ScheduleOnce Master Service Agreement

Simply put

Simply put

The explanatory paragraphs in the grey boxes are meant to help you understand this agreement, but are not legally binding in any way. The wording of the agreement solely governs our rights and obligations to you, and your rights and obligations to us.

Simply put

The explanatory paragraphs in the grey boxes are meant to help you understand this agreement, but are not legally binding in any way. The wording of the agreement solely governs our rights and obligations to you, and your rights and obligations to us.

Last updated: June 22, 2017

This ScheduleOnce Master Service Agreement (the “Agreement”) is entered into by and between you (the “Client”), and ScheduleOnce LLC, located at 340 S. Lemon Ave. #5585, Walnut, CA 91789 (“ScheduleOnce”). ScheduleOnce and the Client may be individually referred to as a “Party” and collectively referred to as the “Parties”. This Agreement governs the Client’s acquisition and use of the Service. To the extent there is a conflict between language of this Agreement and the language of the Order Form, the language of the Order Form shall prevail.

This Agreement shall be effective on the date of your acceptance (as defined below) of this Agreement (the “Effective Date”).

BY ACCEPTING THIS AGREEMENT, EITHER BY (I) CLICKING A BOX INDICATING YOUR ACCEPTANCE; OR (II) BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (III) BY DIGITIALLY OR MANUALLY SIGNING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CLIENT” OR “CLIENTS” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.

Simply put

The explanatory paragraphs in the grey boxes are meant to help you understand this agreement, but are not legally binding in any way. The wording of the agreement solely governs our rights and obligations to you, and your rights and obligations to us.

By signing this agreement or checking an agree box, you are agreeing to abide by the full terms of the legal agreement. This holds true regardless of whether you read the agreement or not.

  1. 1.Definitions

    1. Except to the extent expressly provided otherwise herein, the following definitions shall apply in the Agreement and any applicable Order Form:

