Effective date: March 1, 2019
A Glossary of defined terms used in these Terms of Service appears toward the end of this page.
XPunch is a business to business service that seeks to help organizations manage their time, whether it be employee time tracking, or employee scheduling. Individual people may use XPunch to track their own hours spent on work. Groups of people may interact with one another in an XPunch community called a Group to use XPunch to track how long group members worked, to manage member schedules, or to facilitate the exchange of data and communication disclosed by members on XPunch to share with other group members. Certain XPunch services are provided to you free-of-charge. Other XPunch services require payment before you can access them.
XPunch is made available to you on a software as a service basis through a web portal on our website, via the XPunch Progressive Web App, or via the XPunch application programming interface.
The parties hereby confirm that they have requested that this User Agreement and all related documents be drafted in English. Les parties ont exigé que la présente convention et tous les documents afférents soient rédigés en langue anglaise.
Welcome to XPunch! Webinnovex provides the XPunch websites, web pages, software applications, application programming interfaces, tools, and services (collectively "XPunch Service" or the "Service") to you, subject to the following Terms of Service ("TOS" or "the TOS"). If you are accepting these Terms and using the Service on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so and have the authority to bind such entity to these Terms, in which case the words “you,” “your,” "customer," or "member" as used in these Terms shall refer to such entity. The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Service constitutes your agreement to all such terms, conditions, and notices. You are entering a binding contract with Webinnovex Inc. You may not use the Service if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using the Service. You acknowledge that you have read and understood the TOS and the Webinnovex Privacy Notice at https://www.xpunch.com/privacy/.
We may update and revise the TOS from time to time. We will strive to make three (3) or fewer revisions per year. The changes will not be retroactive, and the most current version of the TOS, which will always be at https://www.xpunch.com/tos/, will govern our relationship with you. It is your responsibility to check the TOS regularly for changes. Other than for changes addressing new functions or made for legal reasons, we will notify you 30 days in advance of making effective changes to the TOS that impact the rights or obligations of any party to the TOS, for example via one or more of the methods indicated in the "Notice of Change" section of the TOS appearing further below. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree with the new terms, you must stop using XPunch and the XPunch Service and terminate this TOS by closing your XPunch account within the time specified in the notification or within thirty (30) days if no time is specified in the notification. See the "Continuity of Service" section, below, for instructions on how to close your account.
This Agreement is between Webinnovex and you, and governs the terms and conditions of your use of XPunch Services. The Service is licensed, not sold. Webinnovex reserves all other rights. The TOS, together with any operating rules, notices, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by Webinnovex (collectively, the "Agreement") constitute the entire agreement between you and Webinnovex and govern your use of the Service, superseding any prior agreements between you and Webinnovex or XPunch (including, but not limited to, any prior versions of the TOS).
The failure of Webinnovex to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to limit or eliminate that provision to the minimum extent necessary and to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within six (6) months after such claim or cause of action arose or be forever barred.
Webinnovex will not be liable for any failure to perform its obligations under the TOS if that failure results from any cause beyond its reasonable control (force majeure), including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
The XPunch Service is operated by Webinnovex Inc., Montreal, Quebec, Canada or its affiliates. This TOS and associated Notices apply to the XPunch Service and does not apply to the content of third parties.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Webinnovex Inc. as a result of this agreement or use of the XPunch Service.
Please note that other Webinnovex services or products, outside of XPunch, are governed by a different TOS.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
To the fullest extent permitted by law, you agree to indemnify and hold Webinnovex, its parents, subsidiaries, affiliates, officers and employees, harmless from and against all damages, losses, claims, demands, or expenses of any kind including reasonable attorneys' fees and costs arising out of: (1) your breach of the TOS; (2) any User content; (3) any activity in which you engage on or through the Service; and (4) your violation of any law or the rights of a third party.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND WEBINNOVEX HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Webinnovex agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Webinnovex (including any claim or dispute between you and a third-party agent of Webinnovex) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Service, or the actions of Webinnovex or its agents, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
Informal Resolution: If you and Webinnovex have a dispute, you and Webinnovex agree to try for 60 days to resolve it informally.
