Business Terms and Conditions

Last updated on September 17, 2024.

These Business Terms of Service (the “Agreement”) is between Timeshifter Inc., a Delaware corporation ("Timeshifter"), and the organization agreeing to these terms (the "Customer"). By purchasing subscriptions online or signing an Order Form, you have accepted and agreed to these Business Terms. Timeshifter and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS.

1.1 “Definitions” Unless specifically defined below, capitalized terms are defined in Schedule A.

2. SERVICES.

2.1. Access to Subscription Services. Subject to Customer’s compliance with this Agreement, Timeshifter grants to Customer a non-exclusive, non-assignable (except as permitted in Section 8.2 below) right to (a) use the Subscription Services, and (b) to permit the Authorized Users to access those Subscription Services, in each case (i) in accordance with each applicable Order and the applicable documentation made available by Timeshifter, and in the form provided by Timeshifter, and (ii) during the applicable Order Term specified in that Order.

a) Use of Services. Customer will not itself, and will not permit others to: (a) use the Subscription Services for any purpose not specified in the applicable documentation made available by Timeshifter or authorized in an applicable Order, including to harass any person, cause damage or injury to any person or property, violate any applicable laws or regulations, or infringe any IP Rights, (b) perform or disclose any performance, benchmarking, or vulnerability testing of the Subscription Services; or (c) share passwords among Authorized Users, or otherwise permit more than one Authorized User to access the Subscription Services using a single corresponding account, ((a) through (c) collectively, the “Use Policy”). Timeshifter has the right to suspend Customer’s access to the Subscription Services and/or to remove any Customer content (i) if Customer or such content violates the Use Policy, and/or (ii) in response to any other security threat against the Subscription Services. Customer will ensure that all passwords and all access to the accounts held by Authorized Users within the Subscription Services are kept secure and confidential, and Customer will be responsible for all access and losses that may occur to the extent caused by security lapses, failure to keep confidential access credentials, or other misconduct by Authorized Users, or to the extent occurring under any account or using any login credentials of any Authorized User.

2.2. Third-Party Services. The Subscription Services may use or may rely on technology or services not provided by Timeshifter (e.g., Customer’s computers or network infrastructure, AI functionality provided by entities other than Timeshifter, payment processing services provided by Customer’s payment processors, data transmissions over the Internet or local networks, and other technology or services outside the control of Timeshifter) (“Third-Party Services”). Timeshifter is not responsible for any Third-Party Services, but Timeshifter will use commercially reasonable efforts and will collaborate in good faith with Customer to assist Customer to debug, resolve, or otherwise mitigate any issues that arise from the Third-Party Services and that impact the Subscription Services.

2.3. Professional Services. From time to time, Customer may request Timeshifter to perform certain Professional Services. Professional Services will be specified in an applicable Order. Customer and Timeshifter will negotiate in good faith the scope of work and the pricing for such Professional Services, which will be captured in the applicable Order.

3. FINANCIALS.

3.1. Fees. The fees for the Services are specified in each applicable Order. All amounts due under this Agreement are stated and will be paid in United States Dollars ($ U.S.) to a bank account designated by Timeshifter in the USA.

3.2. Payments. Customer will pay all amounts specified under each Order or that are otherwise due under this Agreement. Unless otherwise specified in an Order, all payments are due within thirty (30) days of receiving a corresponding invoice from Timeshifter. Payments that are not made on time by Customer will bear interest at the rate of 5% per year. Costs and fees for collection of unpaid amounts under this Agreement will be paid by Customer.

3.3. Taxes. Prices specified under this Agreement are net of taxes. To the extent any taxes and other charges (including sales and use taxes, withholding taxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts and other government-imposed surcharges) (“Taxes”) are applicable to the Services received by Customer and/or to the payments made by Customer to Timeshifter under this Agreement, Customer will be responsible for those Taxes and will pay them to the appropriate authorities. Customer will reimburse Timeshifter for any such Taxes that Timeshifter may pay on behalf of Customer. Timeshifter will reasonably cooperate with Customer to help Customer obtain evidence of Tax payments under this Agreement to the extent Customer needs such evidence to claim tax credits. Each Party is responsible for its own respective income taxes.