      • “Affiliate(s)” means any entity that directly or indirectly controls, 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 fifty percent (50%) of the voting interests of the subject entity.
      • “Trusted Vendor” means a vendor assessed, approved, and engaged by ScheduleOnce who can competently provide services to ScheduleOnce and be trusted with access to limited Client Data as necessary in order to fulfil one or more specific functions within the Services. Trusted Vendors are approved on a case-by-case basis, are obligated to comply with industry-standard security frameworks or pass a security evaluation, and agree to confidentiality covenants no less restrictive than those contained in this Agreement. Trusted Vendors may be located in countries outside of the United States, including countries which the European Commission has not found to provide an adequate level of data protection in national law.
      • “Confidential Information” means any information or material that is disclosed by a Party to the other Party, and which is identified, either verbally or in written form, as “confidential” or “proprietary” or which, given the nature of the information or material, should reasonably be understood to be confidential or proprietary, including but not limited to all information (appearing in whatever medium) relating to business plans, sales and marketing methods, customers and customer lists, personally identifying information, data, designs, financial information, forecasts, inventions, know-how, methods, market analysis, patents, pricing, products, prerelease offerings, procedures, programs, research and development, security policies and processes, source and object code, strategies and other works of authorship of the Disclosing Party. The party disclosing Confidential Information is the “Disclosing Party” and the party receiving Confidential Information is the “Receiving Party”.
      • “Connector(s)” means ScheduleOnce proprietary computer software applications that are hosted by ScheduleOnce or are downloaded by the Client or its Users, and allow connection between non-ScheduleOnce software applications and the Service. Some Connectors are free “plug-ins” and others are fee-based.
      • “Content” means any information, data or features provided by ScheduleOnce which is contained within or provisioned with the Service.
      • “Client Data” means any information, data or material that is submitted to the Client’s Subscription by any non-ScheduleOnce party during the term of this Agreement.
      • “Effective Date” means the date on which the Client accepts this Agreement by one of the methods of acceptance defined in the introduction hereto, thereby evidencing its agreement with the terms and conditions herein, and the date upon which this Agreement goes into legal effect between the Parties.
      • “Force Majeure Event” means an event or series of related events, that is outside the reasonable control of the Party affected and includes, but is not limited to, internet failures, failures of any public communications network, hacker attacks, denial of service attacks, virus or malicious software attacks/infections, power failures, industrial disputes, changes in law, disasters (either man-made or natural), explosions, fires, riots, terrorist attacks, wars, and any governmental interference (whether legal or not).
      • “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, arising from common law or statute, including any application or right of application for such rights, including copyrights, trademarks, trade secrets, know-how, patents, database rights, trade names, service marks, unfair competition rights, and confidential information rights.
      • “Malicious Code” means computer code, files, scripts, agents, or programs designed to do harm, or to use the application in a way that was not intended, including, for example, viruses, worms, time bombs, Trojan horses, and the like.
      • “Order Form” means the additional terms of the Subscription(s) not already included in this Agreement, such as delivery fees, charges, contact representatives and the like, which shall be attached in a form substantially similar to the one attached hereto as Exhibit A and which is incorporated herein by this reference, or the online order receipt that Client would receive when placing an order through a ScheduleOnce application. When a Party enters into this Order Form and/or this Agreement, it agrees, for itself and its Affiliates to be bound to the terms herein as if they were original Parties hereto.
      • “Service(s)” means any one or more software applications that ScheduleOnce provides to the Client or has an obligation to provide to the Client, under this Agreement or any applicable Order Form and pursuant to the terms of the Client’s Subscription(s) set forth therein.
      • “Subscription” means the license, as defined in Section 2.1 of this Agreement, that ScheduleOnce grants to the Client to (i) use a specific set and number of features of the Service(s) (the “Subscription Plan”); for (ii) a specific period of time (the “Subscription Period”); (iii) by a specified number of Users; and (iv) for a fee determined in accordance with Section 9 of this Agreement. The Subscription Plan, the Subscription Period, the number and type of Users, and the amount and terms of the fee referenced in this Section 1.1(l) shall be set forth in the attached Order Form(s), which are incorporated herein by reference. Hereinafter, any use of the term “Subscription(s)” shall include in its meaning the terms, conditions, and privileges associated with Client’s use of the Service.
      • “User” means one individual person who is authorized by the Client to use the Service, under the terms of the Client’s Subscription, and to whom the Client has supplied a User Account. Such Users may be employees, contractors, consultants, agents, or other third parties.
      • “User Account” means (i) the user identification, password, and any associated software user data and profile the Client provides to a User and (ii) the accompanying authority to access and use the Client’s Subscription. Each User Account shall be associated with no more than one (1) User.
  2. 2.ScheduleOnce Responsibilities

    1. Subject to the terms and conditions of this Agreement, ScheduleOnce agrees (i) to provide the Service to the Client and grants to the Client a limited, non-exclusive, non-transferrable, non-sublicensable, revocable, worldwide license to use the Service, according to the terms and conditions of all included Subscriptions, solely for the Client’s own business purposes; and (ii) to provide to the Client commercially reasonable technical support via telephone and email As defined in the Client’s Subscription Plan.

    2. All rights not expressly granted herein to the Client are reserved by ScheduleOnce.

  3. 3.Client Responsibilities

    1. The Client is responsible for all activity occurring during the Client’s use of the Service, including that of its Users. All such activity must comply with all terms of this Agreement and any applicable Order Form and any applicable local, state, national and international laws, regulations and treaties (collectively “Laws”) governing the Client’s use of the Service, including all applicable Laws relating to export restrictions, data privacy, international communications and transmission of technical or personal data. The Client shall: (i) use reasonable efforts to prevent unauthorized access or use of the Service, including the use of associated User Accounts, by employees, Users, and any third parties; (ii) use the Service and Content only in accordance with this Agreement and all attached or incorporated Order Forms; (iii) notify ScheduleOnce within twenty-four (24) hours of any unauthorized use or any other known or suspected breach of security pertaining to the Service or the Content; and (iv) use reasonable efforts to immediately stop any copying or distribution of Content that is known or suspected by the Client, its employees, third parties or its Users.