Law and Forum for Disputes: The TOS and the relationship or any disputes between you and Webinnovex shall be governed in all respects by the laws of the Province of Quebec and the applicable federal laws of Canada without regard to conflict of law principles. If you and Webinnovex are unable to find a mutually acceptable resolution to the dispute via the "Informal Resolution" measures detailed in the previous paragraph, you agree that the exclusive means of resolving the dispute will follow the "Arbitration" measures, detailed in the next paragraph, below. Should a court of competent jurisdiction invalidate these measures, you agree to submit to the jurisdiction of the courts located in Montreal, Quebec for the resolution of any and and all claims or disputes you may have against Webinnovex.
Arbitration: The exclusive means of formally resolving a dispute between you and Webinnovex will be by confidential, binding arbitration before a single arbitrator chosen by you and Webinnovex. You will give notice of your dispute to us in writing. If we do not decide together on an arbitrator within fifteen (15) days after we receive that notice, we both agree to ask the the ADR Institute of Canada (ADRIC) to appoint one for us. The place of arbitration shall be in Montreal, Quebec, under the provisions of the Quebec Ministry of Justice, and shall be mediated pursuant to the National Mediation Rules of the ADR Institute of Canada, Inc., in force at the time of the dispute. Unless the parties agree or the arbitrator determines otherwise, the arbitration shall not involve any personal appearance by the parties or witnesses and shall be conducted by telephone, online and/or be solely based on written submissions. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The arbitrator’s award can be entered into the registry of the Superior Court of Quebec , Montreal Division, and enforced in the same way as a court order if the court in the enforcing jurisdiction allows.
Improperly Filed Claims: All claims you bring against Webinnovex must be resolved in accordance with this Legal Disputes section. All claims filed or brought contrary to the Legal Disputes section shall be considered improperly filed. Should you file a claim contrary to the Legal Disputes Section, Webinnovex may recover attorneys' fees and costs up to USD$1,500, provided that Webinnovex has notified you of the improperly filed claim, and you have failed to promptly withdraw the claim.
Dispute Resolution Proceedings: Any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Webinnovex and you each waive any right to a trial by jury.
The information provided on the Service does not constitute business, medical or other professional advice, and is subject to change. Information obtained from this Service should not be used as a substitute for consultation with competent professional advisers. Before making any decision or taking any action, you should consult professional advisers with expertise in your area of interest.
All information provided is believed to be accurate and reliable. We will make changes, updates and deletions as required and make every effort to ensure the accuracy and quality of the information provided. However, Webinnovex cannot guarantee the timeliness, correctness or completeness of information, nor do we assume responsibility for any errors and are not liable for any damages of any kind resulting from the use of, or reliance on, the information contained herein. No warranty of any kind is given, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Webinnovex be liable to you or anyone else for any decision made or action taken in reliance on the information in this Service or for any consequential, special or similar damages, even if advised of the possibility of such damages.
Permission to use Documents (such as white papers, press releases, datasheets, reports, and FAQs) from the Services is granted, provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear, (2) use of such Documents from the Service is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media, and (3) no modifications of any Documents are made. Accredited educational institutions, such as K-12, universities, private/public colleges, and state community colleges, may download and reproduce the Documents for distribution in the classroom. Distribution outside the classroom requires express written permission. Use for any other purpose is expressly prohibited by law, and may result in severe civil and criminal penalties.
Documents specified above do not include the design or layout of the XPunch website or any other Webinnovex owned, operated, licensed or controlled site. Elements of XPunch websites are protected by trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from any Webinnovex website may be copied or retransmitted unless expressly permitted by Webinnovex.
WEBINNOVEX AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE SERVICE, DOCUMENTS, AND RELATED GRAPHICS PUBLISHED AS PART OF THE SERVICES FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
You may end your legal agreement with Webinnovex at any time by deactivating your account and discontinuing your use of the Service. See https://xpunch.zendesk.com/hc/en-us/ for instructions on how to deactivate your account and the Privacy Notice for more information on what happens to your information. If you encounter difficulty in closing your account, contact customer support via https://xpunch.zendesk.com/hc/en-us/requests/new/.
