Timekeeping and Swipeclock
Services Schedule
Version 1.0
The terms and conditions of this Service Schedule apply upon your election to utilize the Swipeclock time clock software and related services (the “Swipeclock Services”) in connection with any Payroll and HR Services and are applicable to the provision of those services.
1. Swipeclock Services.
1.1. The Swipeclock Services are web-based services provided by SwipeClock LLC (“Swipeclock”) to assist businesses in managing their workforce. The SP Companies are resellers of the Swipeclock Services. The Swipeclock Services may be subject to additional terms, conditions, restrictions and requirements (collectively, “Additional Terms”), which may be made available on Swipeclock’s website or by other means (for instance, online terms of use, service terms, end user license agreements, privacy policies, and the like), and which may be updated periodically. You agree to be bound by all applicable Additional Terms (provided, that in the event of conflict between the terms of this schedule and any such Additional Terms, the terms of this schedule shall control).
1.2. The Swipeclock Services are made available for your use, and you are the author and owner of all data you produce using the Swipeclock Services. The SP Companies do not claim any ownership of the data and are not responsible, and shall not be required, to collect, capture, obtain, possess, transmit, use, or store information you produce using the Swipeclock Services.
2. Data Verification.
2.1. To the extent you supply timekeeping data to Swipeclock during your use of the Swipeclock Services, you are responsible for verifying any data provided to you by Swipeclock.
2.2. Prior to preparing payroll for you, we shall have the right to seek confirmation that your data matches the information sent to us by Swipeclock, provided that it remains your obligation to verify all such data and nothing herein shall require the SP Companies to take possession of, collect, capture, obtain, or store any such data. We may, on your behalf, inform Swipeclock of any discrepancies you identify for us.
3. Data Ownership and Data Transfer.
3.1. You are deemed the author and owner of all data you produce within the Swipeclock Services. Notwithstanding the foregoing, by using the Swipeclock Services, you grant Swipeclock a non-exclusive, perpetual, irrevocable, worldwide license to retain, use, copy, and distribute aggregated and anonymized data Swipeclock receives from you for any legitimate business purpose.
3.2. It is your responsibility to keep adequate records for audit purposes.
3.3. The Swipeclock Services and all copyrights, trademarks, trade secrets, source code and other intellectual property and proprietary rights throughout the world (“Intellectual Property Rights”) therein and thereto are and shall remain the exclusive property of Swipeclock. All rights in and to the Swipeclock Services not expressly granted to you or to the SP Companies in this schedule have been reserved by Swipeclock.
4. Warranties.
4.1. EXCEPT FOR THOSE WARRANTIES EXPRESSLY MADE IN THIS SCHEDULE OR UNDER THE MSA, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE OTHER PARTY IN CONNECTION WITH THIS SCHEDULE (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY).
4.2. ALL SERVICES PROVIDED TO YOU ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” THERE IS NO GUARANTEE OR WARRANTY OF ANY KIND THAT SWIPECLOCK SERVICES WILL MEET YOUR NEEDS.
5. Limitation of Liability
5.1. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE SP COMPANIES ASSUME NO LIABILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND INCLUDING, WITHOUT LIMITATION, STATUTORY DAMAGES, LOSS OF BUSINESS, LOST PROFITS, LOST DATA OR FAILURE OF SECURITY RESULTING IN ANY WAY FROM THE YOUR USE OF THE SWIPECLOCK SERVICES, EXCEPT TO THE EXTENT CAUSED BY THE SP COMPANIES’ FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES). IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF ANY PARTY UNDER THIS SCHEDULE EXCEED THE AMOUNTS RECEIVED FROM YOU UNDER THIS SCHEDULE DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
6. Confidentiality.
6.1. The Parties acknowledge that, in the course of performing their respective obligations pursuant to this Agreement, each will have access to and contact with Proprietary Information (as defined below) of the other or of Swipeclock. Each Party agrees that it will not, during the term or at any time thereafter, disclose to others, or use for its benefit or the benefit of others, any Proprietary Information of the other Party, or of Swipeclock, unless this Agreement expressly permits such use or disclosure or such disclosure is required by law. For purposes of this Agreement, “Proprietary Information” means any information relating to a Party or a Party’s affiliate, including all Intellectual Property Rights, customer lists and customer data, provided that Proprietary Information will not include information that: (a) is or becomes generally available to the public other than as a result of a wrongful disclosure, (b) was lawfully in the receiving Party’s possession prior to disclosure by the disclosing Party, as can be shown by the receiving Party’s written records, (c) is independently developed by the receiving Party without resort to the Proprietary Information, as can be shown by the receiving Party’s written records, (d) was or becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party without a wrongful act, or (e) is required by law or judicial order, provided that the receiving Party shall give the disclosing Party prompt written notice of such required disclosure in order to afford the disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonably cooperate with the disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure.
