Timerack Master Services Agreement
Please read these terms and conditions (used herein or further referenced as the “Master Services Agreement”, “MSA” or “Terms”) carefully as they are a legally binding agreement between you / your company (“You” or “Your”) and Timecentric Inc. dba Time Rack, a North Carolina corporation (“Time Rack”, “We”, “Our” or “Us”). These Terms govern Your use of the websites, software, hardware, or ancillary online or offline products and services provided by Us (collectively, the “Service”), including any data transmission, access and storage of Your data that link or otherwise reference these Terms, including Our privacy, acceptable use and data security policies, as well as any service level agreements (“SLAs”). By accessing the Service or signing any Order Form (as defined below) You agree to be bound by these Terms.
Your use of the Service is further governed pursuant to any other separately written understandings (paper or electronic) entered into between You and Time Rack relating to specific products and services accessed or used, specifying, among other things, the number of users and other products and services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties (each an “Order Form”). The terms of any Order Form are automatically incorporated by reference into these Terms. In the event of any conflict between these Terms and the terms of any such Order Form, the terms of this Master Services Agreement will prevail.
A. Use of the Service
We hereby grant You a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to these Terms. If You access the Service through an account assigned to You by an administrator or use the Service in conjunction with third party software Your access could be limited, disabled or terminated, and may be further subject to, and further restricted by, any such application program interfaces or other means of electronic data transfer methods to and from Your payroll, human resources or other system(s). You may not access the Service if You are a competitor of Time Rack or for purposes of monitoring its availability, performance, functionality, or for any other benchmarking or competitive purposes. You will not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or any audio and visual information, documents, or other material (“Content”) contained or made available to You as a result of accessing or using the Service in any way; (b) modify or make derivative works based upon the Service or the Content; (c) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (d) reverse engineer or access the Service in order to (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics of the Service; or (iii) copy any ideas, features, functions or graphics of the Service. You may not allow Your employees, representatives, consultants, contractors or agents who are authorized to use the Service (each a “User”) to share access to the Service with a single username and/or password, however, You may reassign a User seat from time to time to a new User who is replacing the former User who has terminated employment or otherwise changed job status or function and no longer uses the Service.
You will not: (A) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (B) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (C) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (D) interfere with or disrupt the integrity or performance of the Service; or (E) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You will: (a) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to Us immediately and use commercially reasonable efforts to immediately stop any copying or distribution of Content that is known or suspected by You or a User; and (c) not impersonate another Time Rack user or provide false identity information to gain access to or use the Service.
B. Account Information and Data
We do not own any data, information or material provided or submitted by You in the course of Your use of the Service. You, not Time Rack, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all of the data you input, import and/or store within the Service. We are not responsible or liable for the deletion, correction, destruction, damage, or loss of, or failure to store, any of Your data. In the event this MSA is terminated (other than by reason of Your material breach), a backup file of the Your data which is available for export or download from the Service will be available to You for thirty (30) days following the date of termination of these Terms if You so request at the time of termination. We reserve the right to withhold, remove and/or discard Your data without notice in the event of Your material breach of these Terms, including, without limitation, Your non-payment. Upon termination of these Terms by Us for cause (including material breach), Your right to access or use Your data immediately ceases, and We will have no obligation to maintain or forward any of Your data to You.
C. Billing and Payment
You agree to pay all fees and charges in accordance with each Order Form. Payment of all fees will be paid in United States dollars and are nonrefundable. You authorize Time Rack to initiate payment for all fees related to Your access and use of the Service by allowing us to post charges to a valid credit card or authorizing Us to debit a verified bank account in accordance with these Terms. You may expand Your use of the Service (i.e.: add products, additional Users, etc.) by signing an Order Form either electronically or through Our website. Any additions to the Service will be (a) coterminous with the then current Term and (b) charged in full for the current billing period or pro-rated as otherwise stated in the Order Form. We reserve the right to modify Our fees and to introduce new fees at any time, upon at least thirty (30) days’ prior notice to You, which notice may be provided by e-mail. All pricing terms are confidential and You agree not to disclose them to any third party.
We will retain Your data stored as part of the Service during the Term. It is Your responsibility to notify Us in writing prior to termination of the Service if You require access to historical data after termination of Service. Any such access or export after termination will result in additional fees in accordance with Our published pricing at time of termination. We will use reasonable efforts to notify You if there is any failure of retrieval of Your data, however any such failure will not affect Your responsibility for payment of the additional storage and retrieval charges. We reserve the right to modify Our general practices and limits relating to storage of historical data. Our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Time Rack’s income. You agree to provide Us with complete and accurate billing and contact information, including your legal company name, street address, e-mail address, name and telephone number of an authorized billing contact and will provide written notice of any changes to this information within ten (10) days of such change. If You believe fees have been charged in error You must contact Us in writing within thirty (30) days of the date of such charge in question in order to be eligible to receive an adjustment or credit, which in all cases, will be subject to Our good faith review. After the Initial Term, subject to the terms of any Order Form or SLA, We reserve the right to increase fees no more than once annually at a rate of four percent (4%) per annum or in accordance with any increase in the U.S. Consumer Price Index (CPI), whichever is greater.