With or without notice, we may temporarily or permanently suspend or terminate your account or cease providing you with all or part of the Service at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated the TOS or the XPunch Rules, (ii) you are abusing the Service in any way, (iii) you create risk or possible legal exposure for us; (iv) your account should be removed due to prolonged inactivity; or (v) our provision of the Service to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account, depending on the circumstances.
You agree that Webinnovex shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Users assume the risks of verifying any materials used or relied on, and the risk that service may be intermittent or discontinued. Users are encouraged to routinely backup their XPunch data and to maintain their own archived copies of their XPunch reports, timesheets, and schedules in the event that the service becomes intermittent or is discontinued.
Communications made through electronic mail, ticket support services, customer support services, or other messaging systems shall in no way be deemed to constitute legal notice to Webinnovex or any of its agencies, officers, employees, agents, or representatives, with respect to any existing or potential claim or cause of action against Webinnovex or any of its agencies, officers, employees, agents, or representatives, where notice to the Webinnovex is required by any federal, provincial or local laws, rules, or regulations.
Due diligence is performed to ensure "Off Site" links are valid and appropriate, but when selecting an "Off Site" link you are leaving the XPunch website. A link does not imply an endorsement of a site; likewise, not linking to a particular site does not imply lack of endorsement. The content of and/or views expressed on "Off Site" web pages and links are strictly those of the external agency, organization or business. Webinnovex bears no responsibility for the information, graphics or links. The materials in this site and the third-party sites are provided “as is” and without warranties of any kind either express or implied. Webinnovex reserves the right to accept or deny any requests for off site links.
Links from or to websites outside the Site are meant for convenience only. Linking to any other site is at your sole risk and Webinnovex will not be responsible or liable for any damages in connection with linking. Links to downloadable software sites are for convenience only and Webinnovex is not responsible or liable for any difficulties or consequences associated with downloading the software. Use of any downloaded software is governed by the terms of the license agreement, if any, which accompanies or is provided with the software.
Webinnovex specifically disavows legal responsibility for what a user may find on another site, or for personal opinions of individuals posted on any site, whether or not operated by Webinnovex.
XPunch currently provides users with access to time-management, time tracking, and employee scheduling services. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new XPunch resources, shall be subject to the TOS.
In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration forms (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you added your phone number to your account and you later change or deactivate that phone number, you must update your account information to help prevent us from communicating with anyone who acquires your old number.
If you provide any information that is untrue, inaccurate, not current or incomplete, or Webinnovex has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Webinnovex has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Webinnovex offers its Service, as described on the XPunch website (xpunch.com) and as published within the Service, for monthly or annual subscription fees (the "Fees") which you will pay to Webinnovex by authorized credit card. The Fees shall automatically renew for additional periods equal to the original initial subscription unless either party gives the other notice of non-renewal before the end of the relevant subscription term. If you elect not to renew, you should choose the "Cancel subscription" option in your XPunch account's "Billing" section—see https://xpunch.zendesk.com/hc/en-us/ for more detailed instructions or contact XPunch's Customer Support department via https://xpunch.zendesk.com/hc/en-us/requests/new/ if you require assistance in completing this action. The Fees applicable for the Service are available at www.xpunch.com and as published within the Service. Webinnovex reserves the right to change the Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (via one or more of the methods indicated in the "Notice of Change" section of the TOS appearing further below). If you do not agree with the new Fee schedule, you must stop using XPunch and the XPunch Service and terminate this User Agreement by closing your XPunch account within the time specified in the Notice or within thirty (30) days if no time is specified in the Notice. See the "Continuity of Service" section, above, for instructions on how to close your account. Notwithstanding any termination of this User Agreement, you agree that all outstanding amounts owing to us are immediately due and payable upon account closure. If you do not close your XPunch account within the time specified in the Notice, the Fee Changes will take effect on the date indicated in the Notice. In that case, your continued access and use of our Services will be deemed to constitute your acceptance of the amended terms.