3.4. Suspension. Timeshifter reserves the right to suspend the Services to Customer with notice in the event of Customer non-payment of past due invoice(s) which is not cured within fifteen (15) days of Timeshifter’s notice to Customer of such unpaid invoice(s).

4. INTELLECTUAL PROPERTY.

4.1. Ownership and Reservation of Rights. Except for Customer’s right to use the Subscription Services in accordance with Section 2, Timeshifter owns and will retain all right, title and interest in and to the Services and all related software and other technology used to deliver the Services (“Timeshifter Technology”), and to all IP Rights relating to any of the foregoing. Customer will retain ownership of its own technology, software, hardware, and services (“Customer Technology”), and to all IP Rights relating to any of the foregoing. To the extent that either Party develops any new IP Rights and/or any new work product in connection with this Agreement, solely or jointly with the other Party, then the following will apply: (a) Customer will be the sole owner of any such new IP Rights and new work product that relate to the Customer Technology, including any improvements, modifications or extensions of such Customer Technology (“New Customer IP”), and (b) Timeshifter will be the sole owner of any IP Rights and new work product that relate to the Timeshifter Technology, including any improvements, modifications or extensions of such Timeshifter Technology (“New Timeshifter IP”). Neither Party intends to grant, and neither Party does actually grant in connection with this Agreement any license or other right that is not expressly stated in this Agreement with respect to any IP Rights, Service, software or other technology, whether by implication, statute, inducement, estoppel or otherwise, each Party hereby reserves all of its rights other than the rights expressly granted in this Agreement. Each Party agrees to assign to the other Party the IP Rights developed by that Party, and does assign such IP Rights upon their creation, to the extent required under the foregoing clauses of this Section 4.1. Each Party will reasonably collaborate with the other Party to assist the other Party to perfect its ownership and rights to any IP Rights assigned to the other Party under this Agreement. The Timeshifter Technology and New Timeshifter IP are the Confidential Information of Timeshifter without the need for any marking. For clarification, the Timeshifter Technology and New Timeshifter IP include all technology and IP Rights relating to jet lag, shift work disorder, peak performance preparation, medication timing, medical treatment preparation, and other solutions for circadian shifting or timing. The Customer Technology and New Customer IP are the Confidential Information of Customer without the need for any marking.

5. CONFIDENTIALITY.

5.1. Each Party will comply with the confidentiality obligations in Schedule B (Confidentiality).

6. WARRANTIES AND DISCLAIMERS.

6.1. Operational Warranties. Timeshifter warrants to Customer that the Subscription Services (excluding Third-Party Services) (a) will operate substantially in accordance with Timeshifter’s applicable documentation made available by Timeshifter to Customer and that Order, (b) in the form provided by Timeshifter and not in combination with any other software, product, service or data, will not infringe any IP Rights, and (c) will comply with all applicable laws and regulations. The foregoing warranties in this Section 6.1 will remain in effect for the duration of the applicable Order. Customer warrants to Timeshifter that the content uploaded or processed by Customer through the Subscription Services (i) in the form provided by Customer and not in combination with any other software, product, service or data, will not infringe any IP Rights, and (ii) will comply with all applicable laws and regulations.

6.2. General Warranties. Each Party warrants and represents that during the Term of this Agreement, (a) it is and will remain a legal entity duly organized and in good standing with the applicable authorities, and (b) that it has all necessary corporate power and authority to execute and perform this Agreement and each Order.

6.3. Mutual Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, TO THE OTHER PARTY OR TO ANY OTHER PARTY, WITH RESPECT TO ANY PRODUCTS OR SERVICES (INCLUDING ANY IP RIGHTS, SERVICES, TECHNOLOGY, OR CONTENT), AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. Customer acknowledges and agrees that the Services have not been evaluated by the U.S. Food and Drug Administration, and that the Services are not intended to diagnose, treat, cure, or prevent any disease, and are intended for healthy adults. As Customer’s sole and exclusive remedy for any warranty breach under this Section 6, Timeshifter will make commercially reasonable efforts to address any material deviations from the applicable Timeshifter documentation that may occur in the operation of Subscription Services and to work with Customer in good faith to address such deviations.

