We’re legal to the core. We’ve made it easy for our website visitors, our awesome clients, our almost clients and everyone else to access the legal documents that are important to us. They are compiled on one page and can be accessed by clicking on the terms to your left. You have no excuse for not reading them…come on, we wrote them!
If you’re visiting our website (and not to scare you, but you are right now), you’ll want to read this stuff. This document basically gives you guidelines as to what is considered legitimate use of our site. Let’s keep it clean, boys!
This one is a real barn burner, but it is important to us as it should be to you. This document explains what we do with your data, your visits and your sensitive information. Plus, it also explains what we won’t do with it. We’re here for you and our relationship…we don’t want to jeopardize that.
This is our favorite one because that means you’re working with us! The Terms of Service document outlines everything you need to know when you become a client. It’s like our version of “What to Expect When You’re Expecting” where we tell you everything upfront so there are no surprises!
This Website is controlled by ES from its offices within the State of Ohio. Visitors who choose to visit this Website from this or other jurisdictions do so on their own initiative. Those visitors are solely responsible for compliance with all applicable federal, state, local and foreign laws, rules and regulations in connection with their use of this Website.
Venue and Jurisdiction:
Claims arising from or related to this Website, to the use of this Website, and to the information, content, material, and services available through this Website are governed by the laws of the State of Ohio. You hereby unconditionally, voluntarily, and irrevocably consent to submit to the exclusive jurisdiction and venue of the state and federal courts located in Ohio with respect to any claims arising from or related to this Website, your use of this Website and any information received through this Website. You agree not to plead forum non conveniens in any such action. You consent to service of process.
Change of Terms:
Alteration of Site:
ES may change, suspend or discontinue any feature, aspect, product or service available through this Website at any time. ES may alter the availability of any feature of this Website or service related to any feature of this Website at any time. ES may add, remove or modify any content of this Website, including that of third parties, at any time.
Limitation on Usage:
ES may limit your access to any part of this Website without notice to you. ES may terminate your use of this Website at any time.
Visitor On-line Conduct:
- You agree to use this Website only for lawful purposes.
- You agree to use this Website only for its intended purposes.
- You agree not to disrupt this Website.
- You agree not to interfere with or compromise the security of this Website, or any computer, server, account, network, data, software and/or hardware associated with this Website.
- You agree not to disrupt or interfere with any other visitor’s use of this Website.
- You agree not to attempt to obtain access to any portion of this Website, any computer, server, account, network, software and/or hardware associated with the Website, from which you are restricted.
- You agree that you are solely responsible for any actions you undertake while visiting this Website and that you will comply with all applicable local, state, federal and foreign laws, rules and regulations applicable to this Website and the Internet, including United States copyright law and export regulations.
- You are responsible for all postings, messages, text, files, images, graphics, photos, audio clips, sounds, video or other materials that You post on, transmit through or link from or to this Website.
- You warrant that all information you provide to gain access to the services provided by this Website is accurate and truthful.
- ES reserves the right to prohibit any conduct involving this Website that it deems to be inappropriate or illegal.
- If you are provided or select a user name or password to access this Website or any page of this Website, you are responsible to keep such user name and password private, secure, and strictly confidential.
- ES does not knowingly or intentionally collect personal information from children under the age of 13. The content of this Website is directed at adults and is intended for use only by adults over the age of 13. If you are under the age of 13, you may not submit any personal information to ES at or through this Website and should consult with an adult for assistance in using this Website.
Links to and from Other Web Pages:
Links to third party websites or information are not intended, and should not be interpreted by users, as constituting or implying ES’s endorsement, sponsorship or recommendation of the third party information, or products or services found there.
Copyright, Trademark and Intellectual Property:
All information, content and material made available by ES through this Website, including, without limitation, any computer code, design, text, drawings, photographs, graphics, sound recordings and video recordings as well as any copyrights, trademarks, patents or other intellectual property or proprietary rights comprising the Website or any component or element of the Website (collectively, the “Content”) is owned by or licensed to ES. The compilation of the Content on this Website is the exclusive property of ES and its licensors and is protected by U.S. and international copyright law.
ES and its licensors retain all rights in the Content of this Website. The Content may not be modified, copied, distributed, downloaded, displayed, e-mailed, transmitted, performed or sold in any form or by any means, in whole or in part, without the prior written consent of the respective owner thereof.
