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Schedule Engine
Terms of Service

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Last Updated: June 22, 2022

Section A: General Terms and Conditions

These terms and conditions form part of these Terms of Service between Client and Schedule Engine which governs Client's license and use of the Services of Schedule Engine. Client acknowledges that it may not access or receive the Services if Client is a direct competitor of Schedule Engine.

  1. Definitions and Interpretation.

    1. Defined Terms. The terms listed in this Section A.1.1 shall have the following meanings in these Terms of Service:

"Activate" or "Activation" means the delivery by Schedule Engine to Client of the relevant resources and information necessary to begin providing the applicable Service in accordance with the applicable Section hereof and Documentation. For the avoidance of doubt, Activation following the execution of an updated Service Order to an existing Agreement for the purposes of renewing a Subscription Term shall mean the signature date of such updated Service Order.

"Affiliate(s)" means any entity which directly or indirectly, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. For clarification purposes, the use of the word "Client" in these Terms of Service is inclusive of Client company and its Affiliates, provided Client has the authority to bind such Affiliates to the terms and conditions of these Terms of Service and provided that any use of the Services by such Affiliates are approved in advance by Schedule Engine.

"Agreement" means a master services agreement entered into by Schedule Engine and a Client or Clients party or parties thereto, subject to these Terms of Service and fundamentally for the purposes of the provision of products or performance services by Schedule Engine in accordance therewith and herewith.

"Application Services" means the generally available Web-based, on-line, hosted software listed and selected in the applicable Module 1 to these Terms of Service, including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Schedule Engine.

"Authorized User" means one individual natural person, whether an employee, business partner, contractor, or agent of Client or its Affiliates who is registered by Client to use the Application Services. An Authorized User must be identified by a unique email address and username, and two or more persons may not use the Application Services as the same Authorized User. If the Authorized User is not an employee of Client, use of the Application Services will be allowed only if the user is under confidentiality obligations with Client at least as restrictive as those in this Agreement, is accessing or using the Application Services solely to support Client's and/or Client Affiliates' internal business purposes, and for whom Client will be responsible for ensuring full compliance with the terms of the Agreement.

"Client Content" shall have the meaning set forth in the Data Protection Section hereof..

"Contracted Services" means any services provided by Schedule Engine other than Application Services and may include live support, professional services, Integrations, and any other such services selected in the Service Order in effect hereunder and described in the applicable Section whether provided by Schedule Engine directly or by an Affiliate of Schedule Engine.

"Customer" means any person who uses the Application Services or interacts with user interfaces provided by Schedule Engine or its Affiliates, including but not limited to audio and video, to engage with the Client.

"Documentation" means Schedule Engine's then current guides and manuals published or otherwise made generally available by Schedule Engine for the Services.

"Integration" means, as the context allows, either (a) the established connection between the Application Services and Client's systems for the purposes of providing the Services, or (b) the process of establishing and maintaining such connection.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Metered Service" means an Application Service or a Contracted Service that is provided by Schedule Engine or an Affiliate to Client on a metered basis and for which Client is charged a per-usage fee at the applicable rates for the corresponding billing period.

"Personal Data" shall have the meaning set forth in Data Protection Section.

"Services" means any services provided by Schedule Engine hereunder, including but not limited to the Application Services and/or the Contracted Services.

"Subscription Service" Means an Application Service or a Contracted Service that is provided to Client by Schedule Engine on a subscription basis and priced at a flat, periodic rate.

"Ticket" means the documentation of an interaction between Schedule Engine and individuals over live chat and live phone support communications. A Ticket will contain pertinent details of the communication, including, but not necessarily limited to, a unique identification number, name of individual and a transcript of the communication.

  1. Singular and Plural Forms. Words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular in Section A.1.1 above shall apply to such words when used in the plural where the context so permits and vice versa.

  2. Service Order References. Unless expressly stated otherwise, a reference to a Service Order shall be deemed to mean the latest Service Order document executed by Client and Schedule Engine in connection with these Terms of Service.

  3. Client References: References to Client shall be deemed to mean a party to an Agreement.

  4. Headings. Headings in these Terms of Service are for the convenience of the parties only and shall not constitute a part of these Terms of Service when interpreting or enforcing these Terms of Service.