In the case of automatic payments, your XPunch account will be considered delinquent if your credit card company or our third-party payment supplier refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next accounting cycle. The Service, access to the Service, and/or your data on the Service may be suspended, archived or purged from the system if your account is delinquent for more than one billing cycle. Webinnovex may impose a charge to restore archived data from delinquent accounts.
If you believe Webinnovex has billed you incorrectly, you must contact Webinnovex no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to XPunch's Customer Support department via https://xpunch.zendesk.com/hc/en-us/requests/new/.
Webinnovex may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Webinnovex thirty (30) days after the mailing date of the invoice, or the Service may be terminated. Unpaid invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, plus all expenses of collection.
You agree that not more than one person may use the same XPunch licence or XPunch account.
Webinnovex reserves the right to discontinue or modify coupons, credits, special promotional offers, and any other free or discounted seats or licenses at our discretion at any time and without advance notice.
Webinnovex's Privacy Notice applies to the use of any Service provided by Webinnovex. The Privacy Notice is incorporated into and forms part of these Terms of Service. View Webinnovex's full Privacy Notice at https://www.xpunch.com/privacy/.
Pursuant to Webinnovex’s Privacy Notice, we may disclose information about you for certain purposes to Webinnovex Inc. corporate family members, third-party service providers, identification services, and law enforcement or other legal entities.
Internet transmissions are never completely private or secure. Despite any security measures that we may have in place, unauthorized parties might intercept any information transmitted within, to or from the Service, or improperly access any data pertaining to you that we store. You assume all risk that unauthorized interception or access might occur even if we have stated that a particular transmission (for example, credit card information) is secure and/or encrypted.
Webinnovex's automated systems may scan and analyze the contents of data, such as punch details, scheduling details, or messages between users sent through the Service to detect and prevent fraudulent activity or violations of the TOS, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the data is sent, or while in storage, and may result in a delay of transimission of the data or in the data being withheld. Webinnovex may store data to conduct this scanning and analysis.
You can control most communications from the Service. If you enrol in some options in the Service, Webinnovex may send you electronic communications such as emails, automated telephone messages, text messages, push notifications, app notifications, or any combination of these methods as part of your use of the Service. Your communications service provider may charge you fees (such as SMS fees) to receive these communications—check with your service provider to learn if this is the case for you.
There are some communications that are considered part of the Service and your account, and you may not be able to opt-out from receiving them; for example, notices that are reasonably required for security purposes, the provision of a core XPunch Service, service announcements, administrative messages, and/or notices to you that are required under these Terms of Service. These communications may be sent via email, automated telephone messages, manual telephone calls, text messages, push notifications, app notifications, or any combination of these methods. Webinnovex may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Webinnovex or its agents for quality control and training purposes, or for its own protection.
The very nature of the XPunch service implies interaction, communication, and the sharing and storage of personal information between users within the same XPunch group; for example, between a group's supervisors and its employees. These users will be able to maintain their own, independent, copies of any interaction, communication, and information that became available in an XPunch group. If Webinnovex provides you with information about another user, you agree you will use the information only for the purposes it is provided to you; for example, for time management and scheduling purposes within your group. You may not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to the Service. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so. You must respect privacy laws as they apply to the other users in their regions.
Webinnovex has no obligation to monitor the use of the Service by members. You acknowledge and agree that Webinnovex reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. During monitoring, information may be examined, recorded, copied, and used for authorized purposes in accordance with our Privacy Notice. Use of the Service constitutes consent to such monitoring.
Our Service evolves constantly. As such, we may change, add, or remove features to and from the Service at any time. Without prior notice, we may stop (permanently or temporarily) providing the Service or any features within the Service to you or to users generally for any or no reason. You agree that Webinnovex shall not be liable to you or any third-party for any termination of your access to the Service or to a feature on the Service.