ES grants you permission to display and print the Content of this Website (other than the computer code comprising this Website) for your personal, non-commercial use only; provided, that, even if you display or print the Content of this Website as permitted hereunder, you may not modify, reproduce, transmit, distribute, publicly display or perform, or create derivative works from that Content and you must retain all copyright and other proprietary notices contained in or on the Content.
EmployStream and all derivations thereof are trademarks of ES. Other marks used on the Website are either registered trademarks, trademarks, trade names, service marks, or otherwise protected property of ES and may not be used, copied or imitated without the prior written consent of ES.
Digital Millennium Copyright Act, Transmission of Third Party Content:
You may not upload, post or otherwise distribute on this Website anything protected by copyright or other proprietary rights unless the owner of the applicable copyright or proprietary right has given you express authorization for such uploading, posting or distribution on the web.
The unauthorized use, uploading, posting, and/or distribution of Content protected by copyright or other proprietary rights is illegal and subjects the malfeasant to civil penalties and criminal prosecution.
ES, its affiliates, officers, directors, employees, agents or any such similarly situated persons or entities are not liable for damages resulting from any infringement resulting from your actions involving copyrighted or proprietary right protected material.
ES, pursuant to the federal Digital Millennium Copyright Act, designates a privacy officer to receive complaints and notices of suspected copyright infringements. If you believe that your work has been copied and is accessible on ES’s Website in a way that constitutes infringement, you may notify ES by providing the privacy officer with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
- Identification of the URL or other specific location on ES’s Website where the material that you claim is infringing is located;
- Your address, telephone number and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
ES can be reached via e-mail at email@example.com and by regular mail at EmployStream, 4500 Rockside Rd. #370 Independence, OH 44131, Attention: Privacy Officer.
You are prohibited from uploading, posting or otherwise distributing on or through this Website any abusive, unlawful, threatening, obscene, pornographic, intimidating, libelous, defamatory or slanderous comments, jokes, images or content that are intended to or are likely to offend a reasonable person on the basis of his or her age, physical or mental disability, gender, race, religion, national origin, physical attributes, sexual preference, or any other classification that could produce any civil or criminal liability for either yourself or for ES, its affiliates, employees, agents or any such similarly situated persons or entities.
You are prohibited from impersonating anyone else or passing yourself off as someone else including, without limitation, any ES employee or any public figure.
You are prohibited from uploading, posting or otherwise distributing on or through this Website any content, information or other materials that infringe or violate the patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of any person or entity.
You hereby grant to ES and its affiliates, employees, agents and contractors an irrevocable, royalty-free , non-exclusive license to use, reproduce, modify, display, publicly perform, archive, store, distribute, transmit, reproduce, create derivative works from any content, information or other materials that you post, transmit, link, or upload at or to the Website.
Ownership of Third Party Content:
ES may display Content supplied by visitors and other third parties on its website. ES maintains no editorial control over this Content. The Content supplied by visitors and other third parties belongs to the respective owners of that Content.
The Website may offer weblogs, forums and other interactive areas where Website users post, transmit, link or upload content, information and other materials, or post opinions, and share ideas or other information. ES cannot and does not pre-screen, approve, or monitor all of the content, information and other materials posted, transmitted, linked or uploaded by Website users or other third parties. ES shall have the right, in its sole discretion, to refuse, delete or move any content, information or other materials available on or at the Website, and reserves the right to delete any posting, message or other content, information or materials at any time, for any reason or no reason.
ES, IT’S AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND ANY SUCH SIMILARLY SITUATED PERSONS OR ENTITIES (“WE”) DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, USEFULNESS OR EXISTENCE OF ANY CONTENT SUPPLIED BY VISITORS OR THIRD PARTIES. WE DO NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY CONTENT SUPPLIED BY VISITORS OR THIRD PARTIES.
WE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY LOSS, DAMAGE OR HARM TO PROPERTY OR PERSON CAUSED BY YOUR OR ANYONE ELSE’S RELIANCE ON CONTENT AVAILABLE ON THIS WEBSITE THAT IS THE PROPERTY OF VISITORS OR THIRD PARTIES. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING AND ACTING ON ANY CONTENT AVAILABLE ON THIS WEBSITE.
