WHEREAS, Company is in the business of providing human resource software solutions;
WHEREAS, Client wishes to procure Company’s solution for Client’s own, internal use. NOW THEREFORE, for good and valuable consideration,the sufficiency of which is acknowledged by both Parties, the Parties agree to be bound as follows:
1. Definitions “Active Employee” means an Employee currently employed or contracted by Client, who is not currently marked as terminated on the Platform.
“Change Request” means a request for changing the system behavior.
“Confidential Information” includes:(i) any information including, but not limited to, business plans, system guides, financial information, and performance information not in the public domain, whether in oral, written, or other form, that is identified as proprietary or confidential or provided under circumstances that reasonably indicate that the information is proprietary or confidential; and (ii) the Software.
"Client Data" all works and materials:(i) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Client or by any person or application or automated system using the Client's account; and (ii) otherwise provided by the Client to the Company in connection with this Agreement or the Services.
“Employee”means a past or present employee,consultant, contractor or agent of the Client and/or the Client’s Affiliates.
“Minor Function” means a system function that enhances the user experience, but that is not strictly required for the software to function properly.
“Platform”means the Software Modules, described in detail in Exhibit 1 hereto, that will be made available to the Client as a service under this Agreement as well as any ancillary services related to Client’s use of the Platform..
“Permitted Purpose” means the intended purpose Company is providing the Platform to Client for.
“Response Time” means the time, counted in working hours and days, that Company will respond to a Client request.
“Service Capacity” means the standard server capacity as provided in this Agreement in Exhibit 1.
“Software”means a computer program, application, tool, or database that Company has licensed to the Client based on this Agreement.
“Software Error” means a failure or fault in the Software that causes it to produce an incorrect or unexpected result, or to behave in unintended ways compared to the system guides and documentation provided by Company.
“Support Question” means a question regarding functional or software aspects of the Software. This does not include Software Errors.
“Update”means a Software patch issued by Company to correct defects or deficiencies in the Software or to provide minor modifications that do not substantially change the basic character or structure of the Software.
“Upgrade”means a release of Software that provides significant improvements and changes the basic character or structure of the currently licensed Software. These improvements and changes go beyond the minor improvements or corrections of an Update.
“User”means an individual who is entitled to access and use the Software pursuant to this Agreement.
2. Scope of Services
Company shall provide the following Services to Client and Client hereby accepts and agrees to pay for such Services, both in accordance with the terms of this Agreement. The Services shall consist of the following: 1. The License granted in Section 2.1, subject to certain limitations and restrictions; and2. the Software Maintenance & Support Services as set forth in Section 2.2.
2.1 Access to the Platform
(i) Company hereby grants to the Client a limited, non-exclusive, revocable, non-transferrable license to use the Platform only for the Permitted Purpose,and, if this Agreement is for on-premise Services, to locally download, and Install the Platform, both only during the Term (the “License”).
(ii) The License is subject to the following limitations:a) The Client may only store a limited number of Active Employee records on the Platform simultaneously. See Exhibit 1 for the number of Active Employee records allowed. Employee records for Employees marked as terminated on the Platform do not count towards this limit b) The Client’s access to the Platform shall be limited to the Software Modules listed in Exhibit 1; c) The Client shall: (i) be responsible for its (and, where applicable, third parties’ under its control and responsibility) compliance with this Agreement and other terms and conditions referenced herein; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform;
(iii) notify Company immediately of any unauthorized access and/or use of which Client becomes aware or should have reasonably become aware in the ordinary course of use of the Platform;
(iv) use the Platform only in accordance with this Agreement, for the Permitted Purpose and all applicable laws and regulations. d) The Client shall not (a) make the Platform available to any third party except for any third parties acting on behalf of Client or under Client’s control and responsibility; (b) sell, resell, rent or lease the Platform; (c) interfere with or disrupt the integrity or performance of the Platform or any third-party data available on or through the Platform,including, as applicable, any data of Client’s employees; (d) attempt to gain unauthorized access to the Platform or their related systems or networks; or(e) use the Platform in any way that is, or is in furtherance of an activity that is, illegal, unlawful, fraudulent or harmful.
