Date of Last Update: July 4th, 2023
Timely Limited (“Timely”) requires users (“Customer”) of its services and software, to accept and adhere to these terms and conditions (the “Agreement”). This Agreement governs the purchase and use of Timely’s services and by accessing or using any part of the services, Customer is agreeing to the terms and conditions described below. Timely may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Timely. If Customer continues to use or receive the services following such period, the updated Agreement will be deemed accepted.
1.1. Rights for Use. The services include the right to use the Timely software programs and support services, for purposes including, but not limited to Web application (accessed on any web browser), Native iOS apps (Timely, Consult, Stock management), PWA Android app, TimelyPay payment gateway, TimelyPay Terminals, the Payment Processing Services (as defined below), onboarding and data import services, and premium support (collectively, the “Services”). Subject to the terms and conditions of this Agreement, Timely hereby grants Customer the limited, non-exclusive, non-transferable, nonsublicenseable, limited, worldwide right to access and use the Services solely for Customer’s business purposes.
1.2. Accounts; Security. Access to or use of certain portions and features of the Services may require Customer to create an account (“Account”). Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its account(s), including Customer’s password. Accounts are not transferrable, excluding if Customer’s business undergoes a change of ownership or control. Customer agrees to promptly notify Timely if Customer becomes aware or suspects any unauthorized use of its account(s), including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the account(s). Any sharing of such data to reduce the number of licenses required or sharing account information in any way is strictly prohibited.
1.3. Restrictions on Use. In accessing or using the Services, Customer will not: (a) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (b) apply systems to extract or modify information in the Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (c) knowingly input or post through or to the Services any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others; (d) store data on the Services that is regulated by the HIPAA Privacy Rules or any other applicable data privacy law or regulation; (e) store credit and debit card transaction data in the Services in a manner that violates the PCI Data Standards; (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Timely in any way; or (j) permit any third party to use or access the Services other than Customer’s direct employees or contractors who are acting on Customer’s behalf.
1.4. Maintenance. Customer agrees that Timely may make any modifications to the underlying software and Services that Timely deems necessary without prior notification to customers All such modifications will be considered part of the Services for purposes of this Agreement.
1.5. Applicable Laws. Customer’s access to and use of the Services is subject to all applicable laws and regulations (including without limitation any local laws or regulations in Customer’s country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the country in which this website resides or the country in which Customer resides). Customer may not use the Services or any information data or Customer Content in violation of or to violate any law, rule, or regulation. Ensuring Customer’s use of the Services are compliant with applicable laws is the responsibility of Customer, and obtaining all required authorizations (including establishing all required terms and conditions) for payments processed via the Service. Customer also agrees that it will comply with the relevant portions of the Payment Card Industry (PCI) Data Security Standard (“PCI”) when collecting, accessing, storing, processing or otherwise using credit card information from Customer’s end users.
1.6. Suspension of Services. Timely has the right to immediately suspend the Services (a) in order to prevent damage to or degradation of the Services or unauthorized or non-compliant use, (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Timely, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Timely will give Customer prior notice if reasonable and will ensure that the Services are restored as soon as possible after the event given rise to suspension has been resolved to Timely’s reasonable satisfaction.
2.2. Aggregated Data. Customer agrees that, subject to Timely’s confidentiality obligations in this Agreement, Timely may (a) capture data regarding the use of the Services by Customer and its end users, (b) collect metrics and data included in the Customer Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Timely may use, reproduce, distribute, and prepare derivative works from the Customer Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Timely use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
Except as otherwise agreed by Timely in writing, Customer is prohibited from linking to, modifying, or embedding the Services, or any portion of the Services, Timely reserves the right to disable any unauthorized links, scripts or frames targeting the Services. Timely will not be responsible and expressly disclaims any liability for any third-party services that Customer may use or connect to through the Services. If Customer activates any connections in the Services to third-party services or APIs, Customer thereby authorizes Timely to send and receive Customer Content with any such activated third-party service and represents and warrants to Timely that Customer has all appropriate right and title to grant such authorization.
4.1. Proprietary Rights. Timely’s intellectual property, including without limitation the Services, its trademarks and copyrights and excluding any Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Timely and its licensors. No additional licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
4.2. Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Timely related to the Services are given to Timely and may be used by Timely freely and without restriction and will not enable Customer to claim any interest, ownership, or royalty in Timely’s intellectual property.