THIS WEBSITE IS PROVIDED “AS-IS” AND “AS-AVAILABLE”. ES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING THE OPERATION OF THIS WEBSITE, THE CONTENT, INFORMATION, AND/OR SERVICES AVAILABLE ON OR THROUGH THIS WEBSITE.
THE COMPANY DOES NOT GUARANTEE THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY INFORMATION PROVIDED AT OR THROUGH THIS WEBSITE (BY LINK OR OTHERWISE) AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM USE OF SUCH INFORMATION.
YOU AGREE THAT ES IS NOT RESPONSIBLE FOR AND CANNOT GUARANTEE AGAINST THE INTRODUCTION OF VIRUSES OR WORMS, OR UNAUTHORIZED USERS ATTEMPTING TO ACCESS, OR OBTAINING ACCESS TO THIS WEBSITE OR YOUR COMPUTER OR OTHER SYSTEMS FROM OR THROUGH THIS WEBSITE.
ES MAY TEMPORARILY OR PERMANENTLY SUSPEND ACCESS TO OR DISCONTINUE THIS WEBSITE OR ANY PAGE OF THIS WEBSITE AT ITS DISCRETION, AT ANY TIME, WITHOUT NOTICE.
YOU AGREE TO VISIT THIS WEBSITE SOLELY AT YOUR OWN RISK. YOU AGREE THAT YOUR USE OF THIS WEBSITE, AND ANY CONTENT, INFORMATION AND/OR SERVICES AVAILABLE THROUGH THIS WEBSITE IS SOLELY AT YOUR OWN RISK.
WE DO NOT WARRANT THAT THIS WEBSITE WILL BE AVAILABLE AT ALL TIMES OR THAT A VISITOR’S USE WILL BE CONTINUOUS AND/OR ERROR FREE. WE DO NOT MAKE ANY WARRANTIES THAT THE CONTENT, INFORMATION AND/OR SERVICES AVAILABLE THROUGH THIS WEBSITE ARE ACCURATE, RELIABLE, OR CURRENT.
ES DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE, ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT IN RELATION TO THE CONTENT, INFORMATION, SERVICE OR PRODUCTS PROVIDED AT, THROUGH OR IN CONNECTION WITH THIS WEBSITE.
Limitation of Liability:
NEITHER WE, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, SERVING, HOSTING, MAINTAINING AND/OR UPDATING THIS WEBSITE SHALL BE LIABLE, UNDER ANY CIRCUMSTANCES FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEBSITE OR THE CONTENT, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES ARISING FROM HARM INCLUDING, BUT NOT LIMITED TO INJURY TO PROPERTY OR PERSON, MISTAKES, OMISSIONS, INTERRUPTIONS, DETERIORATION OR CORRUPTION OF FILES, DELETION OR CORRUPTION OF E-MAIL, ERRORS, LOSS OF DATA, LOSS OF PROFITS, DEFECTS, VIRUSES, AND/OR DELAYS, THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THIS WEBSITE, RESULTING FROM ACTS INCLUDING BUT NOT LIMITED TO ACTS OUTSIDE OF OUR CONTROL, NETWORK FAILURE, HARDWARE OR SOFTWARE FAILURE, THEFT, INTERNET FAILURE, UNAUTHORIZED ACCESS, THE COMPANY’S NEGLIGENCE OR YOUR OWN ERRORS AND/OR OMISSIONS AND ANY OTHER CAUSE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THIS SECTION APPLIES TO ALL CONTENT, GOODS AND SERVICES AVAILABLE THROUGH THIS WEBSITE. IN ANY JURISDICTION WHERE EXCLUSION OR LIMITATION OF LIABILITY FOR ANY TYPE OF DAMAGES IS PROHIBITED, ES’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT ALLOWED BY THAT JURISDICTION. IF YOUR USE OF THIS WEBSITE OR THE CONTENT, INFORMATION, PRODUCTS OR SERVICES PROVIDED AT, THROUGH OR IN CONNECTION WITH THIS WEBSITE OR ANY OTHER WEBSITE LINKED TO THIS WEBSITE RESULTS IN ANY LOSS TO YOU, OR RESULTS IN THE NEED FOR ANY SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME RESPONSIBILITY FOR ALL SUCH LOSSES AND ALL COSTS ARISING THEREFROM OR ASSOCIATED THEREWITH.