  1. Grant of License for Application Services / Contracted Services Subscription.

    1. Application Services License. Subject to the terms and conditions of these Terms of Service, Schedule Engine hereby grants to Client a limited, non-exclusive and non-transferable license to, during the Agreement Term, solely for it and its Affiliates' internal business purposes, and in accordance with the Documentation, to: (a) access and use the Application Services via the internet, (b) implement, configure, and permit its Authorized Users to access and use the Application Service solely for its own and its Affiliates internal business purposes; and (c) use the Documentation provided by Schedule Engine. Client will ensure that its Affiliates and all Authorized Users using the Application Services comply with all of Client's obligations under these Terms of Service, and Client is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.

    2. Contracted Services Subscription. Subject to the terms and conditions of these Terms of Service, Schedule Engine hereby agrees to deliver to the Client any Contracted Services selected in the Service Order.

    3. Restrictions. The license and subscription granted in Sections A.2.1 and A.2.2 above are conditioned upon Client's compliance with the terms and conditions of these Terms of Service. Client may use the Services solely for its own internal business purposes, in compliance with applicable law, and shall not: (a) permit any third party to access or receive the Services except as permitted herein, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Services for commercial time sharing, outsourcing or otherwise commercially exploit the Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Services, other than on Client's own intranets or otherwise for its own internal business purposes; (f) access or use the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services; (g) use the Services 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, (h) use the Application Services to store or transmit Malicious Code, (i) interfere with or disrupt the integrity or performance of the Services, or (j) attempt to gain unauthorized access to the Services or their related systems or networks; and (k) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services or Documentation.

    4. Reserved Rights. Schedule Engine hereby reserves all rights in and to the Services and Documentation not expressly granted in these Terms of Service.

  2. Use of Services.

    1. Schedule Engine Responsibilities. Schedule Engine shall use commercially reasonable efforts to maintain the availability of the Application Services and provide the Contracted Services and the Client Content made available via those Services. Schedule Engine shall use commercially reasonable efforts to notify the Client of any Services outages (in advance if such outages are planned) and to correct such outages or any failure of the Services to operate in material conformance with the Documentation.

    2. Client Responsibilities. Client shall be responsible for each Authorized User's compliance with these Terms of Service and be responsible for the Client Content, including but not limited to ensuring compliance with Section A.2.3 (Restrictions) by Client and all Authorized Users. Any conduct by Client that in Schedule Engine's discretion restricts or inhibits any other Schedule Engine customer from using or enjoying the Services, including but not limited to Client's indecent, unworkmanlike or otherwise reprehensible behavior towards Schedule Engine personnel, is expressly prohibited and constitutes a material breach of these Terms of Service. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Schedule Engine promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto.

    3. Suspension of Access. Schedule Engine may suspend any use of Services, or remove or disable the account of any Authorized User or content that Schedule Engine reasonably and in good faith believes violates these Terms of Service. Schedule Engine will use commercially reasonable efforts to notify Client prior to any such suspension or disablement, unless Schedule Engine reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or (b) it is necessary to delay notice in order to prevent imminent harm to Schedule Engine, the Services, or a third party. Under circumstances where notice is delayed, Schedule Engine will provide notice if and when the related restrictions in the previous sentence no longer apply.

  3. Fees.

    1. Payment. Client agrees to pay Schedule Engine fees in accordance with the amounts and periods specified in Service Order. Any payment not received from Client by the due date may accrue, at Schedule Engine's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid. Client also agrees to be responsible for any collection fees, court costs and reasonable attorney fees incurred by Schedule Engine to the greatest extent permitted by law. Client hereby authorizes Schedule Engine to automatically charge the method of payment provided to Schedule Engine for all Services while these Terms of Service remain in effect or until all outstanding amounts hereunder have been paid in full.

    2. Taxes. All Fees and other amounts payable by Client under these Terms of Service are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Schedule Engine's income.

    3. Suspension of Services. If any amount owed by Client is 30 days or more overdue, Schedule Engine may, upon 7 days' prior notice to Client, without limiting its other rights and remedies, suspend Services until such amounts are paid in full. No grace period or prior notice shall be required where payment is late in two consecutive billing cycles. Schedule Engine shall not exercise its rights under this Section A.4.3 if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute. If for any reason the Client account was suspended, the Client may be subject to a $50 processing fee to re-establish their Services in good standing.