7. Data Protection.
7.1. Definitions. Capitalized terms used herein shall have the meanings set forth in this Section.
7.1.1. “Authorized Persons” means Swipeclock’s, the SP Companies’, and your respective employees, contractors, agents, and auditors who have a need to know or otherwise access Personal Information to enable the Swipeclock, the SP Companies, and you to perform their respective obligations under this schedule, and who are bound by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this schedule.
7.1.2. “Personal Information” means information that you provide or for which you provide access to Swipeclock or the SP Companies, or information which Swipeclock or the SP Companies create or obtain on your behalf, in accordance with this schedule that: (i) identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii), including Sensitive Personal Information as defined in sub-Section (6.1.c), below. Your business contact information is not by itself Personal Information.
7.1.3. “Sensitive Personal Information” means an individual’s: (i) government-issued identification number, including Social Security Number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, health, or health insurance data.
7.1.4. “Data Breach” means any unauthorized access to or disclosure or acquisition of your Personal Information as defined under applicable law.
7.2. In connection with the performance of the Swipeclock Services under this schedule, each of the SP Companies and you will:
7.2.1. Comply with the terms and conditions set forth in this Schedule.
7.2.2. Comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information.
7.2.3. Employ reasonable security measures to protect Personal Information in its possession or under its control in accordance with such Party’s respective information security policy as amended from time to time (“Information Security Policy”).
7.2.4. Be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession.
7.2.5. Not disclose Personal Information to any person other than its Authorized Persons, or the Swipeclock Authorized Persons, without your prior written consent unless required by applicable law, in which case, the SP Companies will use reasonable efforts and, to the extent permitted by applicable law, notify you before such disclosure or as soon thereafter as reasonably possible.
7.2.6. Use and disclose Personal Information only for the purposes for which you provide the Personal Information, or access to it, pursuant to the terms and conditions of this schedule, and not use or otherwise disclose or make available Personal Information for the SP Companies’ own purposes without your prior written consent. You acknowledge, however, that Swipeclock may aggregate, de-identify, or anonymize Personal Information and use such aggregated, de-identified, or anonymized data, which shall no longer be considered Personal Information, for its own research and development purposes.
7.3. You acknowledge and agree that you shall be solely responsible for:
7.3.1. Any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under your control or in your possession.
7.3.2. Complying with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to Swipeclock.
7.4. Data Breach Procedures.
7.4.1. Each of the SP Companies and you maintain a cyber incident breach response plan in accordance with its Information Security Policy (“Cyber Incident Response Plan”) and will implement the procedures required under such plan on the occurrence of a Data Breach.
7.4.2. Upon the occurrence of a Data Breach, the Party experiencing the Data Breach (“Breached Party”) will notify the other Party of a Data Breach as soon as reasonably practicable after the Breached Party becomes aware of it.
7.4.3. Immediately following notification to the other Party of a Data Breach, the Parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with the Breached Party’s current Cyber Incident Response Plan.
7.4.4. To the extent permitted by applicable law and law enforcement, the Breached Party agrees that it will not inform any third party of any Data Breach without your prior consent, other than to inform a complainant that the matter has been forwarded to your legal counsel.
7.5. At least annually, each of the SP Companies and you will obtain a security controls review or audit performed by an independent third party based on recognized industry standards.
7.6. Upon the termination or expiration of this schedule, the SP Companies will promptly return to you or securely dispose of all Personal Information in their possession, except as they are required by applicable law to retain such Personal Information for legal or regulatory purposes. If we are not reasonably able to return or securely dispose of Personal Information, including, without limitation, Personal Information stored on backup media, we will continue to protect such Personal Information in accordance with the terms of this schedule until such time that it can reasonably return or securely dispose of such Personal Information. Such retention of Personal Information will be in accordance with applicable law and in no case will we retain biometric information for longer than 3 years.
7.7. You acknowledge that in the event that data is purged from Swipeclock’s systems, whether at your or our request or upon Swipeclock’s own initiative, purged data may continue to remain in offline backups and/or archives maintained by Swipeclock, and that a complete purge from all of Swipeclock’s equipment and media is likely impossible.
7.8. You acknowledge that despite commercially reasonable efforts, absolute security from any Internet-connected system is impossible.
7.9. You hereby acknowledge and agree (i) any biometric identifiers or biometric information of your employees that may be collected by your or on your behalf may only be collected with the explicit, written, informed consent of your employees, (ii) you, as owner of such biometric identifiers or biometric information, are required to obtain such explicit, written consent from your employees before such information is collected, (iii) you, as the employer, are responsible for all obligations relating to the collection of biometric identifiers or biometric information, and (iv) you, as the employer and owner of such biometric identifiers or biometric information, are responsible for all obligations relating to the possession, storage, transmission, protection, retention, destruction, disclosure, redisclosure, other dissemination, of biometric identifiers or biometric information. You acknowledge and agree that explicit, written consent will be obtained by you before you transmit, transfer, or direct any other Person to collect, capture, receive through trade, or otherwise obtain any biometric information on your behalf. You further acknowledge and agree that the SP Companies shall not be deemed to be in possession of, or to collect, capture, purchase, receive through trade, otherwise possess, sell, lease, trade, otherwise profit from, disclose, redisclose, otherwise disseminate, use, store, transmit, or protect biometric identifiers or biometric information by virtue of your use of the Swipeclock Services.