No Joint Venture:
If you have any questions about this policy, please contact ES by e-mail at firstname.lastname@example.org, or by regular mail at EmployStream, 3029 Prospect Avenue E, Cleveland, OH 44115, Attention: Privacy Officer.
Date of last update: May 4, 2015
Last updated: April, 2017
This Policy describes the types of personal data we collect through the Services and how that personal data may be used and/or with whom it may be shared.
Children Under 13 Years of Age
Children under 13 years of age are not permitted to use the Services for any purpose and ES does not collect personally identifiable information about children under the age of 13. Users may not provide personal information about any person under 13 years of age. If you believe that personal information about a child has been provided to ES without the consent of his or her parent or guardian, please contact us at email@example.com. If we becomes aware that personally identifiable information about a child under age 13 has been provided, we will delete such information.
Ultimately, you are solely responsible for maintaining the secrecy of your password and/or account information. To ensure effectiveness of your password, we recommend that you do not disclose your user identification or password to anyone. Please be careful and responsible whenever you are online.
The Information We Collect
When you register to use the Services or to apply for a job the Services will collect personal information about you to give you the best user experience possible. During the registration process you may be asked to input personal information to create an account such as name, email address, city, state and zip code and may be asked additional profile questions regarding your use of the Services. When you apply for a job you may need to provide personal data such as your name, home address, telephone number, e-mail address, Social Security Number, education and job history, criminal convictions, salary requirements, and current resume through the Services.
ES collects such information only insofar as is necessary or appropriate to fulfill the purpose of your interaction with the Services.
When you visit the Website or use the App, the Services may collect anonymous, aggregated data regarding your activities. This anonymous, aggregated data cannot be linked or otherwise used to identify you. We may share aggregated information that includes non-identifying information with third parties for industry analysis and demographic profiling. Users of the Services shall not be entitled to any compensation stemming from the use of such aggregated or non-identifying information.
Use and Disclosure of your Personal Information
ES will use the personal information you submit to us to provide you full access and functionality of the Services. Accordingly, personal information may be used for the following purposes: (i) to provide and improve our services, features and content; (ii) to administer your use of our services and accounts; (iii) to enable users to enjoy and easily navigate the Services; (iv) to better understand your needs and interests; (v) to fulfill requests you may make; (vi) to personalize your experience; (vii) to provide you with announcements, notifications related to your use of the Services and other communications such as electronic newsletters, promotional e-mails or similar messaging; (viii) to provide service announcements; (ix) to protect against users seeking to hack into the Services; and (x) to assess the level of general interest in the Services and specific information included in the Services.
Except as provided elsewhere in this policy ES will not disclose your personal information to third parties outside of ES and its service providers, affiliates, vendors and business partners unless ES has the good faith belief that disclosure is reasonably necessary to:
- cooperate with law enforcement authorities or comply with legal process served on ES or the Website or App;
- protect the property and rights of ES, its affiliates or a third party;
- protect the safety of the public or any person;
- prevent or stop any activity we may consider to be, or to pose a risk of being, illegal, unethical, inappropriate or legally actionable;
- complete, as permitted by law, a business sale, asset transfer, merger, acquisition or reorganization; or
- fix or debug problems with the Website or App servers, software or service.
If ES discloses your personal information pursuant to one of the above-mentioned conditions, it will do so only to the extent necessary.
Security of your Personal Information
ES is committed to protecting your personal information. We regularly test our facilities and use a variety of security technologies and procedures to help protect your personal information from unauthorized access, use or disclosure.
As you use the Services, certain information may also be collected passively, including your Internet protocol (IP) address and the browser that you use to visit the Site. ES may also store a small text file called a “Cookie” on your computer to store your login information (if any) and your personal preferences for the Services. ES may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them). You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you would prefer not to accept cookies, most browsers will allow you to: (i) change your browser settings to notify you when you receive a cookie, which lets you choose whether or not to accept it; (ii) to disable existing cookies; or (iii) to set your browser to automatically reject any cookies. However, please be aware that if you disable or reject cookies, some features and services on our Site may not work properly because we may not be able to recognize and associate you with your ES account(s). In addition, the offers we provide when you visit us may not be as relevant to you or tailored to your interests. After you register and enable Cookies, we may associate this information with personal information that we have collected from you.
Links to Other Web Sites
The Website may contain links to other web sites that are not owned or controlled by ES. The provision of such links is for your convenience and does not signify our endorsement of such web sites or location or its contents. We have no control over, do not review and are not responsible for the privacy policies of or content displayed on such other web sites.
