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HomeMy Public PortalAboutAgreement - Perform Time Clocks - 0Q06S000004C9urAttachment A Time Clocks; Time Services. Client may purchase or rent time clocks (“Clocks”) from Paycor in order to facilitate Client’s tracking of employee time. In conjunction with the purchase or rental of Clocks, Paycor or a Third-Party Provider shall provide Client with such time services as Client may request from time to time pursuant to an Order (“Time Services”). Rented Clocks. This Section applies only if Client has agreed to rent Clocks from Paycor pursuant to any Order (“Rented Clocks”). (a) Payment; Billing. Rental payments for Rented Clocks shall be due monthly on the date and in the amount set forth on the applicable Order. (b) Rental Term. “Rental Term” shall mean the period that Client is receiving Time Services. (c) Termination; Security Charge. If Time Services are terminated by Client or Paycor, Client shall be charged and debited for the price of a new clock (the “Security Charge”) for all Rented Clocks in Client’s possession as of the date such Time Services are terminated (the “Termination Date”). However, for each Rented Clock that Client returns to Paycor (i) within thirty (30) days of the Termination Date and (ii) in good condition, reasonable wear and tear excepted, Paycor will refund the Security Charge. (d) Lost or Damaged Clocks. If any Rented Clock is lost or damaged due to Client’s negligent, reckless, or intentional act, Client shall be responsible for the cost of the repair, up to the then-current replacement value of the lost or damaged Clock. (e) Client shall keep the Rented Clocks at all times free and clear of all claims, levies, liens, encumbrances and process, and shall not pledge, lend, create a security interest in, or attempt in any manner to dispose of, the Rented Clocks or any part thereof. Client shall give Paycor prompt notice of any attachment or other judicial process affecting any part of a Rented Clock. (f) Unless otherwise set forth in the applicable Order, all subscriptions for Time Services shall begin (and shall be invoiced from) the first day of the month in which the Rented Clock is shipped to Client (unless that Rented Clock has been returned) regardless of when in the month those Rented Clock(s) are ordered and shipped to Client. Purchased Clocks. This Section applies only if Client has agreed to purchase Clocks from Paycor pursuant to any Order (“Purchased Clocks”). (a) Payment; Billing. The purchase price for the Purchased Clocks is the amount set forth on the Order, which amount is due and payable prior to Client’s taking possession of the Purchased Clocks. (b) Clock Returns. Client may return certain Purchased Clocks to Paycor within thirty (30) days of Client’s receipt of such Clocks, and if the Purchased Clock is unopened and still in original packaging (including the back plate and power cord) Paycor will refund the full purchase price of such Purchased Clock to Client. If such returned Purchased Clock is returned open and not in its original packaging or is missing components but is in like-new condition, as determined by Paycor in Paycor’s sole discretion, Paycor will refund the full purchase price of such Clock to Client less the restocking fee. Paycor shall pay any refund due to Client within sixty (60) days of Paycor’s receipt of such returned Purchased Clock. In all cases, shipping and transportation costs and charges for any returned Purchased Clocks shall be paid by Client. (c) Remedy. Client’s remedy for breach of the Clock Warranty (as such term is defined below) is expressly limited to repair or replacement of the defective Clock with a Clock of similar functionality in good working condition. Any Purchased Clock which, under normal use and service, is proven to breach the warranty described in this Section will, upon examination by Paycor, and at Paycor’s option, be repaired or replaced with a similar Clock by Paycor. Paycor reserves the right to replace any Clock with a used or refurbished Clock. (d) Subject to the manufacturer’s ownership of any intellectual property rights it may have in a Purchased Clocks, title to the Purchased Clocks shall pass to the Client when Paycor has received full payment for the Purchased Clocks. Use by Client. Client hereby agrees to (a) not use the Clocks except as part of Paycor’s applications; (b) not modify, reverse engineer, reverse compile, or disassemble the object code for the Clocks; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Clocks, and notify Paycor immediately of any such unauthorized access or use, (d) sell, resell, rent or lease the Clocks to any other third parties, (e) not use the Clocks to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (f) not interfere with or disrupt the integrity or performance of the Clocks or third-party data contained therein, (g) not attempt to gain unauthorized access to the Clock software, hardware or its related systems or networks, (h) not remove any proprietary notices, labels, or marks from the Clocks; (i) frame or mirror any content forming part of the software or services; or (j) access the Clocks in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Clocks. Acceptance of Delivery. Client shall give Paycor written notice of damage to or issues with any Clock within five (5) days after delivery thereof. Installation of Clocks. Client shall install, maintain and use the Clocks at Client’s location(s), and shall arrange for network and Internet connectivity at the locations. Upon Paycor’s request, the Client will provide a list of all Clock location(s) and Clocks installed at each such location. Maintenance. Paycor, at its cost, will be responsible for maintaining the Clocks during the period of time that Client subscribes to Time Services (in the case of Rental Clocks, during the Rental Term). Maintenance of Clocks includes (i) repairing any defective Clock, and (ii) if Paycor determines that a Clock cannot be reasonably repaired, replacing such Clock with a comparable Clock. In the case of maintenance related to a Purchased Clock, Client