  4. Intellectual Property Rights.

    1. General. Schedule Engine, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Unless otherwise specified in these Terms of Service, all deliverables provided by or for Schedule Engine in the performance of Contracted Services, excluding Client Content and Client Confidential Information, are owned by Schedule Engine and constitute part of the Schedule Engine Service(s) under these Terms of Service.

    2. Ownership of Client Content. Client exclusively owns all right, title and interest in and to the Client Content and Client Confidential Information. Schedule Engine shall not be prohibited from retaining and using Client Content and Client Confidential information collected by Schedule Engine in the ordinary course of its collection of data relating to the performance of the Services, provided that any retained information shall remain subject to the provisions of these Terms of Service for so long as it remains in Schedule Engine's possession.

    3. Suggestions. Schedule Engine welcomes feedback from its customers about the Services. If Client (including any Authorized User) provides Schedule Engine with any feedback or suggestions regarding the Services ("Feedback"), Schedule Engine shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to the Feedback and may use or incorporate Feedback into the Services, disclose, reproduce, or otherwise distribute and exploit the Feedback without restriction or any obligation to Client or any Authorized User.

    4. Service Developments. By way of further clarification and not limitation, the parties specifically understand and agree that any benchmarking, business analysis modification, development, improvement (collectively "Developments"), made by or on behalf of Schedule Engine in connection with the Services, whether as a result of Client's use of the Services or otherwise, including, without limitation, any Developments based on Feedback, Client Content and/or Client Confidential Information shall be the sole property of Schedule Engine, provided that any Developments that consist of data or data sets originating from Client Personal Data will include only information that is deidentified such that it does not directly identify Client, any organization, or disclose the Personal Data of any individual.

  5. Confidentiality.

    1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of these Terms of Service (including pricing and other terms reflected in any Section hereunder), Personal Data, the Application Services, business and marketing plans, technology, financial and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

    2. Confidentiality. The Receiving Party shall not disclose, transmit, or otherwise disseminate to a third party any Confidential Information, except as otherwise expressly permitted under these Terms of Service, with the express prior written consent of the disclosing party, or as required by law. The receiving party may disclose the disclosing party's Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors who have a strict need to access the Confidential Information for the purpose of performing these Terms of Service and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in these Terms of Service.

    3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). The disclosure of Confidential Information shall not constitute an express or implied grant or license to Receiving Party of any rights to or under Disclosing Party's patents, copyrights, trade secret rights, trademark rights or any other intellectual property rights.

    4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. In the case of a compelled disclosure, the party from whom disclosure is sought shall disclose only the portion of the Confidential Information that is required to be disclosed and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

    5. Remedies. The Receiving Party acknowledges that the remedy at law for any breach or threatened breach of this Section A.6 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. As a result, in addition to any other remedy the Disclosing Party may have, it shall be entitled (but not required) to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section A.6 by the Receiving Party and to enforce the terms and provisions of this Section A.6 in addition to any other remedy to which the Disclosing Party is entitled at law or in equity Absent written consent of the Disclosing Party to the disclosure, the Receiving Party, in the case of a breach of this Section A.6, has the burden of proving that the Disclosing Party's Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section A.6.

  6. Representations and Warranties.

    1. Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into these Terms of Service, and (b) it will not transmit to the other party any Malicious Code.

    2. Schedule Engine Warranty. Schedule Engine warrants (a) that for sixty (60) days following the implementation of the Application Services, the Application Services will function in substantial conformance to the Documentation, (b) that it shall deliver or perform the Contracted Services in a timely, professional and workmanlike manner in accordance with industry standard practices and standards and using competent personnel having expertise suitable to their assignments and (c) that Services shall conform to the written description set forth or described in the applicable Section. Following this warranty period Schedule Engine shall support the Application Services through its maintenance and support services if purchased by the Client. Schedule Engine does not make any representations or warranties that the functions performed by the Services will meet Client's requirements, that the operation/receipt of the Services will be uninterrupted or error free, or that all defects in the Services will be corrected. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND SCHEDULE ENGINE DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT SCHEDULE ENGINE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, SCHEDULE ENGINE FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. THE DATA IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. No action for breach of the limited warranty set forth in this Section A. 7.2 (Schedule Engine Warranty) may be commenced more than one (1) year following the expiration of the Subscription Term (as defined in the applicable Section hereunder) during which the warranty was first alleged to be breached.