6.4. Mutual Limitations. Except for a breach by a Party of the other Party’s IP Rights, and except for the Customer’s obligation to pay the fees due for Services in the normal course of this Agreement, (a) neither Party will be liable for any costs of procurement of substitute deliverables or other products or services, nor for any loss of business, loss of use or of data, interruption of business, lost profits or goodwill, or other indirect, special, incidental, exemplary or consequential damages of any kind arising in connection with this Agreement, and (b) under no circumstances will the total and aggregate liability of all kinds arising out of or related to this Agreement and all Orders, regardless of the forum and regardless of whether any action or claim is based on contract, indemnification obligations, tort or otherwise, exceed for either Party at any point in time the total amount paid to Timeshifter under this Agreement for the Services giving rise to such liability over the twelve (12) months prior to that point in time. The foregoing liability limitations in this Section 6.4 are cumulative, with all payments for claims or damages being aggregated to determine satisfaction of the limit specified in clause (b), and the existence of one or more claims will not enlarge that limit. Each Party acknowledges that the foregoing liability limitations in this Section 6.4 will apply notwithstanding any failure of essential purpose of any limited remedy, even if it or the other Party has been advised of the possibility of the respective loss, and to any liability that may arise out of third-party claims.

7. TERM AND TERMINATION.

7.1. Term. This Agreement becomes effective on the Effective Date and will continue in effect until terminated in accordance with Section 7.2 below (“Term”). Each Order will remain in effect for the duration specified in such Order (the “Order Term”). Unless otherwise provided in any Order, the Order Term of each such Order will automatically renew for consecutive renewal terms each equal to the initial Order Term (each a “Renewal Term”) unless either Party provides written notice of nonrenewal at least ninety (90) days prior to the expiration of the then-effective Order Term or Renewal Term.

7.2. Termination.

a) Termination for Convenience. Each Party has the right to terminate this Agreement at any time with thirty (30) days prior written notice as long as no Order Term is in effect at that time. Neither Party has the right to terminate (a) this Agreement as long as any Order remains in effect, or (b) any Order as long as the corresponding Order Term remains in effect, unless otherwise specified in such Order.

b) Termination for Cause. This Agreement (including all Orders then in effect) may also be terminated immediately, by written notice, (i) by either Party in the event of a material breach of this Agreement by the other Party if the circumstances that led to such breach remain uncured for 30 days after receiving written notice of default, or (ii) by either Party if the other Party ceases to do business without an assignee permitted by Section 8.2 below, or files or has filed against it a petition of bankruptcy that is not discharged within 120 days.

7.3. Effect of Termination. The provisions of Sections 1, 3 (to the extent any amounts owed by Customer under this Agreement are not paid as of the termination or expiration of this Agreement), 4, 5, 6, 7.3 and 8, and Schedules A and B will survive any termination or expiration of this Agreement.

8. GENERAL.

8.1. Insurance. During the term of this Agreement and for at least one year after any termination or expiration of this Agreement, each Party will maintain insurance policies with financially sound and nationally reputable insurers rated A-VII or better by A.M. Best Company as follows: (a) Commercial General Liability Insurance with limits of at least $1 Million per occurrence and at least $2 Million in the aggregate; (b) Workers’ Compensation and Employers’ Liability Insurance, of the type and amount required by laws and regulations applicable to that Party under this Agreement; and (c) coverage for Cyber and Privacy liability arising out of technology services, including invasion of privacy violations and data security breach of networks that are under that Party’s control, with a limit of at least $1 Million per occurrence and at least $1 Million in the aggregate. Each Party will provide the other party with certification of such insurance upon request.

