with respect to Third-Party Services, including, without limitation, the privacy practices, data security processes, or other policies related to Third-Party Services. Customer agrees to waive any claim against Time Doctor with respect to any Third-Party Services and shall ensure it has purchased or obtained all necessary licenses required to properly access and use Third-Party Services.

2.5 Unauthorized Access. Customer shall use reasonable measures to prevent unauthorized access to or use of the Software Subscription and notify Time Doctor promptly upon Customer becoming aware of any such unauthorized access or use. Other than Time Doctor's express obligations under Section 7 (Data Protection and Security), Time Doctor assumes no responsibility or liability for Customer Data and the consequences of collecting, submitting and using it within the Software Subscription.

2.6 User Compliance. Customer will be fully responsible for all use under Customer's account and for Users’ compliance with this Agreement. Any breach of this Agreement by a User shall be deemed to be a breach by Customer. Time Doctor’s relationship is with Customer and not individual Users or third parties using the Software Subscription through Customer. Customer will address all claims raised by its Users and third parties using the Software Subscription through Customer directly with Time Doctor. Customer must ensure that all third parties that utilize the Software Subscription through Customer agree (i) to use the Software Subscription in full compliance with this Agreement; and (ii) to waive any and all claims directly against Time Doctor related to the Service

2.7 Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by Time Doctor. Customer grants Time Doctor the right, free of charge, to use Customer’s name and/or logo worldwide, to identify Customer as such on Time Doctor’s website or other marketing or advertising materials. 

3. Restrictions

3.1 Unauthorized Technical or Commercial Use. Customer will not, and will not permit any Users or any third party to: reverse engineer, decompile, disassemble, decode, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software Subscription, Software, hardware tokens, or any data related to the Software Subscription (except to the extent such prohibition is contrary to applicable law that cannot be excluded by the agreement of the Parties); modify, translate, or create derivative works based on the Software Subscription or Software; share, rent, lease, loan, resell, sublicense, distribute, 

use, or otherwise transfer the Software Subscription or Software for time-sharing or service bureau purposes or for any purpose other than its own use, except as expressly provided in an applicable Order Form; build a competitive product or service; attempt to gain unauthorized access to restricted aspects of the Service; publicly disseminate Software Subscription performance information or analysis, including without limitation benchmarks, except with Time Doctor's prior written consent; or use the Software Subscription or Software other than in accordance with this Agreement and in compliance with applicable law.

3.2 Unauthorized Competitive Use. Customer may not access the Software or Service for any competitive purposes whatsoever. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Software or Service by its Users. Customer or Time Doctor will promptly notify the other party of any unauthorized use of, or access to, Customer’s account

4. Payment of Fees

4.1 Fees. Customer will pay Time Doctor all fees specified in Order Forms ("Fees") plus all applicable sales, use, and other purchase-related taxes (or provide Time Doctor with a valid certificate of exemption from the requirement of paying sales, use, or other purchase-related taxes) in accordance with the payment schedule and payment terms set forth on the applicable Order Form. Customer shall be responsible for all taxes related to the Software Subscription and this Agreement. 

4.2 Payment. Except as otherwise indicated in the applicable Order Form, all fees and expenses shall be in U.S. dollars and invoices for Software Subscription shall be due within 30 days. Unpaid and past due Fees are subject to a finance charge of one and one half percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. 

4.3 Suspension. Time Doctor reserves the right to suspend the Service in the event Customer is delinquent in payment of any fees owed herein. Time Doctor will not impose interest charges and/or suspension if the applicable overdue charges are under reasonable and good-faith dispute prior to the due date, and Customer is cooperating diligently to resolve the dispute. If: (i) Customer materially violates this Agreement, including non-payment of outstanding invoices for more than 10 days; (ii) Time Doctor provides Customer with commercially reasonable notice of this violation (which may be by email); (iii) Time Doctor uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to Time Doctor's reasonable satisfaction, then Time Doctor reserves the right to Suspend Customer’s access to the Service. If, after all of the foregoing, Customer still has not cured a violation within 10 days of the commencement of a suspension under this Section, then Time Doctor may immediately terminate all rights, immunities and privileges granted to Customer under this Agreement, and Customer shall be obligated to pay all outstanding amounts due for the remaining Term of the Order Form. 

4.4 Withholding. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Time Doctor on account thereof. If the method of payment is by credit card, Customer agrees to (i) keep Customer’s credit card information updated and (ii) authorize charging Customer’s credit card the Fees when due. Time Doctor will not charge Users any fees for their use of the Software Subscription or Software without Customer’s authorization and the Software can be downloaded by Users free of charge. Users’ carriers or service providers may charge fees for data usage, messaging, phone calls, or other services that are required for them to use the Software Subscription. Unless otherwise agreed, all Fees paid under this Agreement are non-refundable.