5.1. Customer agrees to pay Timely the subscriptions fees, and any other applicable fees, for the subscription Customer selected as specified on the Timely website during the registration process. All subscriptions fees will be automatically billed to Customer’s payment card. Customer hereby authorizes all such charges. Fees are charged in advance on a monthly basis. In the event Customer fails to pay any amount when due, Timely may suspend or terminate this Agreement and Customer’s access to the Services. If the fees are not received by Timely according to the terms and conditions of this Agreement, Timely will provide e-mail notice to Customer regarding this situation and will extend a grace period of not more than twenty (20) days (beyond original due date) for all overdue payments. If overdue payments are not received within said grace period, in addition to all other remedies that may be available: (a) Customer shall reimburse Timely for all reasonable costs incurred by Timely in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; (b) Timely may disable, or withhold, suspend or revoke its grant of a rights, or performance of Services relating to until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of any such action; and (c) Timely may terminate this Agreement.
5.2. All fees for the Services are non-cancelable and non-refundable. There will be no refunds or credits for partial use of the Services, upgrade/downgrade refunds, nor refunds for months unused with an active account. Purchased SMS credits will not be refunded, including as a result of cancellation. Downgrading Customer’s Services may cause the loss of content, features, or capacity of Customer’s Account. Timely does not accept any liability for such loss. Customer is responsible for all fees of any renewals relating to Customer’s Account until such time as Customer’s Account or this Agreement are terminated as specified herein.
5.3. Customer shall be responsible for complying with all applicable laws and industry standards relating to the processing, storage, and transmission of financial account information and credit and debit card transaction data, including the Payment Card Industry Data Security Standards (PCI DSS). Customer represents and warrants that any financial account information and credit and debit card transaction data stored in the Services shall be done so in compliance with PCI DSS and any instructions from Timely, and that any such storage shall be solely for the purposes of processing transactions in accordance with this Agreement. Customer acknowledges that Timely has no liability for any breach of PCI DSS or any unauthorized use, access or disclosure of credit and debit card transaction data resulting from Customer’s failure to comply with such standards or any other obligations set forth in this Agreement. Timely reserves the right to suspend or restrict Customer’s Account or Customer’s use of the Services if credit card or other financial account details are detected in other areas such as booking, or its customer note fields. Timely fees do not include any local, state, federal or foreign taxes, levies or duties of any nature. Including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Timely may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Timely with a valid tax exemption certificate authorized by the appropriate taxing authority.
All service Fees are non-cancelable and non-refundable for the entire Term. There will be no refunds or credits for partial use of the Services, upgrade/downgrade refunds, nor refunds for months unused with an active account. Purchased SMS credits will not be refunded, including as a result of cancellation. Downgrading your Services may cause the loss of content, features, or capacity of your Account. Timely does not accept any liability for such loss. Customer is responsible for all Fees of any renewals relating to your Account until such time as your Account or these Terms are terminated as specified herein.
You are solely responsible for any liability resulting from your handling of credit card information. You agree that you will comply with PCI DSS anytime the Services are used to process credit cards. You agree to only store credit card details in the secure credit card platforms provided by Timely (e.g., TimelyPay or fields explicitly stating you can enter credit card details). Timely reserves the right to suspend or restrict your Account or your use of the Services if credit card details are detected in other areas such as booking, or your customer note fields.
Timely makes available to Customer a free trial at no charge to Customer. This Agreement applies to Customer’s use of any free trial. Any free trial is provided “As Is” with no warranties of any kind. Timely is not responsible for any of Customer’s, or Customer’s end users’ data, including retention or return, when Customer or Customer’s end users’ use or access free trial. Timely may discontinue, or suspend Customer’s use of, any free trial at any time, with or without notice and without any further obligations or liability to Customer. The free trial will begin the day the account is opened and will end at the earlier of:
7.1.Timely may modify, add, change, suspend, remove, or stop the Services, or any features or functionality, from time to time, in Timely’s sole discretion. Timely may choose to do so at any time without any notice to the Customer. Timely may also change features or impose additional limitations as Timely deems appropriate.
7.2.Prices for all paid plans of the Services, including, but not limited to monthly subscription plan fees, are subject to change upon 30 days’ notice from Timely. Such notice may be provided by posting the changes to the Site or the Services itself. Timely shall not be liable to Customer or to any third party for any modification, price change, suspension, or discontinuance of the Services.
Stripe Services Agreement
8.2. Customer agrees to pay the fees for the Payment Processing Services that are set out on https://www.gettimely.com/timelypay/ , or alternatively provided to Customer in writing (email shall suffice) by Timely, which are incorporated herein by reference (the “Processing Fees”). Processing Fees shall be collected from Customer by Stripe on Timely’s behalf in accordance with the terms of the Stripe Connected Account Agreement. Timely reserves the right to change the fees for the Payment Processing Services at any time, subject to a thirty (30) day notice period to Customer. If Customer continues to use the Payment Processing Services for such thirty (30) days, then Customer is deemed to have accepted the change in fees contemplated by such notice.