    2. The Client shall not (i) sell, resell, transfer, sublicense, or assign the license granted to it by ScheduleOnce under this Agreement (except pursuant to a permitted assignment wherein ScheduleOnce expressly agrees in writing to the Client’s assignment of this Agreement); (ii) distribute or otherwise commercially exploit or make available to any third party the Service or Content, in whole or in part, in any way; (iii) modify or make derivative works based upon the Service or the Content; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions, or graphics of the Service, or (c) copy any ideas, features, functions, or graphics of the Service.

    3. If the Client signs up for a free trial Subscription to the Service, the Client must convert the free trial Subscription to a paid Subscription within fourteen (14) days of the start of the free trial Subscription, or the Client’s access to the Service will be suspended. The Client will then have ninety (90) days in which to convert the suspended free trial Subscription to a paid Subscription. After that period, ScheduleOnce reserves the right to permanently delete the Client’s free trial account in the Service and any Client Data contained therein. ScheduleOnce reserves the right to terminate the Client’s free trial Subscription at any time and for any reason, in its sole discretion. The Client may not sign up for multiple free trial Subscriptions in a manner that is deemed by ScheduleOnce, in its sole discretion, to be abusive or contrary to the intention of any such offer.

    4. The Client is restricted from doing any act to interfere with the normal operation of the Service or the Content, including but not limited to: (i) denial of service attacks; (ii) vulnerability scanning; (iii) port scanning; (iv) penetration testing and attempts; (v) anything illegal under applicable Laws; and (vi) use or transmission of any Malicious Code.

  4. 4.ScheduleOnce Connectors

    ScheduleOnce either owns all right, title, and interest in and to the Connectors, or it may license the rights. Some Connectors, in the sole discretion of ScheduleOnce, are offered free of charge to the Client and some Connectors must be licensed by the Client as add-on services under the Subscription, for an additional fee.

    The Client acknowledges and agrees that ScheduleOnce, simply by virtue of the Client licensing or using a ScheduleOnce Connector, does not make ScheduleOnce a party to any relationship among the Client, its Users, and the entity providing any such third-party software application with which the Connector interoperates. Any claim brought pursuant to such relationship will fall under the right of ScheduleOnce to be indemnified by the Client for any claim brought by a third party in accordance with Section 17 of this Agreement.

    By using a Connector, the Client instructs and grants permission to ScheduleOnce to allow the entity providing any such third-party software application with which the Connector interoperates to access Client Data as required for the interoperation of such third-party software application with the Service. ScheduleOnce is not responsible for any disclosure, modification, deletion, or other processing of Client Data resulting from access by the entity providing such third-party software application.

  5. 5.Data Protection

    1. ScheduleOnce agrees to implement and maintain appropriate and commercially reasonable technical, physical, and administrative security controls reasonably designed to protect the confidentiality, integrity and availability of Client Data.

    2. If ScheduleOnce becomes aware of any actual unlawful or unauthorized loss, disclosure, alteration of, or access to Client Data processed in the Service (each a “Security Incident”), ScheduleOnce will promptly notify the Client of each Security Incident and take reasonable steps to mitigate the effects of the Security Incident(s).

    3. If the Client is a Covered Entity or Business Associate (as defined generally in The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and specifically at 45 CFR 160.103), the Client and its Users are prohibited from processing PHI (as defined in the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164) in or through the Service and the Content unless the Client has completely and properly executed the ScheduleOnce Business Associate Agreement Addendum and complies with its terms.

    4. If applicable Laws require, or if the Client transmits Client Data to ScheduleOnce on the basis of ScheduleOnce’s participation in the EU-U.S. Privacy Shield Program, U.S.-Swiss Safe Harbor Program or Swiss-U.S. Privacy Shield Program (collectively “the Frameworks”), if any, the Client agrees to make an assessment of its data security risks and enable security controls in the Services as necessary to mitigate its data security risks to a reasonable and appropriate level, in such a way that complies with the applicable Laws and, if applicable, the Frameworks.

    5. The Client agrees that ScheduleOnce may make Client Data available to Trusted Vendors, who are engaged by ScheduleOnce for the specific, limited purpose of helping to provide the Service. Trusted Vendors are bound by data security and privacy covenants no less restrictive than those contained in this Agreement.

    6. ScheduleOnce agrees to promptly notify the Client if ScheduleOnce becomes unable to satisfy its obligations under this Section 5 on Data Protection or Section 6 on Confidentiality.