  7. Damages and Limitation of Liability.

    1. Consequential Damages. EXCEPT FOR ANY DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM CLIENT'S BREACH OF ITS OBLIGATIONS IN 3.2 (CLIENT RESPONSIBILITIES), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICES, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    2. Limitation of Liability. To the maximum extent permitted by law and EXCEPT AS DESCRIBED IN SECTION A.8.3, IN ALL EVENTS, SCHEDULE ENGINE'S AGGREGATE LIABILITY TO CLIENT AND ITS AFFILIATES FOR CLAIMS RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF A) THE AMOUNT ACTUALLY PAID BY THE CLIENT FOR THE PARTICULAR SERVICE UNDER WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY OR B) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION A.8 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

    3. Independent Allocations of Risk. Each provision of these Terms of Service that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms of Service between the Parties. This allocation is reflected in the pricing offered by Schedule Engine to Client and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of these Terms of Service, and each of these provisions will apply even if the warranties in these Terms of Service have failed of their essential purpose.

  8. Indemnification. Client shall defend, indemnify and hold harmless Schedule Engine, its Affiliates and their respective officers, directors, employees, customers, agents and representatives (each an "Indemnified Party" and collectively the "Indemnified Parties") from and against any and all claims, losses, injuries, penalties, damages, fines, liabilities, demands, costs and expenses (including without limitation reasonable attorney's fees, and court costs) brought, alleged or imposed by third parties (collectively "Claims") arising out of or relating to: (i) Client's material breach of any obligation, representation or warranty under these Terms of Service; (ii) the negligence or willful misconduct of Client or its personnel, agents or independent contractors; (iii) allegations that the Client Content or use of it by Schedule Engine, or Client's use/receipt of the Services in violation of these Terms of Service, infringes the intellectual property rights of, or has otherwise harmed, a third party; and (iv) the Client's interactions or data sharing with any Client Data Processor (as such term is defined in the Data Protection Section). The foregoing Section A.9.1 is subject to the following terms: the Indemnified Party (a) promptly gives written notice of the Claim to Client (provided that the failure to timely provide such notice shall only limit Client's indemnification obligation to the extent such failure prejudiced Client's defense of the Claim or exacerbated the Claim); (b) allows Client sole control of the defense and settlement of the Claim provided, however, that any settlement requiring the Indemnified Party to admit liability or make any financial payment shall require the Indemnified Party's prior written consent; and (c) provides to Client, at Client's cost, all reasonable assistance.

  9. Access and Monitoring. Schedule Engine may access Client's account and Client Content as necessary to identify or resolve technical problems and to respond to complaints about the Services. Schedule Engine shall also have the right, but not the obligation, to monitor (live or on a recorded basis) all or any portion of the Services to determine Client's compliance with these Terms of Service or otherwise to assess the performance of the Services. Without limiting the foregoing and with two (2) days prior notice, Schedule Engine shall have the right to remove any material submitted to the Services that Schedule Engine finds to be in violation of the terms of these Terms of Service (provided that no prior notice shall be required in the event the material in question is considered by Schedule Engine to be unlawful or infringing on the rights of any third party).

  10. Term and Termination.

    1. Term of Agreement. The term of your Agreement commences on the Effective Date and continues until the Termination Date. As used herein, the "Termination date" means the later of (i) the effective date of a notice provided in accordance with Section A.11.3 below and (ii) the end of the first 365 consecutive day period after which Client last used any of the Services.

    2. Termination. A party may terminate their Agreement for cause (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided in any Section hereof.

    3. Effects of Termination. Upon any expiration or termination of an Agreement, or upon removal or expiration of a selection or request for a Service, the rights and licenses granted hereunder either for such specific Service or all Services, as applicable, will automatically terminate, and Client (or any of its Authorized Users) may not continue to use/receive the Services. If the Agreement is terminated based on Client's uncured material breach, Client shall pay immediately upon termination any unpaid fees and commitments hereunder or under the applicable Section and any fees for the balance of any unused portion of the Subscription Term. Termination of an Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.

  11. Miscellaneous.

    1. General. These Terms of Services as incorporated into an Agreement are intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by an Agreement.

    2. Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of these Terms of Service shall remain in full force and effect.