8.2. Assignment. Neither Party may assign this Agreement or any Order without the express consent of the other Party, except that either Party may assign this Agreement (together with all Orders) without the need to obtain such consent in connection with a corporate reorganization, or in connection with a sale or transfer of all or substantially all of its stock, assets or business relating to this Agreement, provided that the assignee agrees to assume this Agreement and be bound by its terms.

8.3. Notices. All notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement or any Order will be in writing and will be personally delivered or sent by overnight courier service to each Party, as applicable, at the address set forth in the preamble of this Agreement or in a relevant Order, unless otherwise specified in this Agreement or in an applicable Order. Any other communications between the Parties, including relating to the technical and business collaboration under specific Orders, may be conducted over telephone, email or video conference.

8.4. Relationship of Parties. The Agreement does not create and will not be construed as creating any relationship of agency, franchise, fiduciary duty, partnership, or employment between the Parties. This Agreement and relationship are not exclusive for either Party. Each Party has the right to engage contractors, subcontractors, consultants, or other service providers (“Representatives”) in connection with such Party’s activities under this Agreement and under each Order, provided that such Party will be responsible to ensure that its Representatives are complying with such Party’s obligations under this Agreement and each applicable Order.

8.5. Applicable Law and Venue. This Agreement is governed by the laws of New York, without giving effect to its rules regarding conflicts of laws. Any dispute, claim or controversy arising out of or relating to this Agreement will be exclusively determined by arbitration in New York, NY. The arbitration will be conducted by one arbitrator and will be administered by JAMS pursuant to the JAMS Streamlined Arbitration Rules and Procedures. Judgment may be entered in any court having proper jurisdiction. Notwithstanding anything to the contrary in this Agreement, in the event of a breach under Schedule B (Confidentiality), each Party, without limiting any of its other respective rights or remedies, will be entitled to specific performance and injunctive and/or equitable relief, in addition to other remedies afforded by law, to protect its interests.

8.6. Force Majeure. Each Party will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that Party, including insurrection, riot or other act of civil disobedience, actual or threatened war or act of terrorism, pandemic or other large-scale health-related events, hacking or other cyber-attacks, act of any governmental agency, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm, shortage of labor, or any other act of God.

8.7. U.S. Government Users. Aspects of the Subscription Services are a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. If Customer is a US Government agency, the rights granted to Customer in this Agreement are subject to 48 C.F.R. 12.212, 48 C.F.R. 227.7202, and this Agreement.

8.8. Construction. For purposes of this Agreement, unless otherwise required by the context: the singular number will include the plural, and vice versa; the verb “may” indicates a legal right to perform the respective activity but does not establish a legal obligation to perform that activity; and the words “include,” “including” and “for example,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement. English is the official language of this Agreement. Each Party waives any rights that it may have under the laws of any country or jurisdiction to have this Agreement written in any local language, or interpreted or superseded by local law in those countries.

8.9. Miscellaneous. This Agreement and each Order can only be amended with the written approval of each Party. This Agreement includes all of the attached Schedules and all related Orders, and all such Schedules and Orders are expressly incorporated and made a part of this Agreement. This Agreement supersedes all prior agreements and understandings, including oral representations, between the Parties relating to its subject matter. In case of any conflict between the other terms of this Agreement and any Order, the Order will prevail over the rest of this Agreement to the extent expressly provided in such Order. This Agreement (including all related Orders) will prevail over all other purchase orders, quotations or other documents provided by either Party, unless executed by both Parties. Waiver of breach of any provision of this Agreement on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion. No claim, suit or action will be brought under this Agreement against either Party more than one year after the related cause of action first occurred. This Agreement may be executed in counterparts.

Schedule A

Definitions

1. “Authorized User” is (a) an individual authorized by Customer to access the Subscription Services on behalf of Customer and for the Customer’s business purposes, and otherwise in accordance with this Agreement (e.g., an employee of Customer assigned to use the Subscription Services on behalf of Customer under this Agreement), or (b) an individual who is an end customer or licensee of Customer and who is authorized by Customer to access the Subscription Services as part of the relationship between Customer and such customer or licensee. Unless approved by Timeshifter in writing (email acceptable), Customer will ensure that each Authorized User is a natural person, and not a legal entity.