8.3. Customer agrees to use the Payment Processing Services in accordance with all procedures that may be provided by Timely from time to time.
8.4. POS Equipment is purchased, and not leased. Upon payment by Customer for the POS Equipment, and confirmation of shipment, Customer will acquire ownership of and title to the hardware components of the POS Equipment. Timely, at its option, may provide Customer with the POS Equipment at no cost to Customer, subject to the terms and conditions of this Agreement. If Timely provides Customer with POS Equipment without charge to the Customer and the Customer uses the POS Services for less than one-year or does not use the POS Services within thirty days of receiving the POS Equipment, Timely reserves the right to charge Customer the then-current retail price of the POS Equipment.
8.5. Customer may return the POS Equipment in its original packaging and condition (including all accessories and components) within 30 days after the date of Customer’s purchase. To begin the return process, please contact Timely at [email protected] Timely will provide Customer with return shipping instructions.
8.6. If Customer experiences any issues with the POS Equipment within one year of purchasing the POS Equipment, please notify Timely promptly. In Timely’s sole discretion, Timely may replace or refund the defective equipment. Timely will only consider fulfilling Customer’s request for a return or refund with respect to the unaltered hardware components of the POS Equipment that are used in accordance with this Agreement and all other applicable terms (including the Stripe Services Agreement) and are not subject to accident, misuse, or neglect. To request a return or refund, please contact us at [email protected]. Timely will provide information about how to return the equipment and obtain replacement equipment. Please note that Timely’s return policy is subject to change and may be updated from time to time at Timely’s discretion.
8.7. While the Payment Processing uses encryption technology, Timely cannot guarantee security with respect to the connection to the Payment Processing Services, and Timely will not be liable for any unauthorized access to or use of data transmitted via the Payment Processing Services. To the maximum extent permitted by applicable law, Timely makes no warranties, express or implied, with respect to the Payment Processing Services. Timely does not warrant that the Payment Processing Services or POS Equipment will be uninterrupted or error-free, or that it will meet Customer’s requirements. Customer acknowledges and agrees that Timely is not responsible for any issues or disputes that may arise from Customer’s use of the Stripe Payment Processing Services or the POS Equipment.
9.1. This Agreement will continue to apply to Customer until terminated by either it or Timely. Timely may terminate this Agreement (including any additional terms and conditions incorporated herein) or suspend Customer’s access to the Services at any time if Timely believes Customer has breached any of the terms and conditions of this Agreement, if Timely stops providing the Services or any material component thereof, or as Timely believes necessary to comply with applicable law. If Customer or Timely terminate this Agreement, or if Timely suspends Customer’s access to the Services, Customer agrees that Timely shall have no liability or responsibility to Customer, and (except as expressly provided in this Agreement) Timely will not refund any amounts that Customer has already paid. Customer may terminate this Agreement at any time (by completing the cancellation process in the app), in which case Customer may not continue accessing or using the Services. All of Customer’s rights granted under this Agreement will immediately come to an end; and all of Customer’s data and content may be deleted from Timely’s systems (on request).
9.2. Timely provides no guarantee that Customer’s content can be recovered once Customer’s Account is cancelled. Timely is not liable for any loss or damage following, or as a result of, cancellation of Customer’s account, and it is Customer’s responsibility to ensure that any content or data which Customer requires is backed-up or replicated before cancellation.
10.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Services, all features, and functions thereof and related pricing and product plans will be the Confidential Information of Timely.
10.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
10.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
TIMELY DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT TIMELY WILL CORRECT ALL ERRORS OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. TIMELY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER CONTENT OR THIRD-PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. TIMELY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL TIMELY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. TIMELY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO TIMELY IN THE 1 MONTH PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF TIMELY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
Customer agrees to defend and indemnify Timely and its affiliates from and against any legal action, demand, suit, or proceeding brought against Timely or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Services.
Customer hereby consents to Timely identifying Customer as a customer by name and logo in Timely’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Timely will have 30 days to process Customer’s request.
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Timely. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
Timely will send notices to one or more contact(s) on file for Customer. Notices from Timely, other than for a breach of this Agreement may be provided within the Services.
In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness, and attorneys’ fees.
This Agreement shall not be construed to create a partnership, joint venture, franchise, or agency relationship between the parties, and neither party may bind or obligate the other party or make representations on the other party’s behalf.
This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express, or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
This Agreement is governed by and will be construed in accordance with the laws of New Zealand and each party irrevocably submits to the exclusive jurisdiction of the courts of New Zealand.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
This Agreement, including the documents it incorporates by reference, constitute the entire agreement between Customer and Timely and govern Customer’s use of the Services, superseding any prior agreements between Customer and Timely (including, but not limited to, any prior versions of the Agreement).