    3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in whole or in part, upon written notice to the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, these Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    4. Amendments. Schedule Engine reserves the right to unilaterally amend any portion of these Terms of Service in its sole discretion if such amendment is made to (i) comply (to the sole satisfaction of Schedule Engine) with any law, rule or regulation affecting Schedule Engine in effect now or hereafter, (ii) implement a Standards-Driven Modification, or (iii) reflect new or or remove outdated features, functionality or pricing and in accordance with provisions set forth in such Sections. Any such amendment shall be effective immediately. However, and notwithstanding any other provision of these Terms of Service, in the event of a unilateral amendment that adversely, materially and immediately affects Clients obligations or protections hereunder, the Client shall have the right to terminate the Agreement by written notice to Schedule Engine within ten (10) days of the Client's receipt of notice of such amendment. Termination shall not affect any obligation of the Client incurred prior to Schedule Engine's receipt of notice of termination. Other than as set forth herein, any waiver, modification or amendment of any provision of these Terms of Service will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted. As used herein, "Standards-Driven Modification" means a modification to the terms of these Terms of Service or policies that are (or may in the future) be referenced herein or incorporated herein, which Schedule Engine reasonably deems necessary to implement to achieve and maintain compliance certain industry standards such as SOC, ISO, etc.

    5. Entire Agreement; Breach and Waiver. This Agreement, including all exhibits and addenda hereto, constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. To the extent of any conflict or inconsistency between the provisions in the body of these Terms of Service and any exhibit, addendum or Section hereto, the terms of such exhibit, addendum or Section, shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client-provided purchase order or in any other Client order documentation shall be incorporated into or form any part of these Terms of Service, and all such terms shall be null and void.

    6. Force Majeure. Subject to the further provisions of this Section, any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent that such delays or failures are caused by occurrences beyond such party's reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party. The period of excused performance pursuant to the foregoing shall be (and only shall be) the actual period during which such an occurrence continues.

    7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under an Agreement or these Terms of Service will be brought exclusively in the federal or state courts located in Lancaster County, Pennsylvania and the parties hereby consent to personal jurisdiction and venue therein.

    8. Client Reference. Client agrees to permit Schedule Engine to include the Client's name and logo in its marketing and advertising materials to identify Client as a customer of Schedule Engine's.

    9. Survival. The parties' rights and obligations under Sections A.3.2 (Client Responsibilities), A.4 (Fees), A.5 (Intellectual Property Rights), A.6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Mutual Indemnification), and 11 (Term and Termination) shall survive the termination of these Terms of Service for any reason.

    10. Notices. All notices required or contemplated by these Terms of Service shall be in writing (including by email). Notices shall be delivered or mailed to the address or emailed to the addresses identified in this Agreement. Any notice to be given or served hereunder by either party shall be deemed given and received hereunder when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three (3) days after being mailed by certified mail, postage prepaid, to Client or Schedule Engine in accordance with this Section.

Section B: Data Protection

  1. Definitions.

    1. Defined Terms. The terms listed in this Section B.1.1 shall have the following meanings in these Terms of Service:

"Client Content" means all electronic data or information submitted to the Application Services or otherwise by Client, the Client's authorized users or a Customer. It also includes data collected by Schedule Engine customer support agents and logged to the Client administration portal. For the avoidance of doubt, "Client Content" includes all Personal Data of Client's Authorized Users and Customers, to the extent made available to Schedule Engine via or in connection with the Application Services ("Client Personal Data").

"Client Data Processor" means a third party, other than a SE Data Processor, to which the Client chooses to send data through the Client's configuration of the Application Services.

"Personal Data" means personal information about an identifiable individual (including a natural person's name, street address, telephone number, e-mail address, photograph, social security number (for US Citizens), driver's license number passport number (for US Citizens) or customer or account number, or any other piece of information that allows the identification of a natural person, other than their business contact information when used or disclosed for the purpose of contacting such individual in that individual's capacity as an employee or an official of an organization and for no other purpose).

"Privacy Law" means a personal information protection and privacy law applicable protecting the use and disclosure of Client Personal Data.

"SE Data Processor" means a third party which Schedule Engine authorizes to process Client Personal Data on behalf of Schedule Engine.

  1. Other Defined Terms. Unless otherwise defined herein, capitalized terms used in this Data Protection Section shall have the meaning set forth in the applicable Section to these Terms of Service.