2.2 Software Maintenance and Support. The “Software Maintenance & Support Services” shall consist of the following:
2.2.1Updates and Upgrades. Company shall provide the Client with all Software updates and upgrades to the licensed Software Modules released by Company during the Term of this Agreement. There is no guarantee any update or upgrades will be released. Upgrades and updates to custom modules or other Software may incur additional charges
2.2.2Maintenance and Support. (i) Company shall be available during its normal business hours and days to answer support questions, resolve incidents, process change requests, address technical errors and otherwise offer general technical and administrative support (the“Support Services”) in accordance with the Service Level Addendum set forth in Exhibit 4. Free of charge, Company shall provide the Client with up the Maximum Support Hours, as set forth in Exhibit 1 during each Term. Unused Support Hours shall not carry over to subsequent Terms or be refundable or creditable. Time spend addressing issues related solely to errors found within the Platform’s source code shall not count towards the Maximum Support Hour limit. (ii) The Support Services are limited to the investigating and resolving of technical errors that result solely from the Platform or Services. Investigating and resolving errors resulting from the actions or inaction of the Client are not Support Services and are chargeable to the Client in accordance with Section 3.3. Such actions or in actions include, without limitation, the following: a) improper use of the Software or Platform;b) modification of the Software or Platform done by any person other than Company without Company’s prior written consent;c) failure by the Client to implement recommendations in respect of the solutions and faults previously advised by Company;d) issues in the Client’s own equipment, software, network connections or other infrastructure;e) third party acts, services or systems; or f) general Internet problems, force majeure events or other factors outside of Company’s reasonable control (iv) Company support is provided to the designated Client contacts specified in Exhibit 3. Unless Company is other wise notified in writing prior to the authorization of any billable support work,these Client contacts shall have Client’s authority to authorize billable support work.
3. Payment Terms
3.1 Recurring Fees (i) For the services outlined in this agreement, the Client will pay Company the recurring fees as stated in Exhibit 2. (ii) If the Client requests the addition of Active Employee records to their Subscription, adds to the licensed Software Modules, exceeds the Service Capacity set forth on the Exhibit 1, or otherwise incurs additional fees per the terms of this Agreement, the Client shall be billed for and pay such fees in accordance with the terms of this Agreement. (iii) Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or the current renewal Term, upon thirty (30) days prior written notice to the Client. (iv) If the Client believes that Company has billed the Client incorrectly, the Client must provide Company with notice no later than 60 days after the closing date on the first billing statement in which the error or problem appeared. If the Client fails to provide notice to Company with in 60 days of the closing date, Company will not provide an adjustment or credit. (v) All fees under this Agreement exclude applicable taxes.
3.2 Payment Schedule (i) The Client will pay Company for any invoices received from Company within30 days of receipt of the invoice. (ii) Unpaid amounts are subject to a finance charge each month on any outstanding balance, or the maximum permitted by applicable law, plus all expenses of collection including attorney’s fees,and may result in the immediate termination of Service, at Company’s discretion. (iii) If the services outlined in this Agreement are re-instated after a termination or temporary suspension, Company reserves the right to charge Client a re-instatement fee.
3.3 Additional Services (i) If the Client orders any services,including, without limitation, the repair of Configuration Errors that are not included in this Agreement (“Additional Services”), such Additional Services will be charged on the Time and Material basis, unless otherwise agreed upon.After the service delivery, the agreed hours will be charged based on the hourly rate stated in Exhibit 1. Company agrees that the hourly rate shall stay in effect for a period of at least ninety days following the Effective Date and shall not change without thirty (30) days prior written notice to the Client.
4. Term and Termination
(i) This Agreement is valid for a period of one year (“Initial Term”)commencing on the Effective Date, and shall be automatically renewed for additional periods of the same duration (each, a “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term. (ii) Either party may terminate this Agreement if the other party materially breaches this Agreement and does not remedy said breach within thirty (30) days of its receipt of written notice from the non-breaching party. (iii) Company may terminate this Agreement without notice in case of any outstanding payment due for more than thirty (30) days.
