This Master Services and License Agreement (“MSA”) sets forth the terms and conditions that apply to access and use of the Services (as defined below) of Libre, LLC dba Hire Bloom, a Utah limited liability company (“Provider”) by the customer set forth on an Order Form submitted to Provider (“Customer”). This MSA, together with (i) any order form submitted by Customer and accepted by Provider (“Order Form”), (ii) any statement of work on Provider’s form submitted by Customer and accepted by Provider after the Effective Date (“SOW”), (iii) Provider's Privacy Policy that can be found at https://www.hirebloom.com/privacy-policy, and (iv) Provider’s Data Processing Agreement (“DPA”) that can be found at https://www.hirebloom.com/data-processing-agreement, constitute the “Agreement.” Provider and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when Customer accesses or uses the Services, (2) when Customer clicks an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when Customer submits a signed Order Form (the “Effective Date”).
BEFORE ACCEPTING THIS AGREEMENT, CUSTOMER IS ADVISED TO CAREFULLY READ THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE DOCUMENTATION. BY ACCEPTING THIS AGREEMENT, CUSTOMER (1) AGREES TO BE BOUND BY AND BECOMES A PARTY TO THIS AGREEMENT AND (2) CONFIRMS THAT THE INDIVIDUAL ENTERING THIS AGREEMENT HAS AUTHORITY TO SO BIND CUSTOMER WITHOUT FURTHER ACTION BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT SUBMIT A SIGNED ORDER FORM OR CLICK “I AGREE…” AND THE SERVICES WILL NOT BE USABLE.
WHEREAS, Customer desires to utilize Provider’s Services as described herein to provide payment instructions to Provider that will permit Customer to make payments through the Services to Customer’s contractors or employees, and Provider desires to provide Customer access to such Services, subject to the terms and conditions set forth in the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
1.1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2. “Authorized Users” means Customer’s employees and agents (a) who are authorized by Customer to access and use the Services in accordance with the Agreement, and (b) for whom access to the Services has been purchased hereunder; provided, in each case, that no competitor of Provider (as reasonably determined by Provider) may be an Authorized User.
1.3. “Customer Data” means information, data and other content, in any form or medium, that is collected, uploaded or otherwise processed, directly or indirectly by Customer or End Users through the Services. Customer Data may, in some situations, include Authorized Users’ or End Users’ Personal Information. Customer Data does not include Resultant Data or Usage Data.
1.4. “Customer Systems” means Customer’s internal systems, including but not limited to computers, servers, accounting software, website, and point-of-sale system.
1.5. “Data Protection Laws” has the meaning ascribed to it in the DPA.
1.6. “End User” means Customer’s employees or contractors who (a) receive payments from Customer through the Services; (b) access the Services through Customer’s websites and/or mobile applications; and (c) who have accepted and are bound by the EULA.
1.7. “EULA” means Provider’s Terms of Service or other end user license agreement reasonably acceptable to Provider to which each End User must agree to be bound before accessing the Services.
1.8. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, data or database protection, or other intellectual property rights Laws and all similar or equivalent rights or forms of protection, in any part of the world.
1.9. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. “Law” includes, without limitation, all Data Protection Laws.
1.10. “Personal Information” means information which may be used, alone or in conjunction with any other information, to identify a specific person or to make a specific person identifiable, including, without limitation, any (1) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (2) unique biometric data, such as fingerprint, voice print, retina, iris image, or other unique physical representation; (3) unique electronic identification number, address, or routing code; or (4) telecommunication identifying information or access device, in each case to the extent protected under any Data Protection Law.
1.11. “Resultant Data” means data or information related to or derived from Customer Data or an Authorized User's or End User’s Personal Information that is processed by Provider in an aggregate, de-identified, or anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.12. “Services” means Provider’s services identified on the Order Form, each SOW (as applicable), and the online application, platform, and/or application programming interface that enables Customer, Authorized Users, and End Users to access such services.
1.13. “Third-Party Materials” means any files, content, designs, models, data sets, project information, materials, documents, computer programs or similar material (including, without limitation, any modules and components, functions and features of a computer program), media, audio, images, names, email addresses, comments, notes, links and other content, data, information, applications and services made available to Customer by or on behalf of any third party through or in connection with a Service or any website owned or operated by or for Provider.