    7. The Parties agree that ScheduleOnce is a data processor, per the meaning given to such term in the Frameworks, The General Data Protection Regulation of the European Union, and Directive 95/46/EC of the European Union.

  6. 6.Confidentiality

    1. The Receiving Party agrees to hold in confidence and not use or disclose to anyone Confidential Information of the Disclosing Party, except as necessary to carry out the terms of this Agreement, or as expressly authorized by the Disclosing Party in writing, and agrees to limit access to Confidential Information of the Disclosing Party to employees and contractors of the Receiving Party who have signed agreements containing confidentiality and data security protections no less stringent than those herein.
    2. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, the Receiving Party agrees, to the extent allowed by applicable Laws, to give the Disclosing Party prompt notice of the compelled disclosure. The Receiving Party further agrees to give reasonable assistance to the Disclosing Party, to the extent legally permitted, and at the Disclosing Party's expense, in any contest by the Disclosing Party to the compelled disclosure.
    3. Confidential Information does not include information that (i) became publicly known through no fault of the Receiving Party, (ii) was properly and lawfully known to the Receiving Party, without restriction, prior to disclosure by the Disclosing Party, (iii) became properly and lawfully available to the Receiving Party through a third party, or (iv) was independently developed by the Receiving Party.
  7. 7.Ownership and Use of Client Data

    ScheduleOnce does not own Client Data submitted as part of the Service. The Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Client Data, and ScheduleOnce is not responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Client Data. The Client agrees to indemnify and hold ScheduleOnce harmless from any damage, loss, claim, complaint (legal or customer), demand, or cause of action for any issue arising from Client Data deletion, damage, use or misuse, except to the extent that ScheduleOnce is solely responsible for deletion or damage not related in any way to Client's breach of the Agreement.

    The Service enables the Client to download the Client Data during the term of the Subscription in a structured, commonly used, and machine-readable format, by way of the reporting features of the Service. The Client may also download the Client Data from the Service within thirty (30) days of the termination of this Agreement by placing a renewal order for its Subscription. The Client acknowledges and agrees that ScheduleOnce has no obligation to retain Client Data beyond thirty (30) days after termination of this Agreement for any reason. No later than one hundred and eighty (180) days from termination of this Agreement for cause or no cause, ScheduleOnce will delete and remove all Client Data without liability. Upon termination for cause, Client’s right to access or use Client Data and the Service immediately and automatically ceases.

    The Client grants ScheduleOnce the right to aggregate Client Data, in anonymized form, solely for statistical purposes and for improving the functionality and operation of the Service.

  8. 8.Intellectual Property Ownership

    ScheduleOnce solely owns all right, title and interest, including all Intellectual Property Rights, in and to the ScheduleOnce intellectual property, including but not limited to, its technology, the Content, the Service, the platform, the name, the logos, the websites and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Client, the Users or any other party relating to the Service (collectively “ScheduleOnce Property”). This Agreement does not convey any Intellectual Property Rights of ownership to the Client in the ScheduleOnce Property. The Client may not use, copy, reproduce, replicate, distribute, sell, or license, in whole or in part, any part of the ScheduleOnce Property except as expressly set forth in this Agreement.

    The Client shall own all right, title and interest, including Intellectual Property Rights, in and to its technology, products, services, websites, name and logos. This Agreement does not convey any Client Intellectual Property Rights of ownership to ScheduleOnce.

  9. 9.Payment and Fees

    1. The Client shall pay all fees and charges for the agreed-upon Subscription Period, as set forth in the attached Order Form(s), which have been incorporated herein by reference. Payments must be made in advance for the complete Subscription Period, unless otherwise agreed to mutually in writing. ScheduleOnce reserves the right to modify its fees and charges, in its sole discretion, upon thirty (30) days prior written notice to the Client, which notice may be provided by email, sent to the email address provided by the Client. In no event will any increase in fees be more than five percent (5%) in any given year. Any increases in charges (which are not part of fees) will be determined by ScheduleOnce in its sole discretion. All payment obligations are non-cancellable and all amounts paid are non-refundable. The Client is responsible for paying all applicable fees and charges for the entire Subscription Period. The Client remains responsible for paying all such fees and charges whether or not the Service is used and even in the event that this Agreement is terminated by either Party (except in the event of termination by ScheduleOnce for convenience) before the scheduled end of any current applicable Subscription Period. All pricing terms are ScheduleOnce’s Confidential Information.

