Terms of Service / Terms of Use
Last Updated: March 13, 2024
All customers agree to the following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Terms of Service,” “Terms of Use” or “Terms”). PLEASE READ CAREFULLY. BY INDICATING YOUR ACCEPTANCE, YOU ARE AGREEING THAT YOU OR YOUR COMPANY OR OTHER ENTITY YOU REPRESENT WILL BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICES.
Customer Service Agreement
These Terms of Service are entered into by and between Buddy Punch LLC, a Wisconsin limited liability company (“buddypunch.com,” the “Company” or “Buddy Punch”) and you or the company or other entity you represent (“Customer,” “You,” or “Your”). The Company and the Customer are collectively referred to herein as the “Parties” and singularly as a “Party”.
1. Provision of Service.
(a) Buddy Punch will provide Customer access to its Internet-based service (the “Service”) which will permit the processing, retrieval, and transmission of transaction data submitted by Customer (the “Customer Data”) pursuant to these Terms. Buddy Punch reserves the right at any time and in its sole discretion to change Service features and functionalities, as well as these Terms of Service. Such modification of the Service and amendment of these Terms will be effective immediately and incorporated herein. Your continued use of the Service thereafter will be deemed acceptance of such changes. You are expected to check these Terms from time to time so you are aware of any changes, as they are binding on you.
(b) Customer is responsible for its own compliance with these Terms, including without limitation the compliance of its employees, officers, agents, and any third party Customer invites to participate in and use the Service.
2. Fees, Payments & Refunds.
(a) Customers using the Service will be charged a fee as set forth on the Company’s website, buddypunch.com (the “Website”). The Service fees and charges may be changed by Buddy Punch from time to time by sending Customer notification, in electronic, paper or any other form, or by posting an updated fee schedule on the Website at least thirty (30) days prior to changes. Customer agrees that Buddy Punch will charge said fees and charges directly to Customer’s credit card on file with Buddy Punch. Customer will be notified of any credit card billing failure via electronic mail, invoice, or any other means available to Buddy Punch, and agrees to pay all such amounts within thirty (30) days of receipt of such notice. Customer will be liable for attorneys’ and collection fees arising from Company’s efforts to collect unpaid balances.
(b) The Service is billed in advance on a monthly or annual basis, depending on the pricing option selected, and is non-refundable. There will be no refunds or credits for partial months of Service, upgrade or downgrade refunds, or refunds for months unused with an open account. Annual plans cannot be downgraded until the annual term has expired.
(c) All fees are exclusive of all sales and use taxes, levies or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such sales and use taxes, levies, or duties.
(d) You must provide current, complete and accurate payment information. You must promptly update all payment information to keep Your account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date), and you must promptly notify Buddy Punch if your payment method is canceled (including if you lose your credit card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). Changes to such information can be made inside your account dashboard under “Settings –> Billing”. If you fail to provide Buddy Punch any of the foregoing information, you agree that you are responsible for fees accrued on your account. In addition, you authorize us to obtain updated or replacement credit card expiration dates and numbers as may be provided by Your credit card issuer or other by legal means.
3. Limitations on Use of Service and Service Software.
(a) As used herein, “Software” refers to any software incorporated into the Service. Customer will not, and will not permit, assist, or allow others to, reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code. Customer will not modify or attempt to modify the Software or sublicense or charge others to use or access the Software or the Service. Customer will not use the Software or the Service in any way not expressly authorized by these Terms. Customer shall have no right, title or interest in and to the Software which rights of ownership will always be held by Buddy Punch.
(b) Customer acknowledges that the Services are not intended for permanent storage and agrees not to use the Service for archiving or back-up purposes. Customer will not store “mission critical” data on the Service, including without limitation data pertaining to power generation, military or national security, or any function to sustain or rescue the health or well-being of any person.
(c) From time to time, Buddy Punch may add new features to the Service that are described as “beta” (“Beta Features”). Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional features of the Service. If Customer elects to use a Beta Feature, it does so at its own risk. Notwithstanding the provisions of the first sentence of Section 3(a), above, Buddy Punch does not warrant that the Beta Features will be provided with due care. Customer will back-up all data it adds to the Beta Features and will not rely upon the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Section 3(c), the Beta Features will be considered part of the Service and all provisions of these Terms relating to the Service will apply to the Beta Features.