  1. Client Content License and Limitations.

    1. Client Content. Client grants to Schedule Engine, its Affiliates and its authorized third party service providers a limited, worldwide, sublicensable, non-exclusive license to host, copy, access, process, transmit, and display Client Content: (a) to maintain, provide, and improve the Services and perform under these Terms of Service; (b) to prevent or address technical, fraud and/or security issues and resolve support requests; (c) to investigate in good faith an allegation the Services have been used by Client or any Authorized User in violation of these Terms of Service; or (d) at Client's direction or request or as permitted in writing by Client. Client retains ownership and interest in all Client Content and warrants that it has all rights and consents and has complied with all procedures necessary to (a) grant to Schedule Engine the limited license under this clause 2.1 and (b) to collect, store, transmit (including offshore to Schedule Engine) and process all Client Content. This Section B.2.1 shall survive termination of an Agreement for any reason.

    2. Client Content for Partner Benefits Sponsor. In addition to the rights and obligations set forth in Section B.2.1 above and Section A.6 (Confidentiality), when indicated that Client has access to partner benefits in Section 3 of the Service Order, Client agrees and acknowledges that in consideration for such partner benefits, Schedule Engine may share with the Partner Sponsor certain Client Content and information deriving from the Services that has been deidentified so as to not contain any Personal Data, and which provides Client performance metrics, including but not limited to (i) number of bookings (ii) bookings by channel, (iii) types of Customer issues or requests, and (iv) breakout of business hours bookings and after hours bookings. As used herein, "Partner Sponsor" means a company or other entity that has contracted with Schedule Engine for preferential pricing to be offered to a Schedule Engine prospective client affiliated with such company or entity.

    3. Privacy. Without limiting the foregoing, the parties understand and agree that Schedule Engine is a 'service provider' to Client within the meaning of the California Consumer Privacy Act ("CCPA"), and that Client additionally requests that Schedule Engine create "deidentified" (as defined by applicable law) data from Client's Personal Data for purposes of processing in connection the activities set forth in Section B.2.1(a) through B.2.1(d) above. The parties understand and agree that all such deidentified data sets will no longer contain Client Personal Data, are a "Development" as defined in Section A.5.4 (Service Developments), and therefore may be retained and processed by Schedule Engine however it elects during and following any expiration or termination of the Agreement. To the extent that Schedule Engine collects, uses, processes or stores any Client Personal Data, Schedule Engine will do so only to the extent necessary for, and for the purposes of, fulfilling its obligations under this Agreement and in accordance with the CCPA or any other applicable Privacy Law.

  2. Parties Obligations and Responsibilities with Respect to Data.

    1. Schedule Engine Responsibilities. Schedule Engine shall use commercially reasonable efforts to implement technical, organizational and physical measures to protect Client Personal Data from misuse, interference, loss and unauthorized use, modification and disclosure in accordance with applicable Privacy Laws. In addition, Schedule Engine shall provide notice to Client of any confirmed data breach (as defined by applicable law) of Client Personal Data maintained by Schedule Engine without undue delay.

    2. Client Responsibilities. Client shall post a privacy notice that, if the Services are provided to the Client in Australia, satisfies the requirements set out in Australian Privacy Principle 5 in Schedule 1 to the Privacy Act 1988 (Cth) or, if the Services are provided to the Client in the United States, is in compliance with the California Online Privacy Protection Act ("CalOPPA") and any other applicable law on its websites and/or any page that hosts or otherwise provides access to the Services, and agrees to process all Client Customer Data, whether collected directly or indirectly through Schedule Engine or any other third party, in compliance with its posted privacy notice and all other applicable Privacy Law for the jurisdiction where the Services are provided.

    3. Client Warranty. Client represents and warrants that it complies with the Privacy Act 1988 (Cth) of Australia (insofar as it is applicable) if the Client is subject to Australian law, and/or CalOPPA, CCPA (insofar as they are applicable) if the Client is subject to United States Law, and all other applicable Privacy Laws, rules or regulations notified to the Client from time to time.

    4. CCAP. Both parties represent that they have read and understand the requirements of the CCPA.

  3. Liability for Client Data Processors. Schedule Engine shall have no liability whatsoever for the actions or inactions of any Client Data Processor and Client acknowledges and agrees that any data the Client chooses to send to a Client Data Processor is solely at the Client's risk.

  4. SE Data Processor List. Schedule Engine will provide Client with a list of its SE Data Processors upon Client's written request. Client agrees and acknowledges that the identity of SE Data Processors and any document containing the identity of such SE Data Processors is Confidential Information as defined in Section A.6 of these Terms of Service, and is subject to Client's compliance with the confidentiality terms of these Terms of Service. Furthermore, Schedule Engine may require in its sole discretion a separate confidentiality agreement with Client as a prior requirement to comply with Schedule Engine's obligations hereunder.