4.5 Subscription Upgrades. At any time during the Term, and unless otherwise agreed to in writing by the Parties, any increase or overage in the maximum number of Users specified in the Order Form will be treated in accordance with this Section 4.5 (“Subscription Upgrade”). 

Time Doctor shall invoice Customer for the increase in the maximum number of Users at the subscription rate and payment terms specified in the most recent Order Form, prorated for the remainder of the then-applicable subscription Term. For any future subscription Term, the number of Users and applicable Fees will reflect any Subscription Upgrades.

4.6 Additional Future Orders. If additional Software Subscriptions are purchased subsequent to the initial Order Form, those will be indicated in additional Order Form(s), signed by both Parties.

4.7 Travel Reimbursement. For training or professional services held at Customers’ location, Customer agrees to reimburse Time Doctor for reasonable and customary travel expenses, including air, car, food, and lodging. Time Doctor will submit receipts for any and all travel reimbursement and Customer will promptly reimburse Time Doctor within 30 days.

5. Confidentiality

5.1 Definition. The term “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in any form (written, oral, etc.) that is marked as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances of the disclosure, including, without limitation: trade secrets; technology and technical information (intellectual property, inventions, know-how, ideas, and methods); business, financial, and customer information (including Customer Data and Customer Personal Data); pricing, forecasts, strategies, and product development plans; and/or the terms of this Agreement. However, Confidential Information shall not include any information that (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party without obligation of confidentiality; or (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

5.2 Obligations. Each party understands that the Disclosing Party has or may disclose Confidential Information in connection with this Agreement, but that the Receiving Party shall receive no rights in, or licenses to, such Confidential Information. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside of the scope of this Agreement, except with the Disclosing Party's prior written permission. The Receiving Party agrees: (i) to not disclose Confidential Information to any third party other than those of its employees, contractors, advisors, investors, and potential acquirers (“Representatives”) with a need to have access thereto and who have entered into non-disclosure and non-use agreements applicable to the Disclosing Party’s Confidential Information no less restrictive than the obligations herein, and (ii) to use such Confidential Information solely as reasonably required in connection with the Software Subscription and/or this Agreement. Each Party agrees to be responsible for any breach of this Agreement caused by any of its Representatives. The Receiving Party further agrees to take the same security precautions to protect against unauthorized disclosure or unauthorized use of such Confidential Information of the Disclosing Party that the Party takes with its own confidential or proprietary information, but in no event, will a Party apply less than reasonable precautions to protect such Confidential Information. Each Party acknowledges that the use of such precautions is not a guarantee against unauthorized disclosure or use.

5.3 Required Disclosure. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information as required in response to a request under applicable open records laws or pursuant to any judicial or governmental order, provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party reasonable prior notice to contest such a disclosure. For the avoidance of doubt, Customer acknowledges that Time Doctor utilizes the services of, and Customer may request additional services from, certain third parties in connection with Time Doctor’s provision of the Software Subscription (such as data hosting, telephone service providers, and Customer’s Third-Party Services providers) and such third parties will have access to Customer’s Confidential Information, including Customer Data and Customer Personal Data in accordance with this Agreement.

5.4 Retention. Each Party agrees that, upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party, or provide written certification of the destruction of, all Confidential Information of the Disclosing Party, including all Confidential Information contained in internal documents, without retaining any copy, extract, or summary of any part thereof. Notwithstanding the foregoing, a Receiving Party may retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course of business internal document retention and backup requirements and procedures, provided that such Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.

5.5 Acknowledgement. Customer acknowledges that Time Doctor does not wish to receive any Confidential Information from Customer that is not necessary for Time Doctor to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Time Doctor may reasonably presume that any unrelated information received from Customer is not Confidential Information, unless such information is marked as “Confidential.”

6. Intellectual Property Rights; Ownership

Except as expressly set forth herein, Time Doctor alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Software Subscription or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Software Subscription and/or the Software, which are hereby automatically assigned to Time Doctor. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. As between the Parties, Time Doctor owns all Aggregated Data. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software Subscription or Software, or any intellectual property rights.

