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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