Section C: Subscription Services, Onboarding and Integration Additional Terms

This Section governs the provision of the all Subscription Services provided by Schedule Engine to Client), as well as Subscription Services and Implementations.

  1. Definitions and Interpretation.

    1. Definitions. When used in this Module, the following words and terms shall have the meanings as follows:

"Onboarding Services" means services provided by Schedule Engine personnel for the purposes of (i) scoping the work required to enable Client to use the Services, (ii) configuring, customizing and otherwise implementing the Services and Implementations in accordance with the Documentation, and (iii) providing applicable training and training materials to Authorized Users and other applicable Client personnel.

"Subscription Start Date" means, (i) for Subscription Services not previously available to the Client, the earlier of (1) the number of weeks following the Effective Date indicated in the Service Order as the Maximum Onboarding Period, and (2) 1 week following the Activation of Subscription Services, and (ii) for Services that were available to the Client prior to the execution of an updated Service Order, the first day of the month following the date on which the applicable Service Order was executed and delivered by the parties. Notwithstanding the foregoing, if an alternate Subscription Start Date is indicated in the Service Order, that shall be the Subscription Start Date, and any existing Subscription Term under the Agreement or otherwise existing prior to such alternate Subscription Start Date shall remain in effect until such Subscription Start Date.

"Subscription Term" means the period of consecutive months that Client may use/access or receive from Schedule Engine the applicable Subscription Services, which begins on the Subscription Start Date and ends after the number of months indicated as Subscription Term in the applicable Service Order. Notwithstanding Section C.4 hereof, the Services may automatically deactivate and become non-operational, or Schedule Engine may cease to provide such Services, at the end of the Subscription Term, and Client shall not be entitled to access the Services or receive them unless the Subscription Term is renewed.

"Technician" means a natural person associated with or otherwise performing work for or on behalf of Client for which the Services inform and/or enable a portion or all of such natural person's individual field work schedule on Client's Customer's sites for the purposes of performing jobs on behalf of Client for the benefit of Customer, including but not limited to (a) diagnosing and repairing issues related to the Client's stated trades, (b) performing equipment installations or removals, or (c) otherwise performing jobs for which the Client would normally earn revenue in the ordinary course of business.

  1. Onboarding and Implementation. Schedule Engine will provide Client with Onboarding Services in consideration for the applicable fees set forth in the Service Order in accordance with applicable Documentation, if the Client engages Schedule Engine for, or a selected Service requires such Onboarding Services.

  2. Integration. If requested by Client, Schedule Engine shall facilitate the Integration of the Application Services to the extent outlined in applicable Documentation and subject to the applicable provisions of Section A hereof. Client agrees and acknowledges that third party systems are not Application Services and Schedule Engine is not responsible for the operation, maintenance, functionality and success of the Integration when dependent on performance, configurations or adequacy of third-party systems.

  3. Requirement of Subscription Products. Client may only access any Metered Service if Client has agreed to pay for at least one Subscription Service, regardless of whether Client utilizes any or all of the Subscription Services.

  4. Mandatory Term, Automatic Renewal. The Subscription Term shall be mandatory for Client and automatically renew for the number of months selected in the Service Order as the Subscription Term at the prices listed in the Service Order unless prior to renewal, a Party gives notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term. Notwithstanding the foregoing, Schedule Engine reserves the right to adjust its prices for the subsequent Subscription Term subscription renewals up to 5% upon notice to Client at least (30) days prior to the renewal date.

  5. Early Termination. Client may terminate the Subscription Term upon sixty-days advance written notice of Subscription Term termination, subject to Section C.5 above. Client agrees and acknowledges that (i) Schedule Engine has invested substantial resources in the fulfillment of the Agreement, and (ii) early termination of the Subscription Term results in Schedule Engine's investment in and reliance on the Agreement not being realized to the expectations of Schedule Engine. Accordingly, Client acknowledges that (i) amounts due and owed under this Early Termination provision do not constitute a penalty, (ii) Client shall remain liable for all agreed upon Subscription Fees through the termination of the originally agreed Subscription Term in effect, and (iii) a notice of termination hereunder shall result in accelerated billing of any Subscription fees that may be due and owed to Schedule Engine through the end of the originally agreed Subscription Term.