1.14 “Usage Data” means any data or other information processed by or on behalf of Provider relating to the provision, access, use, operation, or performance of the Services by or on behalf of Customer and its Authorized Users, including any data or other information derived therefrom.
2. Services.
2.1. License and Use of Services.
a. Subject to and conditioned on Customer’s (including the Authorized Users’) compliance with the terms of the Agreement, Provider grants to Customer a non-exclusive, limited, revocable, non-transferable, and non-sublicensable (except to End Users) right to access and use the Services during the Term (as defined below), solely for use by Customer and its Authorized Users and End Users, where applicable, in accordance with the Agreement. Such use is limited to Customer’s internal use and Customer’s provision of access to the Services (whether alone or in combination with other Customer products or services) to End Users through Customer’s websites and/or mobile applications.
b. Provider will provide to Customer the Access Credentials within a reasonable time following the Effective Date. Access Credentials are personal to Customer and each Authorized User and may not be shared with or used by any other party. Customer has and will retain sole responsibility for all access to and use of the Services by any Customer personnel and each Authorized User and will securely administer the distribution and use of all Access Credentials to protect against any unauthorized access to or use of the Services. Prior to granting access to the Services to any End User, Customer shall require such End User to accept and agree to be bound by the EULA.
c. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, Customer is solely responsible for (i) employing, engaging, or otherwise contracting (directly or through an employer of record) with its employees and contractors that will be End Users hereunder and (ii) for complying with all applicable Laws in connection with its relationships with End Users.
2.2. Use Restrictions.
a. Customer will use the Services only for Customer’s internal business purposes and only in accordance with Provider’s reasonable written instructions delivered to Customer. Customer will not (and will not allow any Authorized User or third party to): (a) copy, modify, adapt, translate or otherwise create derivative works or improvements of the Services, (b) reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to discover the source code of the Services, in whole or in part, (c) rent, lease, lend, sell, sublicense, assign, distribute, publish or otherwise transfer or make available rights in or to the Services except to End Users in accordance with this Agreement, (d) remove, delete, alter, or obscure any specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, including any copy thereof, (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services, or (f) access or use the Services in any manner or for any purpose: (i) that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer); (ii) to gather competitive information or compete directly or indirectly with Provider; or (iii) that violates any applicable Law. Customer agrees to comply with all applicable Laws and regulations in Customer’s use of and access to the Services and in Customer’s provision of the Services to End Users.
b. Customer acknowledges that use of the Services is subject to compliance with United States and other applicable country export control and trade sanctions Laws, rules, and regulations, including, without limitations the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury (“Export Control Laws”). Customer is solely responsible for complying with the Export Control Laws and monitoring any modifications to them. Customer shall not use the Services to disclose, transfer, download, export, or re-export, directly or indirectly, Customer Data, Third-Party Materials, or any other content or material to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject.
When Company becomes aware of a Personal Data Breach, Company will inform Client without any undue delay, and at least within the time required by Data Protection Laws. Company will reasonably cooperate with Client and provide information to fulfil Client’s data breach obligations under Data Protection Laws. Company will also take additional measures and actions, in its sole discretion or as required by Data Protection Laws, that are necessary to remedy or mitigate the effects of the security incident, and keep Client informed of every material development connected with the security incident. Except as required by law, Company will not take action to notify Data Subjects of any security incident.
2.3. Professional Services. In addition to the technical support services described above, Provider will provide any professional services, including without limitation, recruiting, screening, and interviewing talent for Customer, or other services (“Professional Services”) that are described in an applicable Order Form or SOW that may be executed between the Parties from time to time. Provider will diligently perform the Professional Services in accordance with the applicable Order Form or SOW, including any specifications contained therein.
a. Non-Exclusivity of Professional Services. Customer acknowledges that Provider may provide services similar to the Professional Services on behalf of other Provider customers. Provider may work for other customers without restriction, even if work is done for a potentially competing company or individual. Nothing in the Agreement may be construed to limit Providers’ business, including the provision of the Services to other Provider customers.
b. Ownership. Notwithstanding anything to the contrary in the Agreement or any SOW, Provider retains ownership of all of Provider’s Intellectual Property Rights directly or indirectly related to the Services, including all Professional Services performed under any SOW, whether now existing or whether conceived, developed, or reduced to practice, solely or jointly with Customer, in connection with the Professional Services or otherwise related to Provider’s Services under this Agreement.