7. Data Protection and Security

7.1 Customer Personal Data. In connection with the Software Subscription, Time Doctor may process Customer Data that is protected "personal data", "personal information" or "personally identifiable information" under applicable data protection law ("Customer Personal Data"). If and to the extent Time Doctor processes Customer Personal Data protected by data protection laws applicable to the European Economic Area, Switzerland and/or the UK (including the General Data Protection Regulation (GDPR) or any successor legislation), then the terms of the Time Doctor Data Processing Addendum (DPA) https://www.timedoctor.com/time-doctor-customer-dpa shall be incorporated into and form an integral part of this Agreement. The DPA sets out the Parties obligations with respect to data protection and security when processing such Customer Data on Customer's behalf in connection with the Software Subscription.

7.2 Integrations. Customer (including its Users) may enable integrations between the Software Subscription and certain of its Third-Party Services (each, an “Integration”). By enabling an Integration between the Software Subscription and its Third-Party Services, Customer is expressly instructing Time Doctor to share the Customer Data necessary to facilitate the Integration. Customer acknowledges it is solely responsible for providing any and all instructions to the Third-Party Service provider about the use and protection of Customer Data, including any Customer Personal Data, and for entering into any required agreements with the Third-Party Service provider to protect such Customer Data or regulate its use by the Third-Party Service provider. Customer acknowledges Time Doctor and Third-Party Service providers are not sub-processors of each other.

7.3 Storage and Processing. Customer shall be responsible for determining whether the Software Subscription are appropriate for the storage and processing of Customer Data (including Customer Personal Data) under applicable data protection law. Customer represents and warrants to Time Doctor that the Customer Personal Data provided to or otherwise collected by Time Doctor in connection with the Software Subscription, the means by which Customer acquired such Customer Personal Data, and the Customer's instructions for the processing of Customer Personal Data in connection with the Software Subscription shall comply with all applicable data protection laws.

7.4 Security. Time Doctor shall implement and maintain all reasonable and appropriate technical and organizations security measures designed to protect Customer Data from any accidental or unlawful destruction, alteration, or unauthorized access or disclosure to third parties in accordance with the Time Doctor Security policies part of ISO 27001 (the latest version of which is available here: ISO-27001 or such other URL as may be notified to Customer from time to time).

7.5 Data Retention. Time Doctor retains Customer Data in accordance with its Data Retention and Deletion Protocol (the latest version of which is available here such other URL as may be notified to Customer from time to time).

7.6 Anonymized Data. Use of Anonymized Data for Machine Learning Training

Purpose and Processing: Time Doctor uses anonymized Customer Data to train machine learning algorithms with the goal of enhancing the functionality and efficiency of Time Doctor’s services. This data is processed to ensure no personal identification is possible.

Anonymization Techniques: Time Doctor uses advanced data anonymization methods to ensure that the individual cannot be identified. This includes data aggregation and pseudonymization, where direct identifiers are removed, and indirect identifiers are managed to prevent re-identification.

Legality and Compliance: The anonymization process complies with GDPR and other relevant data protection regulations, ensuring that the data cannot be linked back to any individual. Anonymized data is treated as non-personal data under these laws.

Usage of Anonymized Data: Anonymized data is used exclusively for internal purposes such as improving Time Doctor’s algorithms and services. It does not leave Time Doctor’s secure environment.

Transparency and Rights: Time Doctor commits to transparency about Time Doctor’s data processing practices. Customers can inquire about Time Doctor’s data handling and anonymization practices at any time. While anonymized data does not confer individual rights under GDPR, Time Doctor respects the principle of minimal data usage and adhere strictly to legal standards.

Data Security and Access Control: Access to anonymized data is strictly limited to authorized personnel who are involved in the machine learning training process. All such personnel are trained in data protection and bound by confidentiality obligations.

Retention of Anonymized Data: Anonymized data is retained only as long as necessary to fulfill the stated purposes of enhancing Time Doctor’s services. It is regularly reviewed and permanently deleted when no longer needed for its intended purpose.

8. Indemnification

8.1 By Time Doctor. Time Doctor will indemnify, defend, and hold harmless Customer from and against all third party claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) (collectively "Losses") arising out of a third party claim that Time Doctor's technology used to provide the Service infringes or misappropriates any United States patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Time Doctor have any obligations or liability under this Section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by Time Doctor, and (ii) any content, information or data provided by Customer, Customer’s users or other third parties. 

The foregoing obligations do not apply with respect to portions or components of the Software Subscription (i) not created by Time Doctor; (ii) resulting in whole or in part from Customer specifications; (iii) that are modified after delivery by Time Doctor; (iv) combined with other products, data, processes, or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where Customer’s use of Software Subscription is not strictly in accordance with this Agreement and all Documentation. 