5. Confidentiality and Client Data
(i) Each party shall preserve the confidentiality of the other party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care. (ii) Neither party shall be liable to the other for the release of Confidential Information if it: a) was known to the receiving party before the Effective Date without restriction as to use or disclosure; b) was in the public domain on or before the Effective Date; c) came into the public domain after the Effective Date through no fault of the receiving party; d) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or e) is divulged pursuant to any legal proceeding or otherwise required by law, subject to the receiving party giving all reason-able prior notice to the disclosing party to allow it to seek protective or other court orders and provided that the receiving party uses best efforts to make such disclosure under conditions of confidentiality. (iii) The Client hereby grants to Company a non-exclusive license to copy, reproduce, store, distribute, publish, export,adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Company obligations and the exercise of the Company rights under this Agreement. The Client also grants to Company the right to sub-license these rights to its hosting, connectivity, telecommunications and other service providers required for the performance of the Company obligation sunder this Agreement. (iv) The Client and Company shall comply with all applicable data protection laws with respect to the processing of the Client Data. Marketing Materials (i) Client grants Company a limited license to use the Client’s name in its marketing materials,. Company will not disclose any information about the Client other than that information which is agreed to between Company and Client or publicly available through the Client’s website and/or other public sources. (i) Company can use the Client’s name in its marketing materials only with Client’s express written approval. Company will not disclose any information about the Client other than that information which is agreed to between Company and Client or publicly available through the Client’s website and/or other public sources. (i) Clients who complete a successful implementation of Software may be eligible for our marketing discount. Eligible Clients may be invited to complete a Website Reference Statement for Company or a case study describing the Client’s project. Eligible Clients may receive an email explaining the terms and conditions of the marketing discount. This discount is not guaranteed and eligibility is subject to the discretion of Company.
(i) The Client shall own all rights, title and interest in and to all of the Client Data stored in the Platform and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Client Data. (ii) All rights, title and interest in and to all intellectual property rights in the Platform and Software are owned or held exclusively by Company or its licensors. The license granted to the Client does not convey any rights in the Platform or Software, express or implied, or ownership or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by Company. (iii) The Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how,or algorithms relevant to the Platform, documentation or data related to the Platform;modify, translate, or create derivative works based on the Platform or data derived from the Platform (except to the extent expressly permitted by Company);use the Platform for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. (iv) Company may collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies(including, without limitation, information concerning Client Data and data derived therefrom), and Company will be free (during and after the Term hereof)to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Company offerings, (ii) use such information and data to assess license usage and module access to ensure Client’s use is in compliance with the terms of this Agreement, and (iii) disclose such data solely in aggregate or other de-identified form in connection with its business. Client will be required to pay for additional licenses for any assessment showing Client has accessed unlicensed services or has activated more Active Employee records than permitted.
7. Warranty and Liability
(i) SOFTWARE WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN,THE SOFTWARE IS LICENSED “AS IS.” THE CLIENT BEARS THE RISK OF USING THE SOFTWARE. COMPANY MAKES NO, AND CLIENT EXPRESS PLY DISCLAIMS ANY RELIANCE ON ANY, EXPRESS AND IMPLIED WARRANTIES, GUARANTEES, OR CONDITIONS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (ii) Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or another type of legal entity under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;(b) it has the right, power, and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational rules, policies, and procedures; (d) this Agreement will constitute the legal, valid and binding obligation of each Party,enforceable against such Party in accordance with its terms; and (e) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and products and services offered by each Party in connection with this Agreement. Company further warrants that: (a) the Services provided will be performed in a good and workmanlike manner and in accordance with professional standards; (b) its performance of the Services will not violate any applicable federal, state, or local laws, rules, or regulations, or orders of any governmental body or agency; and (c) its performance of the Services will strictly conform to all material requirements of the Agreement. (iii) Except as set forth herein, Company does not warrant, guarantee or make any representations regarding the use, availability or the results of use, of the Platform or Services. Company does not warrant that the Software will meet your requirements, that operation of the Software will be uninterrupted or error-free, or that all Software errors will be corrected. (v) Company is not responsible for problems caused by changes in the operating characteristics of computer hardware or computer operating systems that are made after the release of the Software, nor for problems in the interaction of the Software with non-Company software. (vi) The Software is intended for commercial, institutional, and industrial users only. The above warranties are exclusive and in lieu of all other warranties, whether expressed or implied, including the implied warranties of merchantability and fitness for a particular purpose. No oral or written information or advice given by Company, its employees, distributors, dealers,or agents shall increase the scope of the above warranties or create any new warranties. Except for the infringement of the third party intellectual property rights or a breach of confidentiality owed to the Client, neither Company nor anyone else who has been involved in the creation, production or delivery of the software shall be liable for any direct, indirect, consequential, or incidental damages (including damages for loss of business profits, business losses, business interruption, loss of data, and the like) arising out of the use or inability to use the software, or any other claim by any party, even if Company has been advised of the possibility of such damages. (vii) EXCEPT IN THE CASE OF A BREACH OF CONFIDENTIALITY, DATA PRIVACY, DATA SECURITY, AND THIRD PARTY CLAIMS ARISING UNDER THE INDEMNIFICATION SECTION BELOW, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FEES PAID BY CLIENT TO COMPANY PURSUANT TO THIS AGREEMENT OVER THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY, DATA PRIVACY, OR DATA SECURITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL,SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