(d) Customer may not use the Service (i) in violation of these Terms; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation; (iv) to store or post defamatory, inflammatory, trade libelous, threatening, or harassing data; (v) to store or post obscene, pornographic or indecent content or data; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, trojan horses, spyware, worms, other malicious or harmful code. Customer may not use the Service in any application that may involve risks of death, personal injury, property damage or environmental damage. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Service. Customer may access the Service only through the interfaces and protocols provided or authorized by Buddy Punch. Customer may not compile or use the Company provided materials or any other information obtained through the Service or the Website for the purpose of unsolicited direct marketing, spamming, unsolicited contacting of customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
4. Third-Party Provider Additional Terms.
The Service may contain links to other products and services provided by third parties. Certain of these third-party providers require Buddy Punch to pass additional terms through you as the Customer. These third-party terms are subject to change at such third party’s discretion and new third party providers are added from time to time. Please find, below, the current third-party additional terms for our Service. Customer’s use of our Service constitutes your agreement to be bound by these third-party terms which are incorporated into these Terms by this reference. Links are provided for your convenience only. We have no control over the contents of third-party provider products and services, and accept no responsibility for them or for any loss or damage that may arise from Customer’s use of them. If Customer decides to access any of the third-party products or services linked to the Service, Customer does so entirely at its own risk and subject to the terms and conditions of use for such products and services. Customer must obtain all prior approval for control and redistribution of third-party provider data, software or services. Customer is responsible for any and all costs and fees associated with agreements entered into with any such third-party provider. If a third-party provider ceases to make its service available to Buddy Punch or requires Buddy Punch to suspend or terminate the provision of all or any part of its services to you, or if Buddy Punch terminates its arrangements with any third-party service provider, then Buddy Punch may suspend or terminate that part of the Service immediately without notice or further obligation to Customer. Third-party providers do not warrant that the provision of their data, software or services will be uninterrupted, error free, timely, complete or accurate, nor do any of them make any warranties as to the results to be obtained from the use of the same.
CHECK
Check Technologies, Inc. (“Check”) provides a payroll service to Buddy Punch customers. Check is an unaffiliated third-party vendor.
The terms set forth in https://www.checkhq.com/terms apply to all Customers accessing and using the services and products provided through Check.
5. Security, Privacy, and Access.
(a) Each Party will promptly notify the other of any unauthorized access to or use of Customer Data or passwords. The Parties will use reasonable efforts to take remedial measures to address any such unauthorized access. Pursuant to the terms of Section 7, below, Buddy Punch will not be liable for any damages (direct, incidental or consequential of any kind) incurred by Customer arising out of or related to use of the Service, including without limitation in connection with any unauthorized access to or disclosure of Customer Data, resulting from the actions of Customer, any third party, or from the failure of electronic or other security measures. Customer acknowledges and agrees that notwithstanding the foregoing provisions of this Section 5(a), Buddy Punch may transfer Customer Data to any successor in interest of Buddy Punch or to any third-party service provider listed in Section 4, above.
(b) Buddy Punch has no obligation to monitor the Service. Buddy Punch has the right to monitor the Service and to disclose any information arising out of it, including without limitation Customer Data, as necessary to satisfy any law, regulation, or demand of government or of internal auditors or to protect Buddy Punch or its customers. Buddy Punch may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, in violation of these Terms, or otherwise unacceptable. However, Buddy Punch has no obligation to remove any such materials.
(c) Customer will not use the Service to transmit or store any data that may be considered obscene or pornographic, that contains defamatory material, or that violates federal, state, or local law.
(d) Customer will not disclose any account passwords to any third party not authorized to use the Service, and agrees that all information it provides to register with the Service or otherwise, including, but not limited to, through the use of any interactive features on the Service, is confidential. Customer shall immediately report to Buddy Punch any and all instances of lost, stolen and/or unauthorized used of any of Customer’s Buddy Punch access credentials, including, without limitation, passwords and usernames.