For users outside the United States, please note that any personally-identifiable information you enter into the Services will be transferred out of your country and into the United States. You consent to such transfer through your use of the Services. You also warrant that you have the right to transfer such information outside your country and into the United States.
Your California Privacy Rights
A business subject to California Civil Code section 1798.83 is required to disclose to its California customers, upon request, the identity of any third parties to whom the business has disclosed personal information within the previous calendar year, along with the type of personal information disclosed, for the third parties’ direct marketing purposes.
If you are a California resident and would like to make such a request, please send an email to firstname.lastname@example.org.
If you have any questions about this policy or our site in general, please contact us at:
3029 Prospect Avenue E
Cleveland, OH 44115
By e-mail to: email@example.com
By telephone at: 216-816-0086
Changes to this Policy
This Policy may be amended from time to time, consistent with the requirements of applicable law. A notice will be posted by ES on this Site when this Policy is changed.
Terms of Service
Terms of Service – as of May 9th, 2017
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
Capitalized terms used in these Terms of Service are defined in §11 below.
These are the “Terms of Service” referenced in the Order Form. The Order Form is a legally enforceable contract between EmployStream and the Customer and the reference to these Terms in the Order Form means that these Terms apply, and are enforceable, in the same way as they would if they were included in the Order Form.
1. License Terms.
EmployStream grants the Software License to the Customer as of the Start Date. The Customer may not allow any party other than the Customer Users to use the Software Product (whether directly or indirectly). As between EmployStream and the Customer, all of the rights in, the title to and all of the interests in the Software Product are EmployStream’s.
2. Fees; Invoices; Expenses.
On or immediately after the Signature Date, EmployStream will invoice the Customer for the “Total Due at Signing” set forth in the Order Form. EmployStream may deliver additional invoices for any other of the Amounts Due. If the Subscription Term is longer than one year, EmployStream will invoice the Customer for each subsequent year at the “Annual Fee” set forth in the Order Form given the number of hires made by the Customer annually during Subscription Term. The Customer will pay the undisputed portion of the Amounts Due within the 15 days that follow EmployStream’s delivery of each invoice. Interest at a monthly rate of 1% of the Amounts Due will accrue on any Amounts Due by the Customer that are not disputed during, and remain unpaid at the end of, such 15‑day period. The Customer will reimburse EmployStream for any amounts incurred in collecting any of the Amounts Due (including reasonable attorneys’ fees). The Customer will also reimburse EmployStream for any sales, use or other similar taxes due or payable as a result of any of the Amounts Due. These taxes, however, may not include any tax attributable to EmployStream’s income, profits or the like.
3. Customer Data.
4. Parties’ Obligations.
4.2 EmployStream may, at its expense, audit and copy any of the Customer’s books, records and other documents as EmployStream may deem reasonably necessary to verify the Customer’s hires and other information used by either Party in anticipation of entering into the Order Form or in making any calculation according to these Terms. Any such audit will be held during the Customer’s regular business hours on any mutually agreeable Business Day(s).
4.3 Upon EmployStream’s reasonable request, the Customer will (a) act as a reference in EmployStream’s sales and marketing initiatives and (b) work with EmployStream to issue press releases and participate in media interviews, case- and market-research studies. Each Party may publicize that it is has entered into the Agreement with the other, provided, however, that, except as required by applicable law or court order, neither Party may (e) disclose the specific terms of the Agreement (including pricing) and/or (f) use the logos or trademarks of the other Party, without the consent of such other Party, which consent may not be unreasonably withheld. For the avoidance of doubt, delivery by either Party of its logo to the other Party constitutes such delivering Party’s consent to use of such logo by such other Party.
5.1 If the Customer delivers Confidential Information to EmployStream, EmployStream will (a) use such Confidential Information solely for the purpose of carrying out its obligations according to these Terms, (b) hold such Confidential Information in confidence and take reasonable precautions to protect such Confidential Information (including all precautions that such it employs with respect to its confidential materials) and (c) not divulge any such Confidential Information or any information derived therefrom to any third-party other than to those of its employees and other affiliates who have a reasonable need to know such information. EmployStream’s obligations in this §5.1 may not be applied (d) to any Confidential Information that (1) is or becomes (through no improper action or inaction by EmployStream or any of its employees or other affiliates) generally available to the public, (2) was in its possession or known by EmployStream to receiving it from the Customer disclosing the same, (3) was properly disclosed to EmployStream without any obligation of confidentiality or (4) was discovered or created by EmployStream without reliance on such Confidential Information or (e) to disclosures required by applicable law or court order.