We also retain the right to create limits on use and storage at our sole discretion at any time. We may also remove, destroy, or refuse to distribute any content on the Service, suspend or terminate users, and reclaim usernames without liability to you or any third party for any reason, including, without limitation, for lack of use, fraud, or if Webinnovex reasonably believes that you have violated or acted inconsistently with the letter or spirit of the TOS.
Webinnovex may run advertisements and promotions on XPunch website pages and on the Service. By subscribing to the Service, you agree that XPunch has the right to run such advertisements and promotions. The manner, mode and extent of advertising by Webinnovex on the XPunch Web Sites is subject to change. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Webinnovex shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
You acknowledge and agree that the Service and anything used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Webinnovex or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service.
Webinnovex grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software, if any; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Service in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface or the application programming interface that is provided by Webinnovex for use in accessing the Service.
All content and software that is made available to view and/or download in connection with the XPunch Service, excluding content and/or software that may be made available by end-users through a Communication Service, Software is owned by and is the copyrighted work of Webinnovex Inc. and/or its suppliers and is protected by copyright laws and international treaty provisions.
All contents of the XPunch Web Site are: Copyright © 2019 Webinnovex Inc. and/or its suppliers, Montreal, Quebec, Canada. All rights reserved.
TRADEMARKS. "Webinnovex," "XPunch," the XPunch logo, and/or other Webinnovex products and services referenced herein are either trademarks or registered trademarks of Webinnovex in the United States, Canada and/or other countries. The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WEBINNOVEX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WORKMANLIKE EFFORT AND NON-INFRINGEMENT.
(b) WEBINNOVEX MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE, APP, API, OR SERVICE WILL BE CORRECTED.
(c) WEBINNOVEX DOES NOT WARRANT THAT THE SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE.
(d) WEBINNOVEX MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WEBINNOVEX OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
(f) WEBINNOVEX IS NOT OBLIGATED UNDER THIS AGREEMENT TO PROVIDE ANY SUPPORT SERVICES FOR THE SERVICE. ANY SUPPORT PROVIDED IS "AS IS," "WITH ALL FAULTS," AND WITHOUT WARRANTY OF ANY KIND.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE WEBINNOVEX ENTITIES EXCEED THE GREATER OF TEN U.S. DOLLARS (U.S. $10.00) OR THE AMOUNT YOU PAID WEBINNOVEX, IF ANY, DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION EXCLUDES ANY FEES PAID BY YOU TO A THIRD PARTY OR FOR ANY PARTNER SERVICES, EVEN WHERE THE SERVICE IS BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER SERVICES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WEBINNOVEX SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, YOUR NEED TO MODIFY PRACTICES OR BEHAVIOUR, BUSINESS INTERRUPTION, GOODWILL, USE, DATA OR ANY OTHER LOSS OR DAMAGE (EVEN IF WEBINNOVEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. THESE EXCLUSIONS AND LIMITATIONS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE XPUNCH SITES/SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE XPUNCH SITES/SERVICES AND TO THE INFORMATION THEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE ESSENTIAL PURPOSE OF THE ABOVE SECTIONS RELATING TO LIABILITY AND WARRANTY IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WEBINNOVEX WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Notices of changes to the TOS, data breaches, or other matters to you may be made by displaying partial copies of notices or links to notices via one or more of the following: an electronic click-through, a Service notification, a banner notice on a Service interface, an email to the email associated with your account, the Service's internal messaging system, the XPunch Message Center, or via one of our social media outlets such as https://twitter.com/XPunchApp/ and https://facebook.com/XPunchApp/. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about the Service or the TOS.
The XPunch websites, Service, App, or API may require you to open an account where you must complete a registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You then will choose a password and a user name or associate your account with a social login or other federated identity management systems such as Microsoft or Google. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Webinnovex immediately of any unauthorized use of your account or any other breach of security. XPunch will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by XPunch or another party due to someone else using your account or password. You may not use anyone else’s account at any time without the permission of the account holder.