2.4. Account Creation. In order for the Customer to pay End Users through the Services, the Customer must create a Customer account which gives access to the Services and platform and includes user information, payment history, and other information related to the use of the Services (“Account”) and has to trigger an invitation for each End User to register a personal Account. The Customer represents and warrants that: (a) all required registration information Customer submits is truthful and accurate; (b) Customer will maintain the accuracy of its own information; (c) and Provider may suspend or terminate any End User Account in accordance with the EULA. Provider and any of its financial partners or designees may use account creation information to perform due diligence and background check procedures on Customer or End Users before creating an Account. Provider uses US Export Controls and Sanctions, including but not limited to the Office of Foreign Assets Control of the US Department of the Treasury (“OFAC”) sanctions list, among others, and Provider also may utilize different background check companies selected by Provider to perform background checks.
2.5. Customer Onboarding. Provider will perform, directly or through a third party, Customer Due Diligence (“CDD”) in the form of Know Your Business (“KYB”) and may request information including but not limited to the Customer’s legal name, DBA name, type of business, tax ID, key stakeholders and beneficial owners, among others, all of which shall be deemed as Customer Confidential Information. By creating an Account, Customer (inclusive of any natural person that submits an application on Company’s behalf) represents and warrants that at the time of application and at all times that Customer uses the Services: that the Customer is a business entity (e.g., C-corp, S-corp, LLC, LLP); and the designated natural person that applies for the Account is an authorized representative of the Customer and is authorized to submit the application and all required information on behalf of Customer, and enter into binding agreements on behalf of Customer.
2.6. End User Onboarding. End Users will have access to the Services depending on their location. End Users will be asked for information such as name, country of residence, nationality, type of compliance document, residence document number, tax ID, information about tax residence and tax situation, among others. Requesting such information does not make Provider or its affiliates or any third parties liable for any misclassification before government authorities. Once the Know Your Customer (“KYC”) process is completed and successful, the End User Account will be created. When required for providing the Services, Provider may share the information described in Sections 2.5 and 2.6 with third parties, including but not limited to, Payment Service Providers. “Payment Service Provider(s)” are third-party financial service providers who direct and transmit the payment of funds to End Users hereunder, including, payments from Customer and settlement of funds to End Users as part of the Services, based on payment instructions given to Provider by Customer.
2.7. Account Closure. The Customer can close any of its Customer Accounts and End User Accounts for any reason. Upon Customer’s written request, the End User will be offboarded from the Customer Account, signaling that the End User will not receive any credits to their receivable balance from the Customer. However, the End User may still use their Account independently of the Customer and may be able to access the features of the Account (including but not limited to withdrawals and funds) even after being offboarded from the Customer Account. If an End User Account is inactive for a period of sixty (60) consecutive days, then the End User Account may be considered dormant. When the End User Account is deemed dormant, Provider may initiate a withdrawal for any pending balances to the most recently used withdrawal method by the End User, as long as the withdrawal method is valid and active. If the most recently used withdrawal method is invalid or inactive, then Provider will return funds to its last source, which may be a principal such as the Customer. Provider will use commercially reasonable efforts to contact the End User to reactivate the End User Account before transferring the remaining balance. Notwithstanding the foregoing, Provider may use commercially reasonable efforts to contact End User to ensure balances in their Account are transferred to a preferred account upon being deemed dormant.
2.8. Usage Guidelines. The Services may permit Customer, Authorized Users, and End Users to upload data, information, or other materials, including Customer Data, in a manner that makes such data, information, or other materials publicly available and/or accessible to other users of the Services. Customer is solely responsible for any data, information, or other materials, including Customer Data that it uploads to the Services. Neither Customer nor any Authorized User will use the Services to do any of the following:
a. Harass, threaten, disrupt, or defraud other users or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment;
b. Make unsolicited offers, advertisements, political campaigns, proposals, or send junk mail or “spam” to other users;
c. Impersonate another person or access another user’s account;
d. Share Provider-issued passwords with any third party or encourage any other users to do so;
e. Upload any material that is damaging to computer systems or data of Provider or users of the Services (e.g. viruses, corrupted files, or any other similar software files); and
f. Upload or post any material that is inappropriately violent, unduly graphic, pornographic, bigoted, derogatory, racist, or offensive, or that violates the Intellectual Property Rights of any third party.