D. Audit and Suspension Rights
We have the right to audit usage of the Service no more than once quarterly; provided, however, that We have the right to audit usage of the Service more frequently as may be reasonably necessary in connection with any known or suspected breach of these Terms. If Your usage is equal to or greater than 110% of Your contracted per User or usage volume, or in the case an increase in billing has already occurred, Your last recorded per User or usage volume, We are entitled to collect fees from You for all excess usage in the same manner and intervals as specified in any Order Form related to the applicable product or service being utilized as part of the Service. We further reserve the right to suspend Your access to the Service if Your account becomes delinquent for more than forty-five (45) days. Delinquent fees are subject to interest of one and one half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for usage of the Service during any such period of suspension. Notwithstanding anything to the contrary in these Terms, We also reserve the right to suspend or terminate access and use of the Service, subject to Us providing written notice to You, should We detect Your use of the Service is (i) a source of malware or other computer virus, (ii) presents a security risk for other users of the Service, (iii) otherwise causes noticeable degradation of the Service, or (iv) is otherwise in breach of these Terms or any Order Form. In any such event, both parties will use best efforts to prioritize and resolve any such issues and restore access to the Service in a timely manner as to mitigate any impact such suspension may impose on You.
We reserve the right to impose a reconnection fee in the event Your access to the Service is suspended and thereafter You request access to be reinstated. You agree and acknowledge that We have no obligation to retain Your data for any time period, and that Your data may be irretrievably deleted if Your account is forty-five (45) or more days delinquent.
E. Intellectual Property Ownership
Time Rack (and its licensors, where applicable) own all right, title and interest, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (“Intellectual Property Rights”), in and to the Service, Content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party (“Feedback”). Furthermore, You agree not to include any third party intellectual property or content in the Feedback You provide. We reserve the right to reproduce, use, disclose, sell, resell, license, sublicense, transfer, modify, make available and distribute such Feedback without any obligation or liability to You. You agree that nothing contained in these Terms grants You any ownership, license and/or other rights in or to the Service, Content, or the Intellectual Property Rights of Time Rack. The Time Rack name, logo, and the product names associated with the Service are trademarks of Time Rack or their respective third parties, and no right or license is granted to use them. All rights not expressly granted to You are reserved by Time Rack and its licensors.
F. Third Party Products and Services
In connection with Your use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors offering their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between You and the applicable third-party advertiser or sponsor. Time Rack and its licensors have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between You and any such third-party. Time Rack does not endorse any sites on the Internet that are linked through the Service. We provide these links to You only as a matter of convenience, and in no event will Time Rack or its licensors be responsible for any content, products, or other materials on or available from such sites. While We provide the Service to You pursuant to these Terms, You recognize that third-party providers of ancillary software, hardware, products and services may require Your agreement to additional or different terms prior to Your use of or access to such third-party software, hardware, products or services.
G. Term and Termination
The initial term of Your use of the applicable Service will be as set forth in each Order Form (the “Initial Term”). This Initial Term will be automatically renewed for successive one (1) year terms (each, a “Renewal Term”) unless either party provides notice to the other of its intention not to renew at least sixty (60) days prior to the end of the Initial Term or any applicable Renewal Term. The Initial Term together with any Renewal Term(s) will collectively be referred to as the “Term”. Either party may terminate this MSA if the other party materially breaches the Terms and such breach, if curable, remains uncured for thirty (30) days from written notice. In the event this MSA is terminated by Us without cause, We will make available to You either available for export or as a downloadable file a copy of Your data available within the Service for thirty (30) days following termination if You so request such data at the time of termination. You agree and acknowledge that We have no obligation to retain Your data for any time period after termination beyond Our standard data retention policies, and We may delete Your data following termination of this MSA at any time unless otherwise mutually agreed.