    2. Unless otherwise provided for in the applicable Order Form(s), the Service and the Content are licensed as Subscriptions for the Subscription Period indicated, whether that is for a month, a single year, or multiple years. The Client may upgrade its Subscription during the Subscription Period, in which case the fee for the upgraded Subscription will be prorated for the remaining portion of the current Subscription Period. The Client may downgrade its Subscription at any time, effective as of the next Subscription Period.

    3. If according to the relevant Order Form, the Client is paying by debit card, credit card, charge card, or PayPal, the Client must provide valid and updated card or PayPal information to ScheduleOnce, as applicable. If the Client provides card or PayPal information to ScheduleOnce, the Client authorizes ScheduleOnce to charge such payment method(s) for all Services listed in the Order Form for the initial Subscription Period and any renewal Subscription Period(s). If the Order Form specifies that payment will be by a method other than a card or PayPal, ScheduleOnce will invoice the Client in advance and otherwise in accordance with the relevant Order Form. The Client agrees to provide and maintain updated email and mailing addresses in order for ScheduleOnce to timely invoice the Client.

    4. The Client understands that the notice required before Client may cancel the Subscription will vary according to the payment method used to pay the Subscription fees, in accordance with the provisions of Section 10, below.

  10. 10.Automatic Renewal, Client Cancellation, and Termination upon Expiration

    This Agreement commences on the Effective Date and continues for the duration of the Subscription Period identified in the Order Form, unless another term is agreed to in writing by both Parties (“Initial Subscription Period”).

    UPON THE EXPIRATION OF THE INITIAL SUBSCRIPTION PERIOD, THE AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS (EACH, A “RENEWAL SUBSCRIPTION PERIOD”) EQUAL IN DURATION TO THE INITIAL SUBSCRIPTION PERIOD.

    Each Renewal Subscription Period will be charged to the Client at the then-current fees (subject to the limitations on increases in fees described in Section 9). The Client may terminate this Agreement, including the Service and all applicable Subscriptions, by notifying ScheduleOnce via the Service, prior to the end of the then-current Subscription Period (whether it be the Initial Subscription Period or a Renewal Subscription Period) that they intend to cancel. Upon termination of this Agreement for any reason, Client’s license to use the Service terminates fully.

    The notice requirements applicable to cancellation by the Client shall vary according to the current method of payment the Client uses to pay the applicable fees and charges required by this Agreement and any attached Order Form(s). In the event the Client pays for their Subscription by a credit, debit, or payment card submitted via the Service, the Client shall provide at least one (1) day advance notice to ScheduleOnce via the self-service Subscription management features of the Service, that it intends to terminate this Agreement. In the event the client pays for their subscription by PayPal payment submitted via the Service, the Client shall provide at least three (3) days advance notice to ScheduleOnce via the self-service Subscription management features of the Service, that it intends to terminate this Agreement. In the event the Client pays for their Subscription by any other method of payment not submitted via the Service, the Client shall provide at least sixty (60) days advance notice to ScheduleOnce via support ticket or email. In such case, the Client is responsible for providing sufficient detail in its request for ScheduleOnce to verify the identity of the Client.

    The Client understands and acknowledges that cancellation of the Service shall have the effect of terminating this Agreement, and that the Client remains responsible for the payment of all applicable Subscription fees for the current Subscription Period.

  11. 11.Non-Payment and Suspension

    In addition to any other rights granted to ScheduleOnce herein, ScheduleOnce reserves the right to suspend or terminate this Agreement and the Client’s access to the Service if the Client’s account is not paid when due. The Client will continue to be charged for the suspended or terminated Subscription until the balance of invoices due and owing is paid in full.