  6. Technicians Update. Client agrees to notify Schedule Engine within 14 days if the number of Client's Technicians changes in a manner such that Client's Subscription Fees will change in accordance with the Service Order. Failure to do so may result in Schedule Engine's right to (a) back-bill Client for due and unpaid Subscription Fees from the date at which Schedule Engine reasonably believe that Client's Subscription Fees changed due to a change in the number of Technicians, and (b) immediate termination of the Agreement at Schedule Engine's sole discretion.

Section D: Live Services Additional terms

This Section governs the provision of the following Services provided by Schedule Engine to Client: Live Chat, Live Voice and Emergency Escalation (as each is defined below).

  1. Interpretation

    1. Definitions. When used in this Section, the following words and terms shall have the meanings as follows:

"Billable Chat" means a Live Chat that (i) lasts at least 1 minute, and (ii) is not marked as spam at the reasonable discretion of Schedule Engine personnel.

"Billable Minute" means a minute or fraction thereof during which a Schedule Engine agent is engaged in providing Live Voice Services to Client or Client Customers and not engaged in activities not considered billable in accordance herewith and with applicable Documentation.

"Booking" means a segment of time determined by Client and/or Schedule Engine in applicable Documentation and scheduling availability during which Client has availability and is scheduled by Schedule Engine personnel via the Application Services or otherwise to provide services to a given Customer.

"Emergency" means an issue or circumstance communicated by Client's Customer that in Client's determination or Schedule Engine's reasonable discretion requires immediate or high priority attention.

"Escalations" means a Service by which Schedule Engine personnel receive and answer telephone Calls from Client's Customers on behalf of Client during the dates and times agreed upon by Schedule Engine and Client from time to time for the purposes of (i) determining whether Customer is experiencing an Emergency, and (ii) follow Client's Emergency escalation protocols as determined by Schedule Engine and Client in accordance with applicable Documentation.

"Live Chat" means a Service by which Schedule Engine personnel receive and answer electronic messages from Client's Customers on behalf of Client via Application Services available in Client's websites for the purposes of (i) providing limited customer service to Customers in accordance with applicable Documentation, (ii) generating and/or requesting Bookings in Client's dispatch systems or via available Integration or means of communication as set forth in the applicable Documentation.

"Live Voice" means a Service by which Schedule Engine personnel receive and answer telephone Calls from Client's Customers on behalf of Client during the dates and times agreed upon by Schedule Engine and Client from time to time for the purposes of (i) providing limited customer service to Customers in accordance with applicable Documentation, (ii) generating and/or requesting Bookings in Client's dispatch systems or via available Integrations or means of communication as set forth in the applicable Documentation.

  1. Schedule Engine Obligations. Schedule Engine shall provide the Services selected in the Service Order to which this Section refers, provided that Client (i) has requested and/or activated any such Services via the Application Services in accordance with the Documentation, (ii) has provided the required Client Content set forth in applicable Documentation, (iii) has activated the necessary features and services in Client's systems that will allow Schedule Engine to provide the Services in accordance herewith and with applicable Documentation, (iv) has paid all applicable Implementation Fees and (v) is not otherwise in default of any of its payment obligations or other obligations under these Terms of Service.

  2. Fees.

    1. Metered Services. Client acknowledges that all Services which this Section governs are Metered Services. Accordingly, Client will receive a bill following each billing period with detailed information for each activated Service for which Fees were generated in accordance with the Service Order.

    2. Live Voice Wrap-up Time. Each Live Voice call received and answered by Schedule Engine shall include an additional 1.5 Billable Minutes after such call to allow for the applicable Schedule Engine agent to complete the necessary notes for Client's records and finalize the call records.

    3. Tiered billing. If applicable, Metered Services to which this Section refers shall be billed in tiers at the price per measurable unit set forth in the Service Order which corresponds to the number of measurable units that fall within a given tier, for the applicable billing period. By way of example, if a Client's Billable Chat count for a given month is 50 and the first tier covers Billable Chats 1-40 at $10 per Billable Chat, whereas the second tier covers Billable Chats 41-100 at $9 per Billable Chat, Client shall be billed for 40 Billable Chats at $10 each, or $400, plus 10 Billable Chats at $9 each, or $90, and Client's total bill for Live Chat shall equal the sum of $400 plus $90, or $490.