Last Updated: June 1, 2015
Welcome to TrackSmart! We are an online service providing our members with access to an online employee attendance tracking tool.
These Terms and Conditions are also a resource for you to get a deeper understanding of how our service works, including the way we bill, how we interact with you, and other useful details about our services.
These Terms and Conditions, which include our Privacy Policy and Website Terms of Use govern your use of the TrackSmart service, including all features and functionalities (the “TrackSmart Services”). These Terms and Conditions, our Privacy Policy, and Website Terms of Use are intended to complement each other, and to the extent that they conflict these Terms and Conditions shall prevail. By visiting and/or using the TrackSmart Services, you fully and unconditionally agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, please do not visit or use the TrackSmart Services.
1. SERVICE PLANS. TrackSmart offers several plans for you to choose from. Details of each of the plans offered can be found on our “Pricing & Plans” section of the website. We reserve the right to modify, terminate, or otherwise amend our offered membership plans at any time.
The TrackSmart Services are normally available 24 hours a day. We reserve the right to take measures that affect the aforementioned accessibility where deemed necessary for technical, maintenance, operational, or security reasons.
2. PAYMENT TERMS. By starting your paid membership, you are expressly agreeing that we are authorized to charge you a monthly or annual membership fee, as selected by you during the registration process, at the then current rate, and any other charges you may incur in connection with your use of the TrackSmart Services, for the billing term you selected, to the valid accepted payment method (“Payment Method”) you provided during the registration process (or different Payment Method if you change your account information). Please note that prices and charges are subject to change upon our notice to you. As used in these Terms and Conditions, “billing” shall indicate either a charge or debit, as applicable, against your Payment Method. The membership fee will be billed at the beginning of the paying portion of your membership and each renewal date thereafter unless and until you cancel your paid membership. Visit our website and go to the Account Settings page to see your account information, including the commencement date for your next renewal period, or make any changes. We automatically bill your Payment Method each month or year on the calendar day corresponding to the commencement of your paying membership, as selected during the upgrade process. In the event your paying membership began on a date not contained in a given month, we will bill your Payment Method on the last day of such month. For example, if you started your TrackSmart membership or became a paying member on January 31st, your next payment date is February 28th and your Payment Method would be billed on that date. You acknowledge that the amount billed each month may vary from month to month for reasons that may include differing amounts due to promotional offers, and you authorize us to charge your Payment Method for such varying amounts.
PAYMENTS ARE NON REFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. We may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email or by posting them on the website. If you want to use a different Payment Method or if there is a change in Payment Method, such as your credit card validity or expiration date, you may edit your Payment Method information in your account page online or by calling us at 877-457-4855. If your Payment Method reaches its expiration date and you do not edit your Payment Method information or terminate your account (see, “Termination” below), you authorize us to continue billing that Payment Method and you remain responsible for any uncollected amounts or to terminate your account, as determined by us in our sole discretion.
Your membership will continue month-to-month or year-to-year unless and until you cancel your membership or we terminate it, as described in the termination section. Cancellation or termination will be effective the first day of the next billing cycle following the date we receive your cancellation notice or we provide notice to you. You must cancel your membership before it renews each month in order to avoid billing of the next billing term membership fees to your Payment Method.
You shall be responsible for paying all sales, use, transfer, privilege, excise and all other taxes or duties levied or imposed by reason of the performance by HR Direct under this Agreement, excluding income taxes on profits, which may be levied against HR Direct.
3. SECURITY AND PASSWORDS. The member who created the TrackSmart account and whose Payment Method is charged is referred to here as the Account Owner. The Account Owner’s control is exercised through use of the Account Owner’s password and therefore to maintain exclusive control, the Account Owner should not reveal the password to anyone. The Account Owner represents that all information he/she provides in connection with his/her registration is correct and legitimate.
You acknowledge that we shall not be responsible for loss or distortion of information provided through the TrackSmart Services (“Content”).
The Account Owner shall ensure that identities, passwords, and equivalent obtained by the Account Holder are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Account Owner shall be liable for any unauthorized use of the TrackSmart Services.