    ScheduleOnce reserves the right to charge a reconnection fee in the event it suspends the Client’s Subscription for any reason. The Client acknowledges and agrees that ScheduleOnce has no obligation to retain Client Data if the Client’s account is more than thirty (30) days delinquent in being paid in full.

  12. 12.Payment Integration

    If the Client elects to utilize the PayPal integration feature(s) of the Service, then the following additional terms shall govern the Client’s use of such feature(s).

    1. Where the Service interoperates with the Client’s PayPal account, ScheduleOnce is not a party to any transaction(s) between PayPal and the Client. ScheduleOnce does not process payment card or other financial data associated with such transaction(s). ScheduleOnce is not responsible for the security of any payment card data submitted to the Service by third parties. The Client can find the PayPal terms of service at: https://www.PayPal.com/webapps/mpp/ua/useragreement-full.

    2. When the Client connects its PayPal account to the Service, the Client will be prompted to allow automatic billing of a one percent (1%) transaction fee for each payment received via the Service. This transaction fee is automatically charged with each payment the Client accepts via the Service and will be recorded as a separate transaction in the Client’s connected PayPal account.

    3. At the beginning of each month, the Client will receive an invoice from ScheduleOnce that summarizes all transaction fees paid during the previous month. All payments received via the Service are subject to the one percent (1%) transaction fee, including those made during a free trial of the Service. Such transaction fees are non-refundable under any circumstance. ScheduleOnce does not charge a transaction fee and does not refund the associated transaction fee for refunds made by the Client via the Service.

  13. 13.SMS Terms and Conditions

    If the Client purchases or uses SMS credits in the Service, then the following additional terms shall govern the Client’s use of such feature(s).

    1. In order for the Client or the Client’s Users to send scheduling notifications via SMS, the Client must purchase SMS credits from ScheduleOnce. Each SMS credit may be used to send one (1) SMS of up to one hundred and sixty (160) characters long. Any SMS notification longer than one hundred and sixty (160) characters will be billed as multiple SMS notifications. ScheduleOnce will make commercially reasonable efforts to ensure successful delivery of every SMS sent from the Service. However, the Client will be debited SMS credit(s) when an SMS is sent, regardless of whether or not it was successfully delivered.
    2. Any cellular subscriber who receives an SMS sent from the Service may be subject to an SMS receipt fee, depending on the arrangement they have with their cellular service provider. The cellular subscriber, not ScheduleOnce, will be solely responsible for such fees.
    3. SMS notifications sent to U.S. phone numbers will be sent from short code 75732. SMS notifications sent to non-U.S. phone numbers may be sent from ScheduleOnce’s short code or other local numbers.
  14. 14.Termination for Cause

    ScheduleOnce may terminate this Agreement upon any breach of this Agreement by the Client including, but not limited to, failure to pay invoices when due. ScheduleOnce, in its sole discretion, may immediately terminate the Client’s access to and use of the Service for such breach and ScheduleOnce has no obligation to retain Client Data beyond thirty (30) days after termination. The Client acknowledges and agrees that ScheduleOnce has the right to delete all Client Data, in its sole discretion, beginning on the thirty-first (31st) day after termination for cause pursuant to this Section 14, and that no liability for such deletion will be incurred by ScheduleOnce.

  15. 15.Termination for Convenience

    ScheduleOnce may, in its sole discretion, terminate this Agreement, at any time, for any or no reason, with thirty (30) days written notice to the Client. Client’s use of the Service shall terminate fully on the thirty-first (31st) day. In the event that ScheduleOnce opts to terminate this Agreement pursuant to this Section 15, ScheduleOnce shall provide a refund to the Client of the fees prepaid by the Client on a pro-rata basis for the remaining period of the then-current term as of the date of the termination.

  16. 16.Representations and Warranties

    Each Party represents and warrants that it has the legal right and authority to enter into this Agreement. ScheduleOnce represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform satisfactorily under normal use and circumstances. The Client represents and warrants that it has not falsely identified itself nor provided false information to gain access to the Service, that its billing information is correct and that it will keep such information up-to-date with ScheduleOnce, and that it will utilize the Service in accordance with all applicable Laws. To the maximum extent provided by applicable Laws, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related Order Form.