2. “IP Rights” means any and all intellectual property rights anywhere in the world, including all (a) patents, including utility patents, design patents, utility models, industrial designs, statutory registrations and all other equivalent or similar rights anywhere in the world in inventions and discoveries, together with any applications thereof (“Patents”), (b) copyrights and all other similar rights in software, documentation, and other works of authorship (“Copyrights”), (c) mask work rights, (d) trade secrets rights and other similar rights in oral and written confidential information, know-how, documentation, technology and software (“Trade Secrets”), (e) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations, and applications therefore (“Trademark Rights”), (f) rights in all moral and economic rights of authors and inventors, however denominated; and (g) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software or services.

3. “Order” means each order form, statement of work, or other similar document that is entered into by the Parties and references this Agreement, and which specifies Services to be provided by Timeshifter and corresponding fees to be paid by Customer. Orders may be submitted and accepted electronically or in writing.

4. “Professional Services” means concierge services, implementation services, consulting, speaking engagements, API integrations, customization of Subscription Services, or any other such services agreed upon by the Parties.

5. “Services" means any Subscription Services and/or Professional Services provided by Timeshifter to Customer under this Agreement.

6. “Subscription Services” means all cloud-related services made available by Timeshifter to Customer under this Agreement, as specified in an Order. Subscription Services include mobile apps, web-based apps, application programming interfaces (APIs), and all other technology used by Timeshifter to deliver or support the cloud-related services. Subscription Services may be provided on a subscription basis, on a transactional basis, or using any other business model as specified in an applicable Order.

Schedule B

Confidentiality

1. “Confidential Information” means any information provided or otherwise made available by either Party (“Discloser”) to the other Party (“Recipient”) in connection with this Agreement, and which should reasonably be considered confidential considering its nature and the circumstances of its disclosure. Confidential Information includes all technology, software, services, and data, including technical and business information, documentation, customer or vendor information of each Party, and customer support information, whether in paper or electronic format, or communicated orally. Confidential Information excludes any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure, and was not subject to a confidentiality obligation towards Discloser; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to Recipient from a source other than the Discloser, and is not subject to a confidentiality obligation towards Discloser.

2. Obligations. With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will only use such Confidential Information as expressly permitted under this Agreement and only to the extent necessary, and (b) Recipient will not disclose any such Confidential Information to any other party, except to its Representatives who need to have such Confidential Information when acting on behalf of Recipient within the scope of this Agreement (in which case Recipient will remain responsible for any noncompliance by such Representatives). Recipient further agrees to keep confidential the terms of this Agreement. Recipient will not reverse engineer, disassemble or decompile any Subscription Services or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.

3. Authorized User Data. Customer will own all data relating to Authorized Users and to the commercial transactions processed using the Subscription Services covered by this Agreement (such data “Transaction Data”). Customer will comply with all applicable privacy laws in the course of collecting, storing and using the Transaction Data. Customer grants to Timeshifter a perpetual and irrevocable license, with the right to sublicense to Timeshifter’ affiliates, to use the Transaction Data in connection with Timeshifter’ business, including to provide the Subscription Services to Customer and to provide to Customer the data analytics available in Customer’s cloud portal, and to improve the Subscription Services. The foregoing license further allows Timeshifter to use Transaction Data in an aggregate and anonymized format (without uniquely identifying individuals or entities) in the course of its business. Timeshifter will also comply with all privacy laws applicable to Timeshifter in connection with the Transaction Data to the extent that Timeshifter has access to such Transaction Data.

4. Deletion of Data. Upon any termination or termination of this Agreement or upon request from the Discloser, Recipient will delete all of the Confidential Information received or obtained from Discloser under this Agreement, except that Recipient may continue to hold such information to perform its obligations or exercise its rights under this Agreement, for data retention purposes in accordance with its data retention policy (provided that such data is deleted as soon as the retention policy permits deletion), or as otherwise required by applicable laws and regulations.