5.2 Notwithstanding that set forth in §5.1, EmployStream may access, read, preserve and/or disclose any information (including Confidential Information) it reasonably believes is necessary (a) to satisfy any applicable law and/or governmental request, (b) to respond to user support requests, (c) to detect, prevent, or otherwise address fraud, security and/or technical issues, (d) to enforce these Terms and/or (e) protect either Party’s, or any third-party’s, rights, property or safety.
6. Representations & Warranties.
The Customer represents and warrants to EmployStream that it had and/or has the full right, power and authority to enter into the Order Form and to fully perform according to these Terms. EmployStream represents and warrants to the Customer that (a) it had and/or has the full right, power and authority to enter into the Order Form and to fully perform its obligations according to Terms, (b) it has the full right, power and authority to grant to the Customer the rights and licenses described herein and (c) it has not knowingly infringed upon the intellectual property rights of any third-party or knowingly misappropriated the trade secrets of any third-party in granting the Software License to the Customer.
7. Limitations on Liability.
7.1 THE SOFTWARE PRODUCT IS PROVIDED BY EMPLOYSTREAM ON AN “AS IS” BASIS. ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITATION, EMPLOYSTREAM NEITHER REPRESENTS AND WARRANTS, NOR COVENANTS, THAT (a) THE OPERATION AND/OR USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, (b) THE SOFTWARE PRODUCT WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (c) ALL DEFICIENCIES OR ERRORS IN THE SOFTWARE PRODUCT ARE CAPABLE OF CORRECTION OR (d) THE SOFTWARE PRODUCT MEETS ANY MINIMUM REQUIREMENTS, WHETHER OR NOT SPECIFIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
7.2 IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER TO EMPLOYSTREAM IN THE CALENDAR YEAR IN WHICH THE CLAIM IS BROUGHT. THE PARTIES AGREE THAT EMPLOYSTREAM WILL BE LIABLE FOR DAMAGES ONLY IF IT FAILS TO EXERCISE ORDINARY CARE, AND THAT IT WILL BE DEEMED TO HAVE EXERCISED ORDINARY CARE IF ITS ACTION OR FAILURE TO ACT IS IN CONFORMITY WITH COMMERCIALLY REASONABLE PRACTICES.
7.3 NEITHER PARTY MAY BE HELD LIABLE TO THE OTHER, OR TO ANY THIRD-PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.
7.4 UNDER NO CIRCUMSTANCES MAY EMPLOYSTREAM BE DEEMED OR HELD LIABLE IN ANY WAY WHATSOEVER IN RESPECT OF THE CUSTOMER DATA INPUT INTO THE SOFTWARE PRODUCT, INCLUDING ANY ERRORS OR OMISSIONS IN THE CUSTOMER DATA, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE CUSTOMER DATA.
7.5 EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS §7 AND IN §8 AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THE AGREEMENT.
7.6 In the event of a Customer Claim alleging EmployStream made a misrepresentation in clause (c) of §6, EmployStream will have the right to immediately terminate the Software License as to that portion, or those portions, of the Software Product contemplated in such Customer Claim and/or (a) procure for the Customer the right to use that portion, or those portions, of the Software Product contemplated in such Customer Claim and/or (b) provide a non-infringing substitute that would not give rise to a Customer Claim, provided, however, that any exercise of such right may not be deemed to limit the applicability of any other limitation on liability set forth in these Terms.
