This Premium Subscriber Agreement (the “Subscriber Agreement”) is between TimeHero Inc., a Ontario corporation (“TimeHero”) and the organization agreeing to these terms (“Customer”). This Subscriber Agreement governs Customer’s access to TimeHero’s work management service (the “Service”) and its application and website . When you click “I Agree,” attaching this Subscriber Agreement to a purchase order or similar order form, or using the Service as a paid subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is entering into this Subscriber Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that he has the power and authority required to bind such organization to this Subscriber Agreement.
The Service and Associated Software. Customer and users of the Service under Customer’s account (the “End Users”) may access and use the Services in accordance with this Subscriber Agreement. We may provide downloadable client software applications (the “Software”) for use in connection with the Service. The license being granted to Customer hereunder does not constitute a sale of the Software or any copy thereof, and as between TimeHero and Customer, TimeHero retains all right, title, and interest in the Software. TimeHero will use industry standard technical and organizational security measures in connection with the, processing, transfer and storage of Customer Data that are designed to protect the integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or processing of such Customer Data. The term “Customer Data” shall mean the structured data and any files or attachments submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer and its End Users. TimeHero will use reasonable efforts, consistent with standard industry practices, to ensure that the Service and Software do not contain any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service or Software.
Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users. Customer is responsible for: (i) selecting its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscriber Agreement. TimeHero shall not be held liable for any actions on the part of Customer’s Administrator(s)
End User Conduct Compliance. Customer is responsible for use of the Service by its End Users. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use and disclose the content posted by the End Users on the Service; and (ii) to allow TimeHero to provide the Administrator with access to such End User content. The Customer will promptly notify TimeHero if it becomes aware of any unauthorized access to Customer’s account.
Restrictions. Customer will not: (i) rent, sell, resell or lease the Service to any third party; (ii)use the Service for any purpose where either the use or the failure of the Service might lead to personal injury, death or physical damage; or (iii) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.
Suspension. TimeHero may request that Customer suspend the account of any End User who: (i) violates this Subscriber Agreement (ii) is using the Service in a manner that TimeHero believes is a security risk, disruptive to others’ use of the Service, or liability for TimeHero. If Customer fails to promptly suspend or terminate such End User’s account, TimeHero reserves the right to do so.
Customer’s Use of Third Party Services. TimeHero does not warrant or support any third party service (e.g., a service that utilizes the TimeHero API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
Intellectual Property Rights.
Limited License to Use Customer Content. Customer hereby grants to TimeHero a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display content submitted to the Service by the End Users (the “Customer Content”) for the limited purpose of (i)providing the Service and associated customer support to Customer; (ii) displaying the Customer Content to the End Users; (iii) communicating with Customer (iv) analyzing and improving the Service.
Reservation of Rights. Except as expressly set forth herein, this Subscriber Agreement does not (i) grant TimeHero any rights or interest in or to the Customer Content or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any TimeHero Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
Customer Feedback. TimeHero may incorporate into the Service suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of TimeHero. TimeHero may share and publish aggregate, anonymized data about the use of our Service by our customers.
Customer List. Customer’s name may appear in a list of Customers online and in print and electronic marketing materials.
Fees and Payment Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes TimeHero to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and TimeHero will automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has cancelled the Service prior to its renewal date. TimeHero will revise fee rates for the Service from time to time and will provide notice to the Customer’s designated administrator(s) by email of any changes in fees at least thirty (30) days prior to Customer’s Service renewal date. Customer is responsible for providing complete and accurate billing information to TimeHero. TimeHero can suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes on the service and TimeHero will charge tax and remit when required.
Term and Termination. This Subscriber Agreement will remain in effect until Customer terminates its subscription to the Service or until this Subscriber Agreement is otherwise terminated as provided for herein. Customer may terminate this Subscriber Agreement at any time. In addition, either party may terminate this Subscriber Agreement if: (a) the other party is in material breach and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided.
Confidentiality. During the course of their performance under this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to the Customer, Confidential Information also includes the Customer Content.
Obligations. Except as otherwise expressly permitted under this Services Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. TimeHero may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing TimeHero’s obligations under this Agreement 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 this Agreement. Customer may disclose TimeHero’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
Exclusions. The obligations set forth in Section 7(2) above shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.
By Customer. Customer hereby agrees to indemnify, defend and hold harmless TimeHero, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “TimeHero Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of any claim by a third party against TimeHero or the TimeHero Affiliates regarding: (i) use of or access to the Service by Customer or its End Users in violation of this Subscriber Agreement or our Acceptable Use Policy; or (ii) any data or Customer Content transmitted or received through Customer’s account.
By TimeHero. TimeHero hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates to the extent based on an allegation that the Service or TimeHero’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, U.S. or Canadian patent, or trademark right of the third party. In no event will TimeHero have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by TimHero; (ii) use of any third party app connected using the TimeHero API; or (iii) any content, information, or data provided by Customer, End Users, or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY VIOLATION BY TIMEHERO OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Infringement Claims. If the Service becomes, or in TimeHero’s reasonable judgment is likely to become, the subject of a claim of infringement, then TimeHero may: (i) obtain the right, at TimeHero’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that it is no longer infringing. If TimeHero, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then TimeHero may suspend or terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.
Process. The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defence of any claim; provided, however, that: (i) the indemnified party may join in the defence at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL TimeHero BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL TIMEHERO BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO TIMEHERO HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Hosting of the Service; Export Restrictions. The Service is Canadian owned and operated from facilities within Canada. All customer data is hosted in the United States. TimeHero makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations.
Restrictions and responsibilities
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized with the Services); remove any proprietary notices or labels.
Warranty and disclaimer
TimeHero shall use reasonable efforts consistent with prevailing industry standards to maintain services in a manner which minimizes errors and interruptions in the services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond TimeHero’s reasonable control, but TimeHero shall use reasonable efforts to provide advance notice of any scheduled service disruption. HOWEVER, TIMEHERO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED ”AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Modifications. TimeHero may revise this Subscriber Agreement from time to time by posting the modified version on its website at least thirty (30) business days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or TimeHero’s obligations unless affirmatively agreed to by Customer in advance. If, in TimeHero’s sole and reasonable discretion, the modifications being proposed are material, TimeHero will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Asana’s obligations hereunder, Customer agrees to be bound by such modifications.
Governing Law; Dispute Resolution. This Subscriber Agreement will be governed by the laws of the Province of Ontario without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. Either party may bring suit in the federal or Provincial courts located in Sudbury, Ontario, Canada solely for injunctive relief to stop unauthorized use or abuse of the Service or infringement of intellectual property rights and both TimeHero and Customer agree to personal jurisdiction there. All disputes will be resolved on an individual basis and customer may not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidations with other arbitrators are not allowed under this Subscriber Agreement.
Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
Force Majeure. Except for payment obligations, neither TimeHero nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
Assignment. Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.
Entire Agreement. This Subscriber Agreement, together with any Customer purchase order or order form associated herewith, constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
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