Customer shall retain the right, and hereby provides Provider with the right, to monitor any data, information, or other materials that End Users may upload to the Services and to remove any data, information, or other material that either Customer or Provider determines, in its sole discretion, violates the foregoing requirements; provided, that Provider takes no responsibility and assumes no liability for any data, information, or other material that is uploaded to the Services by Customer or any Authorized User or End User.
2.9. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful.
2.10. Suspension or Termination of Services. Provider may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any End User’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if Provider believes that there has been a material breach of Customer’s obligations under the Agreement, a security breach, a violation of Law, a violation of Section 2.2, Section 2.8, or with respect to an End User, the EULA, or an Authorized User’s or End User’s request to opt-out of the Services or exercise of any right under Data Protection Laws. This Section 2.10 does not limit any of Provider’s other rights or remedies, whether at Law, in equity, or under the Agreement.
2.11. Technical Support Services. So long as Customer is current in payment of the all fees and is not in default of any material terms of the Agreement, Provider shall provide, directly or through a third party, technical support to Customer for the Services via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”).
2.12. Data Collection.
a. Customer acknowledges that Provider may need to access the Customer Systems to fully provide the Services and hereby authorizes Provider to access the Customer Systems as needed to provide the Services.
b. To access the Customer Systems, Customer authorizes Provider to install a software utility on the Customer Systems to process Customer Data to provide the Services.
c. Provider shall use commercially reasonable technical and organizational safeguards and mechanisms to protect confidentiality and integrity while processing the Customer Data through the Customer Systems.
d. Customer acknowledges that Provider’s ability to timely and efficiently provide the Services is conditioned on the accuracy, efficacy, and consistency of the Customer Data located on the Customer Systems. Customer is solely responsible for the accuracy, efficacy, and consistency of the Customer Data on the Customer Systems.
e. Provider may, in Provider’s reasonable discretion, convert Customer Data to Resultant Data or Usage Data. Customer acknowledges that Provider’s processing of all data, including Customer Data, Resultant Data, and Usage Data, is governed by Provider’s Privacy Policy.
2.13. Balance and Payment Methods. Through the End User Account, End Users will (a) have access to information on the balance of the amounts that Customer has instructed Provider to pay to the End User (“Amounts Receivable”) under the terms of their agreements(s) with the Customer and (b) may request that funds in the End User Account balance be transferred to their personal accounts and/or third party accounts via the available payment methods. Transfers to both personal and third party accounts will be subject to additional transaction screening, as necessary.
2.14. Transactions through Regulated Partners. All payment services, including withdrawal services, made via the End User Account will be processed by licensed and registered money service businesses or Payment Service Providers or similar financial institutions that are regulated and subject to periodic examination by their respective regulatory state or Federal agencies (“Regulated Institutions”). Regulated Institutions usually report transactions on a periodic basis to financial authorities in the End User’s jurisdiction. Therefore, End User Account transactions may be subject to reporting and other additional obligations by Provider or the End User.
2.15. End User Balances with Banking Partner. The Amounts Receivable in the End User Accounts and funds received by Provider from Customer as payments to be made to End Users through the Platform is held by third party Regulated Institutions.
2.16. Payment Agents. For the avoidance of doubt, Provider does not and will not provide banking, deposit taking, stored value, escrow, insurance, or any other financial service. Provider’s third-party licensors will act as a payment agent in relation to the End User and receive from the Customer all payments due to the End User. Customer’s End Users shall appoint Provider’s designee as their limited authorized payment collection agent (“Payment Agent”) for the sole purpose of facilitating the receipt of payments. Upon Provider’s or its designee’s receipt of the relevant payment transfer instructions from an End User through the End User’s Account, Provider or its designee shall direct a Regulated Institution to transfer funds from the End User Account to the End User’s designated bank account and/or preferred payment method. All payment services, including withdrawal services, will be provided by Payment Service Providers.