If Time Doctor receives information about an actual or alleged infringement or misappropriation claim that would be subject to indemnification rights set forth in this Section 8, Time Doctor shall have the option, at its expense, to (i) modify the Software to be non-infringing or (ii) obtain a license for Customer to continue using the Software. If Time Doctor determines it is not commercially reasonable to perform either of the above options, then Time Doctor may at its option elect to terminate the license for the Software Subscription and refund the unearned portion of any prepaid subscription Fees, prorated on a monthly basis. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION, AND/OR CLAIMS ALLEGING INFRINGEMENT OR MISAPPROPRIATION. 

8.2 By Customer. Customer will indemnify, defend, and hold harmless Time Doctor, its licensors, and each of their respective employees, officers, directors, and affiliates ("Indemnified Parties"), from any and all Losses which result from any claim or allegation against any Indemnified Party arising from Customer’s use of the Software or its breach of any term of this Agreement. Time Doctor will provide Customer with notice of any such claim or allegation, and it will have the right to participate in the defense of any such claim at its expense.

9. Termination

9.1 Term. This Agreement commences on the Effective Date. Subject to earlier termination as expressly provided for in this Agreement, the initial Term of this Agreement shall be for the Term specified in the Order Form, or in the event of multiple Order Forms, until the Term of all Order Forms has expired. Each Order Form and this Agreement shall automatically renew after the initial Term and any renewal Term for a renewal Term equal to the expiring subscription Term, unless either party provides to the other at least thirty (30) days prior written notice that it will not renew. 

The Fees per User for each renewal Term will be equal to the Fees per User for the immediately prior Term, plus a price increase. Any pricing increase will not exceed greater of CPI or seven percent (7%) per year, unless the pricing was designated in the applicable Order Form as promotional or one-time; provided, however, the Fees for each renewal Term shall not exceed the list price as of the start date of such renewal Term.

9.2 Termination for Breach or Cause. Either party may suspend performance or terminate this Agreement as of right and without judicial formalities if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.

9.3 Termination for Convenience. If Customer wishes to cancel this Agreement prior to the completion of the initial or subsequent Term in effect and there has been no material breach, then Customer shall pay the balance of the remaining payments for the Term as listed in the Order From, as renewed.

9.4 Effects of Termination. The Sections of this Agreement which by their nature should survive termination or expiration of this Agreement, including but not limited to Sections 2 through 13, will survive termination or expiration of this Agreement. No refund of Fees shall be due in any amount on account of termination by Time Doctor pursuant to this Section 9. In the event of termination by Customer pursuant to Section 9.2, Customer shall be entitled, as its sole and exclusive remedy, to receive a refund of any prepaid subscription Fees paid by Customer to Time Doctor for the Software Subscription not rendered as of the termination date. When this Agreement expires or terminates, Time Doctor shall cease providing the Software Subscription to Customer.

If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately; (ii) if termination is by Customer pursuant to Section 9.2, Time Doctor will work with Customer in good faith to develop a joint plan for the transition of Customer’s Data and Documents to Customer; provided Customer agrees to use best efforts to remove Customer Data as expeditiously as commercially feasible.  Data will be transitioned to Customer in a mutually agreed upon format.

10. Warranties and Disclaimer of Additional Warranties

10.1 Warranty. For Customers enrolled in any form of Software Subscription requiring payment of Fees, Time Doctor represents and warrants that it will not knowingly include, in the Software Subscription released to Users and provided to Customer hereunder, any computer code or other computer instructions, devices, or techniques, including without limitation those known as viruses, disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program, or computer system or any component thereof, including its security or Customer Data. If, at any time, Time Doctor fails to comply with the warranty in this Section 10.1, Customer may promptly notify Time Doctor in writing of any such noncompliance. Time Doctor will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable correction plan is not established during such period, Customer may terminate this Agreement and receive a refund of any prepaid but unearned subscription Fees, prorated on a monthly basis, as its sole and exclusive remedy for such noncompliance. 

10.2 Disclaimer. EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION 10, THE SOFTWARE, SOFTWARE SUBSCRIPTION AND TIME DOCTOR CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. TIME DOCTOR HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.

10.3 Legal Authority. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) its performance of this Agreement will not conflict with any obligations it has to third parties.