Any breach of Your payment obligations or unauthorized use of the Service, Content or Intellectual Property of Time Rack that is not cured, if curable, within thirty (30) days of notice of such breach will be deemed a material breach of this MSA. In such event or if any other material breach by You of these Terms occurs, Time Rack, in its sole discretion, may terminate Your access and/or use of the Service. You agree and acknowledge that Time Rack has no obligation to retain Your data for any time period, and may delete such data, if this MSA is terminated due to Your material breach. In the case of a free trial use of the Service, notification provided by Time Rack through the Service indicating the number of days remaining in the free trial will constitute notice of termination. In addition, We may terminate a free trial account at any time in Our sole discretion. In the event of any such termination or expiration of these Terms Sections H, J, K, N, Q and any other provision hereof which, by its nature, would survive the termination or expiration of these Terms will survive and, without limiting the foregoing, both parties obligations to protect Confidential Information (as defined below) and Your obligation to protect the Intellectual Property Rights of Time Rack will remain in full force and effect; provided, however, that, any termination or expiration of these Terms will not absolve a party for any breach of these Terms that occurs prior to such termination or expiration. Other than a material breach on behalf of Time Rack, if this MSA is terminated for any reason, You are obligated to pay the fees due on Your account computed in accordance with these Terms.
Other than Our transmission of Confidential Information to/from third party payroll, human resources and other systems, or as otherwise instructed by You or in conjunction with providing the Service, both parties will only permit access to Confidential Information to those of its employees, consultants, advisors, and other professionals having a need to know and who have signed confidentiality agreements or are otherwise bound by written confidentiality obligations at least as restrictive as those contained herein. “Confidential Information” means all non-public materials and information provided or made available by the disclosing party to the receiving party, including personal information, products, services, screen data, know-how, processes, software programs, research, development, pricing and related discounting, financial information, usage data and information regarding third party relationships.
The obligation to protect Confidential Information will terminate when the receiving party can document that such Confidential Information: (a) was in the public domain at the time it was communicated to the receiving party; (b) entered the public domain subsequent to the time it was communicated to the receiving party through no fault of the receiving party; (c) was in the receiving party’s possession free of any obligation of confidentiality at the time it was communicated to the receiving party; (d) was rightfully communicated to the receiving party free of any obligation of confidentiality subsequent to the time it was communicated to the receiving party; or (e) was developed by employees or agents of the receiving party who had no access to any Confidential Information communicated to the receiving party. Upon expiration or termination of these Terms, the receiving party, upon request of the disclosing party, will promptly return to the disclosing party or certify the destruction of all documents, notes, software and other tangible materials, including all sensitive data, and other materials in electronic form representing the Confidential Information, and all copies and derivatives thereof, subject to reasonable limitations specific to data archival outside the control of the receiving party and any data retention requirements imposed on or applicable to Time Rack as the provider of the Service.
I. Data Privacy
We will use commercially reasonable efforts, and no less than to the degree We protect Our own data, to maintain security, privacy, and breach notification policies and procedures to ensure the privacy, confidentiality, integrity, and protection of Your data from unauthorized access in connection with Your access and use of the Service. Your use and that of Your authorized User(s) of the Service is also subject to the terms of Our Privacy and Acceptable Use Policy, the then current terms of which are incorporated by reference. For the avoidance of doubt, We reserve the right to use anonymized data for the purpose of improving the Service or as We deem appropriate, in our sole but reasonable discretion, to further Our business so long as such anonymized use does not expose Confidential Information belonging to You, or uniquely identifies You or personally identifiable data of an individual.
J. Disclaimer of Warranties
TIME RACK AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. TIME RACK AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TIME RACK AND ITS LICENSORS. YOU FURTHER RECOGNIZE THAT IN THE DELIVERY OF THE SERVICE WE MAY WORK WITH THIRD PARTY PROVIDERS AND CANNOT BE AND ARE NOT LIABLE FOR ISSUES, ACTIONS AND/OR OMMISSIONS ON THEIR PART. FURTHERMORE THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TIME RACK IS NOT RESPONSIBLE FOR ANY DAMAGES OF ANY KIND IN CONNECTION WITH DELAYS, DELIVERY FAILURES, OR OTHER SUCH PROBLEMS.
K. Limitation of Liability
IN NO EVENT SHALL TIME RACK AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES (INCLUDING LOSS OF DATA, LOSS OF REVENUE, LOST PROFIT, USE, COST TO COVER, BUSINESS INTERRUPTION, GOODWILL, LOSS OF DATA OR OTHER ECONOMIC DISADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, CONTENT OR THESE TERMS INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR THE CONTENT, OR ANY INACCURACY, ERROR, OR OMISSION IN THE SERVICE OR CONTENT, AND REGARDLESS OF HOWEVER CAUSED OR THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TIME RACK AND ITS AFFILIATES, CONTRACTORS, SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, ADVISORS, EMPLOYEES, AGENTS AND LICENSORS AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
L. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this MSA. Time Rack represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof, and that the Service will perform substantially, in the aggregate, in accordance with the online Time Rack help documentation under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service, and that Your credit card, banking and other billing information provided is accurate and complete.