2.17. Customer Responsibility for Payment Information. The Customer shall provide Provider with accurate payment information (including but not limited to payment amounts)—i.e., information as received from the End User. Customer acknowledges and agrees that neither Provider nor any of its affiliates, subsidiaries, licensors, or any of their respective shareholders, members, managers, directors, officers, employees, contractors, agents and/or representatives shall be liable for, and Customer shall indemnify and hold Provider, its affiliates, subsidiaries, and licensors, and their respective shareholders, members, managers, directors, officers, employees, contractors, agents and/or representatives harmless from any and all losses, claims, damages or expenses incurred by the Customer that arise from any payment incorrectly made by Provider or its designee to an End User as a result of inaccurate information provided to Provider by the Customer. Provider and its third-party licensors shall have no liability for payment transactions made incorrectly by Provider or its designee due to incorrect instructions that were provided by the Customer.
2.18. Currency and Exchange Rates. All balances, statements and financial information available to the End User through the End User Account shall be set forth in United States Dollars. In the event that an End User’s receivable is set forth in a currency other than United States Dollars in their independent agreement with Customer, Customer and/or End User represent and warrant that they are aware that the use of the End User Account may imply differences between (i) the local currency equivalent in United States Dollars paid by the Customer to Provider or its designee which is subsequently credited into the End User Account balance and (ii) the amount received by the End User in local currency and/or other monetary value after providing payment instructions to their designated payment method, due to the time period from credit into the End User Account balance and the End User’s instructions to transfer the amount. Neither Provider nor its designee shall be responsible or liable for any exchange rate differences and/or fluctuations caused by the use of the End User Account for contracts stated in currencies other than United States Dollars. Neither Provider nor its designee will be responsible or liable for foreign exchange obligations applicable to the End User in their respective jurisdictions and they must consult with their tax advisors and/or accountants in order to comply with said obligations.
2.19. Compliance. To comply with applicable anti-money laundering and terrorist financing regulations, fraud regulations, and preventing unauthorized transactions, Provider, its designated Payment Agent, and Payment Service Providers will collect, store and analyze End User payment information. Payment Service Providers may also collect payment information necessary to process End Users’ payments. Except for payment amount and payment status details stored in an End User’s dashboard, Provider does not have access to payment information provided to Payment Service Providers, and such information will be subject to the privacy policy of each Payment Service Provider.
2.20. Fees. Transactions, including withdrawals, made from the End User Account are subject to fees by the Payment Service Providers. All such fees will be passed through to the End User, so the End User will be responsible for paying any such fees. End Users will be able to view the details of a given transaction in a pop-up or downloaded transaction summary (pdf format) which will show details for the payment method selected, and/or all applicable fees and foreign exchange rates. Any withdrawal limits will be conspicuously and clearly communicated and reasonable notice of any changes to fees and withdrawal limits will be provided in advance.
3. Fees and Payment. Customer shall pay Provider the fees set forth in the applicable Order Form or any applicable SOW (the “Fees”), which Fees, for clarity, are in addition to payment amounts Customer owes to End Users for services rendered by End Users to Customer. Unless otherwise set forth in the applicable Order Form or applicable SOW, invoices are due and payable in United States dollars at the time applicable payments to End Users are processed through the Services or if no payments are made to End Users in a given month, on the same day of the month as Customer’s normal payroll date through the Services, in each case, without deduction or setoff. Customer shall pay or reimburse Provider for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of or related to the Agreement or the transactions contemplated hereby, other than net income taxes imposed on Provider. Any amount not paid when due is subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Provider does not provide refunds for the Services.
4. Confidentiality.
4.1. Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 4.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, or information that should by its nature be considered confidential, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, the Services and the underlying data (including Resultant Data and Usage Data) are the Confidential Information of Provider and Customer Data is the Confidential Information of Customer.
4.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not known to the Receiving Party to be under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
4.3. Protection of Confidential Information. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information except to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 4.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 4. Each Party shall safeguard the other Party’s Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care, shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information, and cooperate with the Disclosing Party to prevent further unauthorized use or disclosure.
4.4 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 4.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 4.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
5. Non-Solicitation. During the Term and for one (1) year thereafter, Customer shall not, and shall not assist any other person to, directly or indirectly recruit, employ, engage as an independent contractor, or solicit for employment or engagement as an independent contractor any person that is, or within the six (6) months prior to such recruitment, hiring, engagement or solicitation, was, employed or engaged as an independent contractor by Provider; provided, that the foregoing obligation shall not apply to a bona fide response to a general job posting or solicitation that was not targeted at a particular employee or contractor.