8.1 EmployStream will indemnify, defend and hold harmless the Customer and the Customer Users from and against any liabilities, costs, fees and/or damages that arise out of any Customer Claim. The Customer will notify EmployStream of each Customer Claim as soon as the Customer is aware of its occurrence and provide to EmployStream any information or documents related to the Customer Claim and/or otherwise requested by EmployStream. EmployStream may control the defense of any Customer Claim brought by a third-party. EmployStream may also decide if and when to settle any Customer Claim brought by a third-party provided that, in connection with such settlement, the Customer is released from liability with respect to such Customer Claim. If EmployStream’s defense and/or settlement of any Customer Claim is compromised by the Customer’s failure to comply with this §8.1 and/or EmployStream’s requests in respect of the Customer Claim, the Customer will be liable, to the extent of such failure, for the expenses, costs and/or damages incurred by the Customer and/or EmployStream. Notwithstanding that set forth above, neither the Customer nor any third-party may seek indemnification from EmployStream for any Customer Claim that asserts the Software Product infringes upon the intellectual property rights of a third-party if (a) the Customer, the Customer Users and/or any third-party acting on behalf of either of the same used or uses the Software Product in a manner (1) inconsistent with these Terms and/or (2) contrary to its intended use and or purpose and/or (b) such assertion of infringement relates solely to Customer Data.
8.2 The Customer will indemnify, defend and hold harmless EmployStream from and against any liabilities, costs, fees and/or damages that arise out of any EmployStream Claim. EmployStream will notify the Customer of each EmployStream Claim as soon as EmployStream is aware of its occurrence and provide to the Customer any information or documents related to the EmployStream Claim and/or otherwise requested by the Customer. The Customer may control the defense of any EmployStream Claim brought by a third-party. The Customer may also decide if and when to settle any EmployStream Claim brought by a third-party provided that, in connection with such settlement, EmployStream is released from liability with respect to such EmployStream Claim. If the Customer’s defense and/or settlement of any EmployStream Claim is compromised by EmployStream’s failure to comply with this §8.2 and/or the Customer’s requests in respect of the EmployStream Claim, EmployStream will be liable, to the extent of such failure, for the expenses, costs and/or damages incurred by EmployStream and/or the Customer.
9. Term & Termination.
9.1 These Terms will remain in full force and effect until either Party terminates according to this §9. Immediately upon such a termination, (a) the Software License will terminate and the Customer will have no further right, title or interest in the Software Product and (b) the Customer will immediately pay to EmployStream all Amounts Due. EmployStream will destroy the Confidential Information and the Customer Data upon any such termination unless, prior to the Termination Date, the Customer notifies EmployStream that the Customer desires for it to be returned. Upon any such request by the Customer, and provided that the Customer has otherwise complied with its obligations according to these Terms, EmployStream will, at the Customer’s expense, return the Confidential Information and/or the Customer Data to the Customer. If the Customer has not otherwise complied with its obligations according to these Terms, EmployStream will retain the Confidential Information and/or the Customer Data for 30 days after the Termination Date and if, during such 30-day period, the Customer complies with its obligations according to these Terms, EmployStream will, at the Customer’s expense, return the Confidential Information and/or the Customer Data to the Customer.
9.2 Either Party may terminate the Agreement for no reason whatsoever. To do so, the Terminating Party must notify the other Party of the termination at least 90 days prior to the Termination Date.
9.3 Either Party may terminate the Agreement if the other Party (a) made a material inaccuracy in the representations and warranties set forth in §6, and/or (b) materially breaches a covenant made in these Terms and/or (c) materially fails to perform, or comply with, its obligations according to these Terms. To do so, the Terminating Party must give such other Party detailed written notice of, and at least 30 days to cure, such material breach or material failure. If such other Party fails to do so, the Terminating Party must notify the other Party of the termination at least 30 days prior to the Termination Date.
9.4 Either Party may terminate the Agreement if the other Party (a) files a petition in bankruptcy, (b) has filed against it a petition in bankruptcy and such petition is not dismissed within 90 days of being so filed, (c) becomes insolvent according to applicable law in which it was formed or (d) makes an assignment, or enters into some other arrangement, for the benefit of its creditors. To do so, the Terminating Party must notify such other Party of the termination prior to the Termination Date.
The applicable provisions of §§4, 5, 7, 9, 11, 12.1, 12.2, 12.5, 12.7, 12.8 and 12.9, and this §10, will survive any termination.
11. Defined Terms.
“Agreement” means the agreement set forth in the Order Form and these Terms.
“Amounts Due” means any amounts due to EmployStream by the Customer, including the Annual Fee, the Setup Fee and any out-of-pocket expenses actually incurred by EmployStream in performing its obligations to the Customer.
“Annual Fee” means an amount equal to that set forth in the Order Form as the “Annual Fee” (if any) and is the amount to be paid to EmployStream by the Customer in accordance with §2.
“Customer” means the party submitting the Order Form to EmployStream.