4. TERMINATION - We reserve the right to terminate your use of the TrackSmart Services at any time upon notice to you.
You may terminate your account at any time by clicking “Cancel Your Account” in the Account Settings screen of the website. Your account will be terminated at the end of the billing cycle.
Upon termination, you acknowledge and agree that we shall not be responsible for the Content generated within the scope of the TrackSmart Services. We may delete and destroy any such Content within thirty (30) calendar days following termination, or upon our receipt of your written request to delete such Content. It shall be your responsibility to take steps to back-up such Content.
5. REVERSE ENGINEERING. You may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the TrackSmart Services, in whole or in part. You may not duplicate or copy any portion of the TrackSmart Services, unless otherwise set forth herein. You may not remove any proprietary notices or labels, including, but not limited to, the HR Direct product names wherever they may appear. All rights not expressly set forth hereunder are reserved by HR Direct. HR Direct reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this Agreement.
6. WARRANTY DISCLAIMER. The TrackSmart Service is being delivered "AS IS" and HR Direct makes no warranty as to its use or performance. Client shall assume all responsibility for the selection of the TrackSmart Service as appropriate to achieve the results you intend and for the installation of, use of, and results obtained from the TrackSmart Service. HR DIRECT DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE TRACKSMART SERVICE. HR DIRECT MAKES NO WARRANTY THAT THE TRACKSMART SERVICES WILL BE ERROR-FREE, VIRUS FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE TRACKSMART SERVICES WILL MEET YOUR REQUIREMENTS. HR DIRECT MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
7. COMPLIANCE WITH APPLICABLE LAWS. You represent and warrant to HR Direct that you will use the TrackSmart Services provided by HR Direct only in accordance with all applicable laws, rules and regulations of any governmental authority having jurisdiction regarding such use and in accordance with the terms of these Terms and Conditions, and you will indemnify, defend and hold HR Direct harmless from any claim, suit or cause of action and any damages and costs (including attorney fees) incurred by HR Direct related to any breach of the foregoing representation and warranty or this Agreement.
8. LIMITATION OF LIABILITY. IN NO EVENT, CIRCUMSTANCES, OR UNDER NO LEGAL THEORY SHALL HR DIRECT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES) ARISING OUT OF USE OF OR INABILITY TO USE THE TRACKSMART SERVICES, EVEN IF HR DIRECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HR DIRECT BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE PRICE PAID TO HR DIRECT FOR THE PRODUCT.
9. FORCE MAJEURE. This Agreement shall not terminate and HR Direct shall not be liable for any disruption or failure to provide the services, software, or other items herein contemplated if caused by a force majeure event, act of God, war, declaration of government, cyber and/or hostile network attacks, or other natural event beyond the control of HR Direct.
10. MISCELLANEOUS. This Agreement shall be deemed to have been negotiated, made and entered into in the State of Minnesota and any and all performance hereunder, or breach thereof, shall be interpreted, governed and construed pursuant to the laws of the State of Minnesota without reference to its choice of law provisions. The parties hereto hereby acknowledge and consent to personal jurisdiction and venue exclusively in Nicollet County, Minnesota (in a federal or state court of competent jurisdiction) with respect to any action or proceeding brought in connection with these Terms and Conditions. These Terms and Conditions shall be binding upon the parties, their representatives, successors, administrators and assigns. These Terms and Conditions and the TrackSmart Services, rights and obligations herein may not be assigned or delegated in whole or part by either of the parties to any third party without the prior written consent of both of the parties. The parties are independent contractor and are not an employee, agent or representative of the other party and this Agreement does not constitute a partnership, joint venture, agency, employee/employer, or any other similar relationship between the parties. These Terms and Conditions constitutes and contains the entire agreement between the parties with respect to the subject matter herein, supersedes all prior written or oral understandings and agreements relating thereto, and may not be changed, modified, amended or supplemented, except on written consent of both parties. All terms and conditions of this Agreement that would, by their nature, survive the expiration or termination of this Agreement, shall so survive.