6. Intellectual Property Rights.
6.1. Services. As between Customer and Provider, Provider and its third-party licensors will retain ownership of all right, title, and interest in and to the Services and any underlying data (excluding Customer Data, but including Resultant Data and Usage Data), including all Intellectual Property Rights therein, and with respect to Third-Party Materials, the applicable third-party providers own all right, title and interest, including all Intellectual Property Rights, in and to such Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Services or underlying data (other than the Customer Data) except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to any restrictions in the Agreement (or such third-party license, as applicable). All other rights in and to the Services are expressly reserved by Provider. To the extent Customer has any right, title or interest in the Resultant Data or Usage Data, Customer hereby assigns all such right, title, and interest in and to such Resultant Data and Usage Data, including in each case, all Intellectual Property Rights relating thereto. Customer hereby grants to Provider a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets of the business unit performing the Services or equity, or operation of law), sublicensable license to use, copy, modify, or distribute, including by incorporating into the Services, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its users, and any Authorized User, relating to the operation of the Services. Included in such license is the right to (i) identify or reference Customer as a user of Provider’s Services and a right to use Customer’s logo in connection therewith, and (ii) perform and make public a case study with respect to Customer and its use of the Services and results of the Services.
6.2. Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data and the Customer Systems, including all Intellectual Property Rights embodied therein, subject to the rights and permissions granted in this Section 6.2. Customer hereby grants to Provider a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable and transferable license to (i) use, copy, process, transmit, store, host, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the Customer Data in connection with the Services and (ii) otherwise access, use or make reference to any Intellectual Property Rights in the Customer Data: (a) to provide the Services including to enable the Customer and any Authorized Users to access and use the Services; (b) for diagnostic purposes; (c) to make any changes or improvements to the Services, including as set forth in Section 2, whether requested by the Customer or not; (d) to develop other Services; and (e) as reasonably required for the performance of Provider’s obligations under the Agreement. For clarity, the foregoing license continues after termination of the Agreement with respect to any Customer Data that Customer or any Authorized User posts or otherwise makes publicly available through the Services. To the extent any Customer Data constitutes Personal Information, the terms of Provider’s Privacy Policy apply.
6.3. Personal Information. Each Party shall use and process any Personal Information that such Party has access to in connection with the Agreement in accordance with the DPA and applicable Data Protection Laws.
7. Representations, Warranties and Covenants.
7.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement; and (c) when executed/electronically accepted and delivered by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
7.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. To the extent Customer has access to and utilizes any Authorized Users' Personal Information in the Services, Customer represents and warrants that Customer has secured all permissions necessary to allow Provider to process such Personal Information.
7.3. Third Party Software. The Services may contain or require use of third-party software that require notices or additional terms and conditions. In order to use the functionality related to such third-party software, Customer must agree to and comply with any additional terms and conditions set forth in applicable third-party notices or agreements. Customer acknowledges that failure or refusal to accept such third-party terms may result in reduced, limited, or impaired functionality of the Services, for which Provider shall have no responsibility or liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, PROVIDER MAKES NO WARRANTIES AND ACCEPTS NO LIABILITY WITH RESPECT TO THIRD-PARTY SOFTWARE..
7.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES AND COVENANTS SET FORTH IN SECTION 7.1, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PROVIDER DOES NOT WARRANT THAT CUSTOMER'S USE OR INTEGRATION OF THE SERVICES WITH CUSTOMER'S PLATFORM WILL SATISFY CUSTOMER'S REQUIREMENTS OR SPECIFICATIONS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification.
8.1. Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees (“Losses”) incurred by Customer resulting from any claim or action by a third party that Customer’s use of the Services (excluding Third-Party Materials) in accordance with the Agreement infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from (a) modification of the Services other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification, (b) combination of the Services (or any portion thereof) with any other product or service, (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider, (d) Customer Data, (e) Authorized User or End User Personal Information (unless required by Data Protection Laws), (f) Provider implementing instructions or requests of Customer, (g) any inaccuracy, inefficiency, or omission related to the Customer Systems, or (h) any act, omission, or other matter described in Section 8.2, whether or not the same results in any claim or action against or Losses by any Provider Indemnitee.