(e) Buddy Punch will collect, use, and share your information in accordance with its Privacy Policy. Your acceptance of these terms and conditions means that you have read and agree with the terms of the Privacy Policy.
6. General Representations and Warranties.
(a) Each Party hereto represents and warrants that (i) it has the full right, power and authority (including corporate right, power and authority, as applicable) to enter into these Terms, (ii) the acceptance of these Terms and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and (iii) when accepted these Terms will constitute the legal, valid and binding obligation of such Party, in accordance with its terms.
(b) In connection with the subject matter of these Terms, Customer agrees to comply with all applicable federal and state laws and regulations.
(c) Customer represents, warrants and covenants: (i) that Customer is solely responsible for its Customer Data, including without limitation, the security of such Customer Data; and (ii) that Customer has the necessary rights and licenses, consents, permissions, waivers and releases to use its Customer Data.
(d) Customer represents and warrants that: (i) the information Customer provides in connection with registering for the Service is accurate, complete and in compliance with the requirements hereunder; (ii) if Customer is registering for the Service as an individual, that Customer is at least eighteen (18) years of age and has the legal capacity to enter into these Terms; and (iii) if registering for the Service as an entity or organization, (1) such entity or organization is duly authorized to do business in the country or countries where it operates, (2) the individual accepting these Terms and completing the registration for the Service on behalf of the Customer meets the requirements of clause (d)(ii), above, and is an authorized representative of such entity or organization , and (3) the employees, officers, representatives and other agents of such entity or organization accessing the Service are duly authorized to access the Service and to legally bind such entity or organization to these Terms.
7. No Warranty; Limitation of Liability; Release.
(a) BUDDY PUNCH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SERVICE AND PERFORMANCE THEREOF, AND WITH RESPECT TO THE SERVICE AND BUDDY PUNCH’S PERFORMANCE UNDER THESE TERMS, SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUDDY PUNCH DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR THE SERVER(S) THAT MAKE IT ARE AVAILABLE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET CUSTOMERS NEEDS OR EXPECTATIONS. THE FORGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
(b) With respect to Defense Contract Audit Agency (DCAA) compliance issues, due to the evolving nature of federal regulations, Buddy Punch cannot make, and DOES NOT MAKE, any warranty, express or implied, that the Service will be DCAA compliant and Customer is encouraged to seek advice and proper counsel from persons specializing in DCAA audit and compliance matters to insure Customer compliance with DCAA requirements.
(c) Furthermore, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION BUDDY PUNCH’S NEGLIGENCE, WILL BUDDY PUNCH BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR TO THE USE OR INABILITY TO USE THE SERVICE.
(d) IN NO EVENT WILL BUDDY PUNCH’S TOTAL LIABILITY FOR ANY DAMAGES, LOSSES, CAUSES OF ACTION, AND RELATED ATTORNEY FEES, WHETHER ARISING IN CONTRACT, TORT, OR EQUITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO BUDDY PUNCH IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE CLAIMED INJURY OR DAMAGE.
(e) Buddy Punch is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Service. Buddy Punch is not liable for the loss of any Customer Data.
(f) Customer’s sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of Buddy Punch LLC is to discontinue using the Service.
(g) To the fullest extent permitted by law, Customer hereby releases Buddy Punch from any and all responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out disputes between users and the acts of omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if know by him or her must have materially affected his or her settlement with the debtor.
8. Indemnification.
Customer will indemnify and hold harmless Buddy Punch and its affiliates, employees, officers, managers, directors, members, stockholders, agents, licensors, successors and assigns from all damages and liability, including without limitation reasonable attorneys’ fees, incurred as a result of (i) customer’s violation of its obligations under these Terms; (ii) the negligent or willful acts of Customer, or (iii) the violation by Customer of Buddy Punch’s or any third party’s rights, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, and claims for libel, slander, or unfair trade practices in connection with the use or operation of the Service. Customer’s obligation to indemnify will survive the expiration or termination of these Terms by either Party for any reason.