    Each Party represents and warrants that (i) its performance hereunder will not violate any agreement or obligation between it and any third party; and (ii) the Service and Content (in the case of ScheduleOnce) and Client Data (in the case of the Client) will not infringe, misappropriate, or violate the intellectual property, privacy or publicity rights of any third party.

  17. 17.Mutual Indemnification

    1. The Client shall indemnify and hold ScheduleOnce and its parent organizations, Affiliates, subsidiaries, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorney’s fees and costs such as expert witness costs, witness costs and the like) arising out of, or in connection with (i) claims alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a claim which, if true, would constitute a violation by the Client of the Client’s representations and warranties above, or (iii) a claim arising from the breach by the Client or the Client’s users of this Agreement, provided in any such case that ScheduleOnce (a) gives written notice of the claim promptly to the Client; (b) gives the Client sole control of the defense and settlement of the claim (provided that the Client may not settle or defend any claim unless the Client unconditionally releases ScheduleOnce of all liability without requirement of any type of payment and such settlement does not affect ScheduleOnce’s business or Service); (c) provides to the Client all available information and reasonable assistance; and (d) has not compromised or settled such claim.
    2. ScheduleOnce shall indemnify and hold the Client and the Client’s parent organizations, subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages losses, liabilities and expenses (including reasonable attorney’s fees and costs) arising out of, or in connection with (i) claims alleging that the Service directly infringes a copyright, a patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim which, if true, would constitute a violation by ScheduleOnce of ScheduleOnce’s Representations and Warranties above; or (iii) a claim arising from breach of this Agreement by ScheduleOnce, provided that the Client (a) promptly gives written notice of the claim to ScheduleOnce; (b) gives ScheduleOnce sole control of the defense and settlement of the claim (provided that ScheduleOnce may not settle or defend any claim unless ScheduleOnce unconditionally releases the Client of all liability without requirement of any type of payment and such settlement does not affect the Client’s business); (c) provides to ScheduleOnce all available information and reasonable assistance; and (d) has not compromised or settled such claim. ScheduleOnce shall have no obligation of indemnification and the Client shall indemnify ScheduleOnce pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of the Client’s products, services, hardware or business processes.
  18. 18.Disclaimer of Warranties

    EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPLICITLY MADE IN SECTION 16, ABOVE, SCHEDULEONCE MAKES NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SCHEDULEONCE DOES NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, PROCESS OR DATA; (ii) THE SERVICE WILL MEET THE CLIENT’S REQUIREMENTS OR EXPECTATIONS; (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE CLIENT THROUGH THE SERVICE WILL MEET THE CLIENT’S REQUIREMENTS OR EXPECTATIONS; OR (v) ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICE AND ALL CONTENT IS PROVIDED TO THE CLIENT STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SCHEDULEONCE.

    FURTHER, SCHEDULEONCE’S SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SCHEDULEONCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

  19. 19.Limitation of Liability

    IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    THE FOREGOING LIMITATIONS WILL NOT APPLY TO: (i) CLAIMS BY EITHER PARTY FOR BODILY INJURY OR DAMAGE TO REAL PROPERTY OR TANGILBE, PERSONAL PROPERTY FOR WHICH SUCH PARTY AND/OR ITS PERSONNEL ARE LEGALLY RESPONSIBLE; (ii) CLAIMS FOR BREACH OF THE CONFIDENTIALITY PROVISIONS OR INTELLECTUAL PROPERTY PROVISIONS OF THIS AGREEMENT; (iii) OBLIGATIONS TO INDEMNNIFY AS REQUIRED IN THIS AGREEMENT; OR (iv) CLAIMS FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY ONE PARTY AND/OR ITS PERSONNEL AGAINST THE OTHER PARTY.

  20. 20.Force Majeure

    If a Force Majeure Event causes a failure or delay in ScheduleOnce’s performance of any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event. ScheduleOnce will promptly give notice to the Client once it becomes aware of a Force Majeure Event and will inform the Client, to the best of its ability, of the period of time that is estimated that such failure or delay will continue. ScheduleOnce will perform its obligations under the Agreement as soon as is reasonably and commercially practical given the occurrence of the Force Majeure Event.