Our XPunch account sign in services interact with social networks or other federated identity management systems such as Microsoft and Google and depend on the availability of those networks or systems, and the features and functionality they make available to us, which we do not control and may change without notice. If at any time a social network other federated identity management system stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by Webinnovex in its sole discretion (each an “API Change”), we may stop providing access to your XPunch account via a particular Social Network and we will not be liable to you or any third party for any such change.
In order to offer our users an added level of segmentation; for example, by region, timezone, or organization, the Service operates on a principle we call groups. Users must necessarily become a member of at least one XPunch group—even if they are the sole member of that group.
Group members may enjoy various levels of access to functions or privileges within their group. A user that creates a group is automatically assigned administrator privileges. This person, in turn, is able to invite other XPunch users to the group and assign them a tailor-made privilege level; for example, whether they can see or modify other members' punches or not, among many other settings. Although they are not named as such, most groups with several members typically have permission sets or statuses that can be described as and equated to administrators, supervisors / managers, members, and visitor-style privileges. It is out of the scope of this section to go into detail on how this works since each group is different and has its own needs.
Group administrators have access to the group's "Billing" section and are therefore capable of adding, editing, and deleting subscriptions and payment sources as well as viewing invoices on the Service. Group administrators are also able to assign and remove administrative rights to and from other group members—including other administrators—at any time. Thus, a group may have multiple administrators. This is a useful function for groups that wish to have a continuity plan in place should one of the administrators become indisposed; for example, if they are on holiday, ill, deceased, or leave the organization. At the same time, administrators should be aware that they should only assign administrative rights to members in which they have absolute confidence since any administrator can remove administrative rights from another administrator.
From time to time we receive requests from organizations to which a group belongs to either add a new user to the group and assign that user administrative rights, or to assign administrative rights to an existing group member because the group's administrator(s) has become indisposed. In such a case, we will: (1) attempt to enter into contact with the existing group administrator(s) via their email address and/or other contact information that they have—or had—on file in their XPunch group to confirm the request; (2) refuse the organization's request if an administrator responds and advises us not to take any action; (3) honor the organization's request if the administrator(s) does not respond to our inquiry within ten days; or (4) honor the organization's request if an administrator advises us that they do not object to us honoring the organization's request. Webinnovex at its sole discretion reserves the right to ignore or refuse requests from organizations that request us to add new users to a group or assign administrative rights to group members, or both.
You agree that Webinnovex shall not be liable for any damage that results from a member with privileges of any sort or any level abusing their privilege within your group.
As a condition of your use of the Services, you agree not to misuse the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may NOT (1) interfere with or disable the Service or access it using a method other than the interface or the API and the instructions that we provide; (2) access, tamper with, gain unauthorized access, or use non-public areas of the Service, Webinnovex's computer systems, other accounts, or the technical delivery systems of Webinnovex's providers; (3) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (4) access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces and APIs that are provided by Webinnovex; (5) forge any TCP/IP packet header or any part of the header information in any email or other communication, or in any way use the Service to send altered, deceptive or false source-identifying information; or (6) interfere with, deny, or disrupt, impair, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services.
If you have agreed to allow your minor child, or a child for whom you are legal guardian (a "Minor"), to use the Service, you agree that you shall be solely responsible for: (a) the online conduct of such Minor; (b) monitoring such Minor's access to and use of the Service; and (c) the consequences of any use of the Service by such Minor. Children under the age of 13 should not register for any Service, even with the supervision of a parent or guardian. At various places on the Service, we may ask whether users are under the age of 18, 16, or 13. Webinnovex relies on our users to be truthful in responding to these questions. If a user does not identify his/her proper age, we will have no way of verifying actual age with respect to this TOS and our Privacy Notice.
Reference: You acknowledge and accept that Webinnovex has the right to use your name and organization's logo or colors to identify you or your organization on any part or extension of the Service; for example, to personalize your XPunch group's appearance or to provide identifying information about you to other group members.
If you have any questions concerning the Service or the TOS, or to report any violations of the TOS please contact XPunch Customer Service via our support form at https://xpunch.zendesk.com/hc/en-us/requests/new/.