9. Termination and Cessation of Service.
(a) Either Party may terminate these Terms at any time. The following obligations will survive the termination of these Terms for any reason: (i) indemnification obligations set forth in Section 8, above; (ii) obligations to make payments of amounts that become due under these Terms before termination; and (iii) any other provision hereof where the context of such provision indicates an intent that it will survive the term or termination of these Terms of Use.
(b) Buddy Punch may deny or may temporarily suspend Customer access to all or part of the Service without notice if Buddy Punch believes, in its sole discretion, that Customer may have violated any of these Terms.
(c) Upon termination of these Terms, Buddy Punch will store and retain Customer Data for a limited time period as may be necessary, and may, in its discretion, store and retain such data for any time period permitted under applicable law. Notwithstanding the foregoing, to meet our internal data minimization standards, Buddy Punch reserves the right to delete Customer Data, including, without limitation, Customer’s user’s time keeping records and other records related to individual user’s transactions within our platform thirty (30) days after termination or cessation of service by Customer, unless otherwise agreed to in writing or as directed by court order. While such data is stored post-termination of these Terms, Buddy Punch will not willingly disclose the data to any third party unless authorized by Customer, or as may be permitted by these Terms.
10. Interruption of Service.
(a) BUDDY PUNCH WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO INTERRUPTION OF, OR DEFECTS IN TRANSMISSION OF, THE SERVICE, including without limitation interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of payments will be made in the case of temporary interruption of or defects in transmission of the Service.
(b) Buddy Punch will not be liable for interruption of or delays in transmission of the Service caused by acts of God, fire, water, riots, acts of Government, acts or omissions of Internet backbone providers, or any other causes beyond Buddy Punch’s control.
11. Customer Data.
All Customer Data, however created, is the sole and absolute property of the Customer. Notwithstanding any other provision of these Terms, Customer grants to Buddy Punch and its subsidiaries, affiliates, licensees and assigns a non-exclusive, irrevocable and perpetual license to use, reproduce and otherwise exploit and search the Customer Data:
(a) for the purposes of providing the Services to the Customer and for any purposes which Buddy Punch considers are ancillary to its provision of the Services or are otherwise necessary for the proper operation of the Website;
(b) in accordance with Buddy Punch’s Privacy Policy;
(c) for the purposes of contacting Customer or its authorized user (an “Authorized User”) in relation to and providing Services to the Customer or its Authorized Users and/or any service offering outside of the Website subject to Sections 12(b)(2), 12(d)(2) and 12(e)(3), below;
(d) to determine whether any Customer Data or use of the Website by Customer or its Authorized Users is illegal or violates these Terms; and/or
(e) to generate statistical or other information used by Buddy Punch (or its subsidiaries, affiliates, licensees or assigns) or provided to third parties directly or indirectly through incorporation in a database, marketing list, report or otherwise; however any use of the Customer Data under this Section 11(e) will be in an aggregate or statistical composite form and combined with other similar information, and will not specifically identify Customer or any of its Authorized Users, employees or clients. This authorized use, and the right to keep backup copies of Customer Data, continues after the termination or expiration of these Terms.
12. Copyright Infringement.
(a) Buddy Punch respects the intellectual property of others, and we ask our Customers to do the same If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Buddy Punch of your infringement claim in accordance with the procedure set forth in Section 12(b), below.
(b) Buddy Punch will process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe anything on the Service is unlawfully infringing the intellectual property rights of others or any copyright that you own or control, a notification of claimed copyright infringement should be emailed to Buddy Punch at [email protected] (Subject line: “DMCA Takedown Request”). The requirements of proper takedown notification are set forth at 17 U.S.C. §512(c)(3).
13. Biometric Data Policy.
As part of the Buddy Punch Application (“App”), if you or your users use Face ID on an Apple device for login and authentication purposes, scans of facial geometry may be stored on such Apple devices. Facial information used in this way is beyond the scope of Buddy Punch’s collection, use, safeguarding, storage, retention, and destruction of such information, which may be considered Biometric Data under certain state and international laws. Your rights and Apple’s obligations concerning such data is governed under your or your users’ agreements with Apple. As such, you waive, discharge and/or release all claims, damages, liabilities and/or causes of action against Buddy Punch relating to such information and its processing.
