Effective 1 June 2018

THESE TERMS OF SERVICE ("TERMS") CONSTITUTE A CONTRACT BETWEEN YOU (“YOU”) AND KIMBEL INTERNATIONAL (“KIMBEL INTERNATIONAL”), REGARDING THE USE OF AND ACCESS TO THE SERVICE (AS DEFINED BELOW) BY YOU, YOUR AGENTS (“AGENTS”) AND YOUR END USERS (“END USERS”), WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.

By accepting these Terms, or by accessing or using the Service and/or the Site, You are agreeing to be bound by these Terms. If you are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to these Terms for that Entity and representing to KIMBEL INTERNATIONAL that you have the authority to bind such Entity and its affiliates to these Terms. If you do not have such authority, or if you do not agree with these Terms, you must not use the Service.

Definitions

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

Account: means all KIMBEL INTERNATIONAL accounts or instances created by or on behalf of an Entity or its Agents within the Service.

User: means an individual authorized to use the service through Your Account as an agent, employee and/or administrator, as identified through a unique login.

API: means the application programming interfaces developed and enabled by KIMBEL INTERNATIONAL that permits Users to access certain functionality provided by the Service.

Confidential Information: means all information disclosed by You to KIMBEL INTERNATIONAL or by KIMBEL INTERNATIONAL to You which is in tangible form and labeled confidential (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

Personal Data: means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Service: means the on-demand KIMBEL INTERNATIONAL time, attendance, scheduling, HRIS, analytics and payroll solution and tools provided by KIMBEL INTERNATIONAL, including but not limited to, individually and/or collectively, Software and the API. Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service (”Updates”) are also subject to these Terms and KIMBEL INTERNATIONAL reserves the right to deploy Updates at any time.

Plan: means the service plan and the functionality and services associated therewith (as detailed on the Site) for which You subscribe with respect to each User.

Site: means www.kimbel.biz and any other websites that KIMBEL INTERNATIONAL operates.

KIMBEL INTERNATIONAL: means KIMBEL INTERNATIONAL, a Philippine corporation or any of its successors or assignees. In these Terms, KIMBEL INTERNATIONAL may also be referred to through the use of We or Our.

Customer Service Hours of Operation

Our customer service representatives are available for technical support from Mondays to Fridays 9:00 am - 6:00 pm, except holidays, (UTC/GMT +8 hours) to assist with any questions. You will find instructions for troubleshooting and other helpful resources at our Knowledge Base. The KIMBEL INTERNATIONAL customer service representatives offer assistance on an "as is" basis, to the best of their knowledge at that time. KIMBEL INTERNATIONAL representatives are not responsible for the accuracy of Your Data.

Accuracy of Data

You are responsible for the accuracy of all Data associated with Your client account. KIMBEL INTERNATIONAL is not responsible for any liability for damages arising out of, or in connection with, Your use of the Site.

Customer Data

At any time, a User can, if needed, export their their Data via the available reports onto comma-delimited files, which are readable in Excel and its open source equivalents.

Confidentiality and Data Protection

By using this service and accepting these Terms, You and KIMBEL INTERNATIONAL will protect each other’s confidential information from unauthorized use, access or disclosure in the same manner as each protects its own confidential information, but with no less than reasonable care.

Platform Security

We follow industry standards and best practices for privilege separation of our data, and all communication made by our application, over the internet, is encrypted using industry standard SSL encryption. While we make every effort to keep Your Data secure, KIMBEL INTERNATIONAL is not responsible for any liability for damages arising out of, or in connection with, Your use of this website.

Late Fees

If we do not receive payment of an amount due on your account by the specified required payment date, it will be subject to a late payment charge of 2% per month and your account may be deactivated. This late payment charge will accrue on a monthly basis and will be calculated and compounded monthly on the outstanding amount (26.82% per year) from the date of the first invoice on which it appears until the date we receive that amount in full. You agree that we can charge any unpaid and outstanding amount, including any late payment charges, on any pre-authorized payment method on your account (e.g., a credit card).

We will delete all data in an account that has been deactivated over 6 months.

Cancellation and Termination

Either You or KIMBEL INTERNATIONAL may elect to terminate Your Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise advised by KIMBEL INTERNATIONAL in advance, the charges for the Service applicable to Your subscription for any such subsequent Subscription Term shall be Our standard charges for the Plan to which You have subscribed as of the time such subsequent Subscription Term commences. No refunds or credits for Service fees or other fees or payments will be provided to You if You elect to downgrade Your Plan. Downgrading Your Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and KIMBEL INTERNATIONAL does not accept any liability for such loss. KIMBEL INTERNATIONAL shall not refund to You any fees or prepaid fees if You decide to cancel Your Account and Service mid Subscription Term.

We will delete all data in an account that has been terminated over 6 months.

Limitation of Liability

Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to these terms, or their affiliates, offices, directors, employees, agents, suppliers or licensors be liable to the other party or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party or third party in connection with these terms or the service, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.

Service Level Agreement

KIMBEL INTERNATIONAL services are available as is, and use of Our services assumes the acceptance of whatever the current state of the software is. KIMBEL INTERNATIONAL will use commercially reasonable efforts to make the KIMBEL INTERNATIONAL platform available with a monthly uptime percentage of at least 99%, in each case during any monthly billing cycle (the “Service Commitment”). In the event KIMBEL INTERNATIONAL does not meet the Service Commitment, You will be eligible to receive a Service Credit as described below. Service Credits are calculated as a percentage of the total charges paid by You (excluding one-time payments such as upfront payments) for the monthly billing cycle in which the platform was unavailable. If the monthly uptime percentage drops below: 99% Service Credit, Percentage: 20% Service Credits are applied to Your next month’s invoice.

To receive a Service Credit, You must submit a claim by opening a support case (kimbel@kimbel.biz).

To be eligible, the credit request must be received by us by the end of the second billing cycle after which the incident occurred and must include:

• the words "SLA Credit Request" in the subject line;
• the dates and times of each unavailability incident in respect of which You are claiming;
• the affected KIMBEL INTERNATIONAL account;
• and your request logs that document the errors and corroborate Your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).

Governing Law

These Terms are governed by the laws of the Republic of the Philippines. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. The parties agree to submit to the exclusive jurisdiction of the courts of the Republic of the Philippines. You may not assign Your rights hereunder to any third party without the prior written consent of KIMBEL INTERNATIONAL. No joint venture, partnership, employment, or agency relationship exists between You and KIMBEL INTERNATIONAL. A person who is not a party to this Agreement shall have no rights under the Contracts to enforce any term of this Agreement. If any provision of these Terms is found invalid or unenforceable, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable. These Terms constitute the entire understanding and agreement between KIMBEL INTERNATIONAL and You and supersedes any and all prior understandings and/or agreements between the parties in relation to the Service. No purported waiver by KIMBEL INTERNATIONAL of any of its rights hereunder or under any applicable law or regulation shall be valid unless made in writing by an authorized representative of KIMBEL INTERNATIONAL. We may, without Your consent, assign our agreement with You to any member of the KIMBEL INTERNATIONAL Group or in connection with any merger or change of control of KIMBEL INTERNATIONAL or the sale of all or substantially all of our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by KIMBEL INTERNATIONAL as Your consent to any such amendment, provided that you may terminate the Service on the provision of seven (7) days’ notice to KIMBEL INTERNATIONAL if, in your reasonable opinion, such amendments to the Terms will result in a direct, material and detrimental effect to Your business. KIMBEL INTERNATIONAL’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.