7.10. You also acknowledge and agree that the SP Companies do not hereby undertake to provide legal advice of any kind or to make any representation or warranty regarding the enforceability or effectiveness of any notice provided by or consent obtained by you in connection with your use of the Swipeclock Services.
8. Software License Agreement.
8.1. Some products offered for sale by Swipeclock, including, without limitation, time clocks, voice clocks, biometric devices, downloadable software, packaged software, and other products, may contain intellectual property of Swipeclock such as source code, object code, or program documentation (“Swipeclock Software”). In such case, except where expressly superseded by another license agreement the following terms shall apply:
8.2. You acknowledge that any license to use the Swipeclock Software is nonexclusive and non-transferable, and is only for use on equipment provided or approved by Swipeclock, and only in conjunction with the use of the Swipeclock Services for your internal business purposes.
8.3. You hereby acknowledge and agree that you shall not (i) copy, in whole or in part, software or documentation provided to you hereunder, (ii) modify the software, (iii) reverse compile or reverse assemble all or any portion of the software, or (iv) rent, lease, distribute, sell or create derivative works of the software.
8.4. You agree that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Swipeclock. You agree not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Swipeclock. You agree to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to software and documentation shall remain solely with Swipeclock.
8.5. During use of the Swipeclock Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Swipeclock Services. Any such activities, and any terms, conditions, warranties or representations associated with such activities, are solely between you and the applicable third-party. The SP Companies shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. We do not endorse any sites on the Internet that are linked through the Swipeclock Services. Such links are provided only as a matter of convenience, and in no event shall the SP Companies be responsible for any content, products, or other materials on or available from such sites. You recognize that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different licenses or other terms prior to the use of or access to such software, hardware or services.
8.6. You hereby acknowledge and agree that you shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (ii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (iv) interfere with or disrupt the integrity or performance of the Swipeclock Services or the data contained therein, or (v) attempt to gain unauthorized access to the Swipeclock Services or its related systems, networks, or data contained therein.
9. Licesnse Agreement for Customization Work.
9.1. As part of the suite of services Swipeclock offers, it may from time to time create programming, scripts, or rules (“Customization Code”) designed to accommodate feature requests, programming needs, and/or customizations on your behalf. For example, you may need a custom script to accommodate an unusual shift schedule or non-standard overtime rules.
9.2. Customization Code may include, but is not limited to, all of the following: scripts, rules, classes, source code, object code, object definitions, schemas, report templates, and file formats, all of which serve a narrow purpose for you. However, the source code of the base application software constituting the core Swipeclock Services available to everyone and/or not created to customize the system for you is not Customization Code.
9.3. You expressly acknowledge and agree that programming for payroll-related tasks often makes use of common “building blocks,” or pieces of Customization Code which may be useful for solving similar problems for you. Accordingly, except for portions of such programming that consist solely of confidential raw data belonging to us or to you (e.g., a list of confidential pay rates formatted in the syntax of a scripting language), neither we nor you shall assert any claim to ownership of intellectual property intended to prohibit or encumber the re-use of any Customization Code for the benefit of any of our other clients to which it may be deemed useful.
10. Further Commitments.
10.1. You hereby acknowledge and agree that, except where agreed upon in writing, (i) you shall not collect, store, process, transmit or send Social Security Numbers or other privileged data to the timekeeping website for any reason, notwithstanding the ability for the system to accept, or to be configured to accept, any such data, and (ii) you shall abstain from using such data for convenience (e.g., using the Social Security Number as a login or PIN on the time clock).
11. Indemnification.
11.1. You shall indemnify, hold harmless, and, at the SP Companies’ option, defend, the SP Companies, their service providers, agents, affiliates, and licensors, including but not limited to Swipeclock, from and against any and all claims, demands and actions, and any liabilities, damages and expenses (including court costs and attorney’s fees) (collectively “Liabilities”) resulting therefrom, caused by or relating to your (i) breach of the terms or conditions of this schedule; (ii) violation of applicable law, including all applicable privacy laws relating to, covering, or regulating, directly or indirectly, biometric information, data, and/or identifiers; (iii) violation of privacy rights or publicity rights; (vi) usage of any SwipeClock device or services in violation of this schedule; or (v) willful misconduct of you or your personnel. Your obligations under this paragraph shall exclude any and all claims, demands, actions, and Liabilities arising from the SP Companies’ negligent or more culpable acts or omissions, including any breach of this schedule.
Resources:
Swipeclock's Privacy Policy
Swipeclock's IL Biometric Resource Page