14. Miscellaneous.
(a) These Terms, along with the Privacy Policy, constitutes the entire agreement between Buddy Punch and Customer regarding the subject matter hereof and expressly supersedes any prior or contemporaneous written or oral agreements between the Parties regarding the subject matter hereof, including without limitation any offer, purchase order, or other similar instrument in writing. these Terms of Use may not be amended, altered, or changed except by a written agreement signed by the duly authorized representatives of both Parties.
(b) In the event that any provision of these Terms are held to be unenforceable, such provision will be construed as nearly as possible to reflect it original intent and the remainder of these Terms will remain in full force and effect.
(c) Customer’s rights under these Terms are personal and are not assignable. Buddy Punch may assign its rights and obligations under these Terms to third parties.
(d) Buddy Punch is controlled, operated and administered primarily from its offices within the United States of America. Buddy Punch makes no representation that the Website is appropriate or available for use at locations outside of United States of America and access to the Website from territories where their contents are illegal is prohibited. Customer may not use the Website or export any materials therein in violation of United States of America export laws and regulations. If Customer accesses the Website from locations outside of United States of America, Customer is expressly consenting to the processing of any data and information that is Provided to Buddy Punch, including, without limitation, the personal information of Customer’s users, and Customer is responsible for, and shall hold Buddy Punch harmless in connection with, compliance with all local laws concerning such information.
(e) These Terms of Use shall be governed by the laws of the State of Wisconsin, United States of America
(f) The Parties agree that any claim, controversy, or dispute arising out of or relating to these Terms will be settled by binding arbitration in Brown County, Wisconsin, USA, before a panel of three arbitrators, with Buddy Punch selecting one arbitrator, Customer selecting one arbitrator, and the two chosen arbitrators mutually selecting a third arbitrator. The terms and conditions of the arbitration shall be as agreed to by the Parties and arbitrators, and if they cannot so agree, then the rules of the American Arbitration Association then existing shall apply; however, the cost of the arbitrator’s fees shall be equally borne by the Parties. Any decision rendered by the arbitration panel can be entered by any Party as a judgment on the arbitration award in the state and federal courts of Brown County, Wisconsin, and Customer agrees to submit to the subject matter and personal jurisdiction of such courts. The arbitration panel and the court entering any judgment on an arbitration award may award the prevailing Party its reasonable attorney’s and expert witness fees. The decision of the arbitrators will be binding; provided, however, that Buddy Punch may bring an action in a court of competent jurisdiction for injunctive or other equitable or extraordinary relief as may be necessary to enforce the terms of these Terms of Use before arbitration may occur
(g) The remedies provided in these Terms and at law or in equity are cumulative and not exclusive. The failure by either Party to exercise any right or remedy under these Terms or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
(h) No person or entity who is not a Party to these Terms will derive any rights whatsoever hereunder as a third party beneficiary of these Terms.
(i) As an added benefit of the services provided by Customer, Buddy Punch may provide Customer with a monthly e-newsletter at no charge. Customer may elect not to receive such e-newsletter.
(j) Customer acknowledges that Buddy Punch is not a payroll system and Customer agrees to take full responsibility to validate the accuracy of data produced by the Service when used by Customer for its own payroll or billing purposes. Customer accepts sole responsibility for ensuring compliance with State and Federal labor laws and reporting and holds Buddy Punch harmless and indemnifies Buddy Punch from any and all payroll, tax and labor compliance liabilities. Certain features of the Service, including multiplying hours tracked by a monetary figure supplied by Customer, are provided for convenience and Customer’s reference only and do not and will not reflect the actual calculation of any payment payable by Customer to any person or entity and can never be relied on as such and are not warranted or guaranteed by Buddy Punch to be a payroll calculation or any other payment calculation.
15. Acceptance.
The Parties acknowledge that they have read these Terms of Use and hereby agree to be bound thereby. These Terms will become effective upon Customer’s acceptance by electronic acknowledgment on the Website.
16. Your Comments and Concerns.
If you have questions about these Terms, please contact Buddy Punch at [email protected].