M. Mutual Indemnification
You indemnify and hold Time Rack, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim alleging that use of Your data infringes the rights of, or has caused harm to, a third party; (b) a claim, which if true, would constitute a violation by You of Your representations and warranties; (c) a claim arising from the breach by You or Your Users of this MSA; or (d) a claim arising from the combination of the Service with any of Your products, services, hardware, or business processes, provided in any such case that Time Rack (i) gives written notice of the claim promptly to You and (ii) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless Time Rack is unconditionally released from all liability in connection therewith and such settlement does not affect, and would not reasonably be expected to affect, Time Rack’s business or Service).. Time Rack will indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (A) a claim alleging that the Service directly infringes a copyright, a United States patent or a trademark of a third party; (B) a claim, which if true, would constitute a material violation by Time Rack of its representations or warranties; or (C) a claim arising from a material breach of this MSA by Time Rack; provided that You (I) promptly give written notice of the claim to Time Rack and (II) give Time Rack sole control of the defense and settlement of the claim (provided that Time Rack may not settle or defend any claim unless You are unconditionally released from all liability in connection therewith and such settlement does not affect, and would not reasonably be expected to affect, Your business). Time Rack will have no indemnification obligation to You for (1) claims arising from the combination of the Service with any other products, services, hardware, or business processes, (2) Your modification of the Service or Content, or (3) Your use of the Service and/or Content outside the scope of or otherwise in breach of these Terms. In the event that Your use of the Service becomes, or we determine the Service is likely to become, subject to such an infringement action, We may (i) procure for You the right to continue using the Service; (ii) replace or modify the Service so that it performs substantially equivalent functions without infringement; or (iii) if the above options are not reasonably available to Us, We may terminate these Terms and We will refund You pro-rated recurring fees based on the length of the Term remaining for the applicable Service. THIS PARAGRAPH IS SUBJECT TO SECTION K AND IS THE ENTIRE OBLIGATION OF TIME RACK AND ITS SUPPLIERS TO YOU REGARDING ANY CLAIM OF INFRINGEMENT WITH RESPECT TO THE SERVICE, CONTENT AND ANY OTHER INTELLECTUAL PROPERTY RIGHTS. THE INDEMNIFICATION RIGHTS SET FORTH IN THIS PARAGRAPH CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH THIS MSA AND THE TRANSACTIONS CONTEMPLATED HEREBY AND EACH PARTY HEREBY WAIVES ANY REMEDY THAT IT MAY HAVE IN CONNECTION THEREWITH WHETHER AT LAW OR IN EQUITY.
N. Notice Provisions
Time Rack may give notice to You in connection with this MSA by means of: (a) a general notice on the Service; (b) electronic mail to Your e-mail address on record; or (c) by written communication sent by first class postage prepaid mail to Your address on record. Such notice will be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or twelve (12) hours after sending by email. You may give notice to Time Rack, which will be deemed given when received by Time Rack, by written communication sent either by: (i) confirmed email receipt to firstname.lastname@example.org; or (ii) first class postage prepaid mail or a nationally recognized overnight delivery service to Time Rack at 3650 Rogers Rd Suite 359, Wake Forest NC 27587.
O. Modification to Terms
We reserve the right to modify these Terms or Our policies relating to the Service at any time, for any reason, effective upon posting of an updated version of this MSA on our website or within the Service, so long as such modification doesn’t materially impact Your rights under these Terms or Your ability to use the Service. Continued use of the Service after any such change will constitute Your consent to that change.
P. Assignment; Change in Control
This Agreement may not be assigned by You without the prior written approval of Time Rack, except in the event of the sale of Your business or all or substantially all of its assets and such assignee (i) expressly assumes in writing all of Your obligations under these Terms and (ii) such assignee provides written notice to Us within 30 days of any such assignment. Time Rack may assign this MSA and it’s rights under these Terms without condition. Any purported assignment in violation of this section will be void. Time Rack will be entitled to terminate this Agreement for cause immediately upon written notice to You in the event of any actual or proposed change in Your control that results or would result in a direct competitor of Time Rack directly or indirectly having an equity stake in or controlling Your business in any way.
This MSA is governed by North Carolina state law, and where applicable, controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this MSA or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Wake County, North Carolina. You further agree and hereby do waive any right to trial by jury. Both parties hereby agree that a breach of these Terms will cause the other party (“Affected Party”) irreparable damage for which recovery of damages would be inadequate, and that the Affected Party will therefore be entitled to seek timely injunctive relief under these Terms, as well as such further relief as may be granted by a court of competent jurisdiction. No text or information set forth on any purchase order, preprinted form or document (other than an Order Form, if applicable) will add to or vary the terms and conditions of this MSA. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Time Rack as a result of this MSA or use of the Service. Our failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision. This MSA, together with any applicable Order Form and SLA, comprises the entire agreement between You and Time Rack and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.