may be charged a fee for examination of such Clock. Any Rented Clock and Purchased Clock that is eligible for replacement services shall collective and individually be considered a “Covered Device”. In the event that any of the Covered Devices no longer functions properly, Paycor shall replace the non-functioning Covered Device. If Client provides Paycor with notice of use of these replacement services, Paycor will ship (via overnight courier) a replacement of the equivalent Covered Device with the same fitted accessories for the non-functioning Covered Device to the Client at a delivery location specified by the Client. Thereafter, Client (if asked to do so by Paycor) shall return such Covered Device to Paycor’s place of business within ten (10) days of request of Paycor. Any replacement clock shall be shipped with a pre-paid return shipping label. Replacement devices may be new or refurbished units, as determined by Paycor. If not so returned, Paycor may assess a charge for the replacement Covered Device equal to the purchase price. Paycor reserves the right to charge Client the full cost of any repairs and/or the replacement devices if: (i) the non-functioning Covered Device is not returned within ten (10) days of Paycor’s written request to return the Covered Device; (ii) Paycor reasonably concludes that a defect or damage to the Covered Device occurred because Client failed to follow Paycor’s instructions as to the storage, installation, commissioning, use or maintenance of the Covered Device or good trade practice, (iii) Paycor reasonably concludes that Client altered or repaired or attempted to alter or repair the Covered Device without the written consent of Paycor; or (iv) Paycor reasonably concludes that a defect or damage occurred as a result of Client’s willful damage, negligence, improper installation, misuse or abnormal working conditions. Warranties. (a) Paycor Warranties. Paycor warrants that the Clocks will be of good material workmanship and will be free of defects if properly installed and operated (the “Clock Warranty”). In the case of Rented Clocks, such Clocks are covered under the Clock Warranty during the Rental Term. In the case of Purchased Clocks, Paycor agrees to pass through to the Client any warranties it receives from the manufacturer with respect to any Purchased Clocks (the “Purchased Clock Warranty”). Paycor further warrants that the Clocks shall perform materially in accordance with the documentation. (b) Client Warranties. Client represents, covenants and warrants (i) that it has the right to disclose and provide to Paycor any data collected by Client and its users through the use of the Clocks, (ii) that Client’s use, distribution, marketing, dissemination, and/or provision of the Clocks will comply with all applicable federal, state and local laws, rules and regulations, (iii) that the Client will not use, nor knowingly permit its users, or other third parties, to access, use, make available, provide, distribute, or disseminate all or any portion of the Clock software or hardware in any manner which would violate the terms of these Terms or any applicable federal, state or local laws, rules, or regulations, (iv) that the Client’s use and distribution of the Clocks will comply with the terms of any third party product agreements included with the Clocks and (v) that the Client has or shall obtain and maintain all necessary licenses, permissions and consents which may be required for the Clocks hardware and/or software before installing the Clocks. (c) Disclaimer of Warranties. THE CLOCK WARRANTY AND PURCHASED CLOCK WARRANTY ARE EXPRESSLY IN LIEU OF ALL WARRANTIES, EXPRESSED OR IMPLIED, AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON-INFRINGEMENT, NON-INTERRUPTION OF USE, AND FREEDOM OF ERRORS. IN NO EVENT SHALL PAYCOR BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR OTHER DAMAGES OF ANY SORT. IN NO EVENT WILL PAYCOR’S CUMULATIVE LIABILITY EXCEED THE REPLACEMENT VALUE OF THE CLOCKS (IN THE CASE OF RENTED CLOCKS) OR THE PURCHASE PRICE OF THE CLOCK AS SET FORTH ON THE APPLICABLE ORDER (IN THE CASE OF PURCHASED CLOCKS). The Clock Warranty and Purchased Clock Warranty shall not be deemed as breached for any Clocks that have been (i) damaged, tampered with, abused, improperly installed, or damaged in shipping, or (ii) repaired or altered by any person other than an authorized Paycor representative. Liability for Damage. Client shall bear the entire risk of loss and shall be responsible for any loss of or damage to any Clock not covered under the Clock Warranty or Purchased Clock Warranty (“Non-covered Device”). In the event of loss or damage of any kind to all or any portion of the Non-covered Device(s), Client shall notify Paycor and, at Paycor’s option, Paycor shall: (a) place the same in good repair, condition and working order; (b) replace the same with like equipment in good repair, condition and working order, and furnish Paycor with the necessary documents to vest in Paycor the same title which Paycor now possesses in the Non-covered Device(s); or (c) if the Partner determines that the Non- covered Device(s) is or are beyond repair, pay to Paycor the value of so much of the Non-covered Device(s), or any part thereof, as may be damaged or destroyed, which value shall conclusively be presumed to be the amount of the remaining rental fee payments due for the balance of the term applicable to such Non-covered Devices. Indemnification. Client shall indemnify and hold Paycor harmless from and against any loss, liability, cost, damage, expense, or claim arising from Client’s use of the Clock(s). Effect of Termination. Upon expiration or termination of the Agreement, the Client shall cease using the Rented Clock and associated Time Services (provided in connection with a Rented Clock or Purchased Clock) and within thirty (30) days of Paycor’s request, Client will return all Rented Clocks to such address within the United States that Paycor may direct. Client agrees to pay reasonable replacement charges as invoiced by Paycor for any Rented Clocks not returned to Paycor within such timeframe.