11. Limitation of Liability

11.1 Exceptions to Limitations. NOTHING IN THIS AGREEMENT (OR ANY ORDER FORM) SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; (III) ITS INDEMNIFICATION OBLIGATIONS; (IV) BREACH OF SECTION 3 “RESTRICTIONS,” SECTION 4 “PAYMENT OF FEES,” OR SECTION 6 “INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP;” OR (V) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

11.2 Limitation on Direct and Indirect Liability. SUBJECT TO SECTION 11.1, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY (OR ANY PERSON CLAIMING THROUGH SUCH PARTY) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOFTWARE SUBSCRIPTION OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT; THE DELAY OR INABILITY TO USE THE SOFTWARE SUBSCRIPTION OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, (I) LOSS OF REVENUE OR ANTICIPATED PROFITS (WHETHER DIRECT OR INDIRECT) OR (II) LOST BUSINESS; OR (III) LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY), BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

11.3 Limitation on Liability Amount. SUBJECT TO SECTION 11.1, THE MAXIMUM LIABILITY OF EITHER PARTY OR ITS SUPPLIERS FOR ANY AND ALL CLAIMS UNDER AN APPLICABLE ORDER FORM, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID OR TO BE PAID TO TIME DOCTOR UNDER SUCH ORDER FORM DURING THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT SUCH CLAIM IS FIRST ASSERTED. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. Government Matters

12.1 Export. Notwithstanding anything else in this Agreement, Customer may not use, or provide to any person or export or re-export or allow the export or re-export of the Software Subscription or anything related thereto or any direct product thereof, in violation of any restrictions, laws, or regulations of the U.S. Department of Commerce, the U.S. Department of the Treasury Office of Foreign Assets Control, or any other U.S. or foreign agency or authority. Each party represents that it is not named on any U.S. government denied-party list. Customer and Users shall not access or use the Software Subscription in a U.S. embargoed country.

12.2 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Time Doctor employee or agent in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will promptly notify Time Doctor.

12.3 Commercial Software. The Software Subscription (including the Software) are “commercial items” as that term is defined at FAR 2.101. If acquired by or on behalf of any Executive Agency other than an agency within the U.S. Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data—Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. This Section 12.3 is in lieu of, and supersedes, any other FAR, DFARS, DEAR, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement. Capitalized terms used in this Section are defined in the applicable FAR or DFARs.

13. Miscellaneous

13.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

13.2 Assignment. This Agreement is not assignable, transferable, or sublicensable by Customer except with Time Doctor’s prior written consent, which shall not be unreasonably withheld. Time Doctor may transfer and assign any of its rights and obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.

13.3 No Third-Party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement. No entities other than Time Doctor and Customer may terminate, rescind, or agree to any modification, waiver, or settlement with respect to this Agreement.

13.4 Entire Agreement; Addendums. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers, amendments, and modifications must be in writing signed by the party against whom the waiver, amendment, or modification is to be enforced. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Time Doctor in any respect whatsoever.

13.5 Changes to Agreement. To the extent that any conflict or inconsistency arises between the provisions in this Agreement, any Order Form or the Documentation, the terms of this Agreement shall prevail. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein, and supersedes all prior discussions and agreements, whether written or oral, with respect to such subject matter.

Notwithstanding anything to the contrary in this Agreement, from time to time, Time Doctor may modify this Agreement with ten (10) days' notice to Customer. Unless otherwise specified by Time Doctor, changes become effective for Customer upon posting of the modified Agreement. If Customer does not agree to such changes, Customer must notify Time Doctor of such disagreement within the ten (10) day notice period, and Time Doctor (at its option and as Customer's exclusive remedy) may either: (i) permit Customer to continue under the prior version of this Agreement until the next renewal of the current Order Form, after which the modified Agreement will apply, or (ii) terminate this Agreement and provide to Customer a refund of any Fees that Customer already paid with respect to the terminated portion of the applicable Order Form. Time Doctor will use reasonable efforts to notify Customer of the changes through Customer's account, email, or other means. Customer may be required to click to accept the modified Agreement before using the Software Subscription in a renewal Term, and in any event continued use of the Software Subscription during the renewal Term will constitute Customer's acceptance of the version of the Agreement in effect at the time the renewal Term begins.

13.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Time Doctor may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://www.timedoctor.com.

13.7 Force Majeure. Any delay or failure in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay or failure is due to a labor dispute, fire, earthquake, flood, or any other event beyond the reasonable control of a party, provided that such party promptly notifies the other Party thereof and uses reasonable efforts to resume performance as soon as possible.

13.8 Governing Law; Venue. This Agreement will be governed by the laws of the State of Texas, U.S.A. without regard to its conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Travis County, Texas, U.S.A. and each Party hereby submits to the exclusive jurisdiction of such courts. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.

13.9 Prevailing Party. In any arbitration, action, or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

13.10 Counterparts. This Agreement may be executed in counterparts (including execution by electronic signature, pdf or other electronic transmission), each of which will be deemed an original and legally binding and all of which together will be considered one and the same agreement.

13.11No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.