“Customer Claim” means a claim for damages (a) resulting from any violation or breach of these Terms by EmployStream and/or (b) resulting from any material inaccuracy in the representations and warranties made by EmployStream in §6.
“Customer Data” means all data and media (a) provided by the Customer to EmployStream for purposes of being input into and/or using the Software Product or (b) input by a Customer User into, or while using, the Software Product.
“Customer User” means any employee or other individual who the Customer authorizes to use the Software Product (whether directly or indirectly).
“Confidential Information” means the Customer’s information provided to EmployStream and that is not generally known to the public, that constitutes a trade secret and/or that relates to the Customer’s business and/or technical, financial or other affairs.
“EmployStream” means EmployStream, LLC, an Ohio limited liability company.
“EmployStream Claim” means a claim for damages (a) resulting from any third-party action or proceeding brought against EmployStream and arising as a result of the Customer’s, and/or the Customer Users’, use of the Software Product, (b) resulting from the Customer’s, or any Customer User’s, misuse of the Software Product and/or any other violation or breach of these Terms by the Customer and/or (c) resulting from any material inaccuracy in the representations and warranties made by the Customer in §6.
“Implementation Services” means the services determined by EmployStream that are reasonably necessary to allow the Customer and the Customer Users to use the Software Product.
“Party” means either EmployStream or the Customer.
“Setup Fee” means an amount equal to that set forth in the Order Form as the “Setup Fee” (if any) and is the amount to be paid to EmployStream by the Customer in accordance with §2.
“Signature Date” means the signature date set forth in the Order Form.
“Software License” means a limited, nonexclusive and nontransferable license from EmployStream to the Customer for the Customer Users to use the Software Product in accordance with these Terms.
“Software Product” means the web-based application made available by EmployStream for the Customer to manage components of its human resources processes.
“Start Date” means the later of the 30-day anniversary of the Signature Date.
“Subscription Term” means the period set forth in the Order Form as the “Subscription Term”, which period begins on the Start Date.
“Terms” means these Terms of Service.
“Terminating Party” means the Party desiring to terminate the Agreement.
“Termination Date” means the date as of which the Terminating Party desires for the Agreement.
12. General Provisions.
12.1 Each Party will comply in all material respects with all applicable laws in performing its obligations according to these Terms.
12.2 Any notice to be delivered to either Party according to these Terms will be (a) delivered according to the contact information set forth in the Order Form and (b) deemed effective (1) upon receipt, when delivered personally or by courier, (2) the day delivered, if delivered by a reputable overnight delivery service, (3) upon delivery, if delivered via email and delivery is confirmed, or (4) 48 hours after being deposited for delivery via certified mail with postage prepaid. Notice of any change to such contact information must be given according to this §12.2. In connection with the Customer Users’ use of the Software Product, EmployStream may need to provide certain notifications (e.g., service announcements and/or administrative messages). The Customer Users may not be able to opt out of receiving these notifications.
12.3 The Agreement constitutes the entire agreement between the Parties as to the Software Product and supersedes all prior documents and negotiations between the Parties. The Agreement may not be construed against either Party by reason of such Party’s drafting or preparing the same.
12.4 These Terms may be amended by EmployStream at any time provided that it notifies the Customer of the amendment before it takes effect.
12.5 The failure of either Party to insist upon the other Party’s performing according to these Terms, and/or the failure of either Party to exercise its rights according to these Terms, may not be construed as a waiver by such Party.
12.6 Neither Party may assign its rights or obligations according to these Terms without the other Party’s consent other than in connection with such Party’s sale of all or substantially all of its business or as part of a merger, consolidation or reorganization or its business.
12.7 Neither Party may be held liable for its failure to perform according to these Terms, or for any loss, due to causes beyond its reasonable control, including work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements.
12.8 Unless the context clearly requires otherwise, (a) the singular includes the plural and vice versa, (b) “including” means “including without limitation”, (c) “from” means “from and including” and “to” means “to but excluding” and (d) any reference to a “§” or “§§” in these Terms will be construed as a reference to a section of these Terms.
12.9 The Agreement may not be construed as creating or constituting a partnership, joint venture or agency relationship between the Parties. The legal relationship between the Parties is strictly that of licensor and licensee. For the avoidance of doubt, neither Party has the power or authority to assume or create any obligation or responsibility on behalf of the other.
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