(i) Each Party (“Indemnifying Party”) will indemnify, defend and hold the other party(“Indemnified Party”) harmless from any third-party claim, action, suit or proceeding made or brought against the Indemnified Party (i) arising out of or related to the Indemnifying Party’s breach of any term of this Agreement; or(ii) arising from the Indemnifying Party’s gross negligence or intentional misconduct. (ii) Company will indemnify, defend, and hold Client harmless from any third-party claim,action, suit or proceeding made or brought against Client alleging that Client’s use of the Applications and Services in accordance with this Agreement infringes such third party’s intellectual property rights (an “Infringement Claim”). In the event of an Infringement Claim, Company may, at its sole option and expense: (A) procure for Client the right to continue use of the Applications and Services or infringing part thereof; or (B) modify or amend the Applications and Services or infringing part thereof, or replace the Applications and Services or infringing part thereof with other software having substantially the same or better capabilities; or, (C) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Client a pro rata portion, if any, of any pre-paid Fees. Company will have no liability for an Infringement Claim if the actual or alleged infringement results from (1) Client’s breach of this Agreement or any agreement with the third party; (2) Client’s modification, alteration or addition made to the Applications and Services or any use thereof, including any combination the re of with software or other materials not provided by Company; (3) Client’s failure to use any necessary corrections or modifications made available by Company, solong as such corrections or modifications were made available a reasonable time prior to the Infringement Claim; or (4) use of the Services in a manner or in connection with a product or data not contemplated by this Agreement. Company also disclaims any liability for settlements entered into by Client or costs incurred by Client in relation to an Infringement Claim that are not pre-approved by Company in writing. THIS SECTION STATES THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO ANY INFRINGEMENT CLAIM. (ii) Client will indemnify, defend and hold Company harmless from any third-party claim,action, suit or proceeding made or brought against Company alleging that Company’s use of the Data in accordance with this Agreement infringes such third-party’s intellectual property rights.
9. Entire of Agreement
(i) The Parties acknowledge that there are no written agreements, contracts, representations, warranties,inducements, or under-standings between them and pertaining to Software except as set forth and referred to in this Agreement. This Agreement is the entire agreement between the parties and supersedes any previous agreements,negotiations, discussions, and written instruments.
10. Export Restrictions
(i) Client agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.Specifically, Client covenants that it will not -- directly or indirectly --sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Company under this Agreement to any destination,entity, or person prohibited by the laws or regulations of the United States,without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Client agrees to indemnify, to the fullest extent permitted by law, Company from and against any fines or penalties that may arise as a result of Client’s breach of this provision
11. Choice of Law(i)
This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the Parties shall be resolved in the state or federal courts of the State of Delaware, provided that either Party may seek injunctive or other equitable relief, including, but not limited to,preliminary injunctions and temporary restraining orders, to protect such Party’s intellectual property and other proprietary and contractual rights and interests in any court of competent jurisdiction. The Parties agree to waive all right to a jury trial in connection with any matters covered by this Agreement, whether in state or federal court.
(i) If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated. No waiver or modification of this Agreement will be valid unless made in writing and signed by both Parties unless otherwise set out herein. The waiver of a breach of any term herein will in no way be construed as a waiver of any other term or breach.
(i) All notices and requests related to this Agreement shall be made in writing and delivered to the recipients address or email as listed on the front page of this Agreement. To be effective, notice must be delivered by certified or registered mail, courier or email. Notice will be effective after 3 days if sent by mail, 1 day if sent by courier, and upon receipt if sent by for email. (ii) The email address for Company and Clients hall be as follows: Company:
14. Assignment/Transfer Prohibited
(i) Either Party may assign this Agreement to an entity acquiring substantially all of Licensee's assets or merging with such Party, provided that such assignee agrees in writing to assume all obligations under this Agreement. Other than the above, neither party may as signany of its rights or delegate any of its obligations under this Agreement without the express written consent of the other. Any attempted assignment in violation of the above will be void and of no effect.
15. Attorney’s Fees
(i) If any suit, proceeding, or action is brought to enforce or defend the terms of this agreement, the prevailing party will be entitled to attorney’s fees and court costs in addition to any other relief granted.
(i) All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination of this Agreement, will so survive.