  21. 21.Assignment/Change in Control

    The Client may not assign this Agreement without the prior written approval of ScheduleOnce, which approval shall not be unreasonably withheld. ScheduleOnce may assign this Agreement without the consent of the Client to (i) a parent or subsidiary; (ii) an acquirer of assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of the Client that results or would result in a direct competitor of ScheduleOnce directly or indirectly owning or controlling fifty percent (50%) or more of the Client shall entitle ScheduleOnce to terminate this Agreement for cause immediately upon written notice.

  22. 22.Governing Law and Dispute Resolution

    1. This Agreement and any and all Order Forms and all matters arising out of or relating to the same shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
    2. Any controversy or claim arising out of or relating to this Agreement or any Order Form shall be resolved by arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect (available at www.adr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be selected within twenty (20) days from commencement of the arbitration from the AAA’s National Roster of Arbitrators pursuant to agreement or through selection procedures administered by the AAA. Within forty-five (45) days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the AAA and adhered to by the Parties. The arbitration shall be held in New York City, New York, and the arbitrator shall apply the substantive law of the State of New York, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. Prior to appointment of the arbitrator or thereafter if he or she is unavailable, emergency relief shall be available from any court to avoid irreparable harm. The arbitrator shall not award either Party damages in excess of or inconsistent with the limitations contained in the “Limitation of Liability” section of this Agreement. The Arbitrator may award reasonable attorney’s fees and costs to the prevailing Party of any arbitration action hereunder.
    3. Prior to commencement of arbitration, the Parties must attempt to mediate their dispute using a professional mediator from AAA, or a like organization selected by agreement or, absent agreement, through selection procedures administered by the AAA. Within a period of forty-five (45) days after the request for mediation, the Parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than forty-five (45) days absent agreement of the Parties or interfere with the availability of emergency relief through any New York court of competent jurisdiction. The costs of mediation shall be borne equally by the Parties.
    4. The arbitration and mediation proceedings shall be confidential and neither Party shall publicize the nature of any dispute or the outcome of any mediation or arbitration proceedings except to the extent required by law, provided in such case the Party required to make any disclosure informs the other Party of such requirement to allow the other Party to seek a protective order. The mediator or arbitrator, as the case may be, shall issue appropriate protective orders to safeguard the Parties’ Confidential Information.
  23. 23.Explanatory Paragraphs

    1. This Agreement may be accompanied by explanatory glosses (the “Explanatory Paragraphs”) that attempt to simplify and summarize the language used herein. These Explanatory Paragraphs may be labeled as “Simply put”. The Explanatory Paragraphs that may be found throughout this Agreement are for reference and administrative purposes only, are not incorporated into this Agreement, and shall not affect the interpretation of this Agreement.
    2. In the event of any conflict between the provisions of this Agreement and the Explanatory Paragraphs, this Agreement shall control.
    3. ScheduleOnce is not a law firm and does not provide legal advice. The Explanatory Paragraphs are not intended as legal advice and should not be relied upon as such by the Client. ScheduleOnce shall not be liable for any damages caused by the Client’s reliance upon the Explanatory Paragraphs or failure to seek appropriate legal assistance before accepting this Agreement.
  24. 24.Miscellaneous

    1. No text or information set forth on any other purchase order, preprinted form, or document (other than an applicable Order Form incorporated by this Agreement, if applicable) shall add to or vary the terms and conditions of this Agreement.

    2. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

    3. ScheduleOnce shall not use the name of the Client for publicity or marketing purposes without the express written consent of the Client.

    4. No joint venture, partnership, employment, or agency relationship exists between the Client and ScheduleOnce as a result of this agreement or use of the Service.

    5. This Agreement may be signed in multiple counterparts, each being part of the original Agreement of the Parties and each signature, whether an original signature or a digital signature shall be evidence of each Party’s intent to be bound by the terms and conditions of this Agreement.

    6. The provisions of this Agreement that, by their sense and context, are intended to survive performance by either or both Parties shall also survive the completion, expiration, termination, or cancellation of this Agreement.

    7. This Agreement, together with any applicable Order Form, comprises the entire agreement between the Client and ScheduleOnce and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

    8. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.