8.2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its affiliates and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any claim or action by a third party (other than an affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from (a) Customer’s and its Authorized Users’ and End Users’ use of the Services, (b) Customer Data, including any processing of Customer Data whether or not through the Customer Systems, by or on behalf of Provider in accordance with the Agreement, (c) any other materials or information (including any documents, data, specifications, content, or technology) provided by or on behalf of Customer or any Authorized User, (d) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the Agreement, or (e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party, including Customer’s Authorized Users, on behalf of Customer, in connection with the Agreement. The foregoing obligation does not apply to the extent that the alleged Losses arise from any act or other matter described in Section 8.1 to the extent Provider is indemnifying Customer for such act or other matter.
8.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any claim or action for which such Party believes it is entitled to be indemnified. The Party seeking indemnification shall cooperate with the other Party at the indemnitor’s sole cost and expense. The indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the indemnitor’s sole cost and expense. The Party seeking indemnification may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The indemnitor shall not settle any claim or action in any manner that adversely affects the rights of the Party seeking indemnification without that Party’s prior written consent, which shall not be unreasonably withheld or delayed. If the indemnitor fails or refuses to assume control of the defense of such claim or action, the Party seeking indemnification shall have the right, but no obligation, to defend against such claim or action, including settling such claim or action after giving notice to the indemnitor, in each case in such manner and on such terms as the Party seeking indemnification may deem appropriate. The Party seeking indemnification’s failure to perform any obligations under this Section 8.3 will not relieve the indemnitor of its obligations under this Section 9, except to the extent that the indemnitor can demonstrate that it has been prejudiced as a result of such failure.
8.4. Mitigation. If any of the Services are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense (a) obtain the right for Customer to continue to use the Services materially as contemplated by the Agreement, (b) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, as applicable, under the Agreement, or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and require Customer to immediately cease any use of the Services or any specified part or feature thereof, provided that if such termination occurs prior to the first anniversary of the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 10.3, Customer will be entitled to a pro rata refund.
8.5. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability.
9.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR THE OTHER PARTY’S LOST REVENUES, LOST PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, EACH PARTY’S (AND ITS AFFILIATES’) TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Term and Termination.
10.1. Term. The Agreement commences as of the Effective Date and will continue in effect for twelve (12) months from such date (the “Initial Term”), unless earlier terminated by a Party in accordance with the terms of this Agreement. Following the Initial Term, this Agreement automatically renews for successive twelve (12) month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party provides notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current Term.
10.2. Termination. In the event Provider loses its license or other right to provide access to any third-party intellectual property that is critical to the performance of the Services, Provider may terminate this Agreement upon written notice to Customer (and Provider will endeavor to provide reasonable prior notice of any such termination. In addition to any other express termination right set forth elsewhere in this Agreement either Party may terminate the Agreement, effective on written notice to the other Party, if (i) the other Party materially breaches the Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach, or (ii) if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, in each case that is not discharged within sixty (60) days; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.3. Effect of Termination or Expiration. Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:
a. all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate and Customer must immediately cease use and access of the Services;
b. each Party shall immediately cease all use of any Confidential Information of the other Party and (i) promptly return or destroy, at the Receiving Party’s election and subject to applicable Law, all documents and tangible materials containing, reflecting, incorporating, or based on Confidential Information; and (ii) permanently erase all Confidential Information from all systems the Receiving Party directly or indirectly controls, provided that, for clarity, Provider’s obligations under this Section 10.3 do not apply to any Resultant Data or Usage Data. Further, Customer shall take all steps necessary to uninstall all software utilities used for Provider to access the Customer Systems; and
c. notwithstanding anything to the contrary in the Agreement, the Receiving Party may retain Confidential Information (i) to the extent and for so long as required by applicable Law and (ii) in the Receiving Party’s backups, archives, and disaster recovery systems until such Confidential Information is deleted in the ordinary course. For the avoidance of doubt, all information and materials described in this Section 10.3(c) will remain subject to all confidentiality, security, and other applicable requirements of the Agreement.
11. Miscellaneous.
11.1. Force Majeure. Provider will be excused from performance of the Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
11.2. Entire Agreement. This MSA (including any modification hereof in accordance with Section 11.6), together with the Order Form, any SOW entered into between the Parties, and Provider’s Privacy Policy and DPA, represent the sole and complete agreement between Customer and Provider concerning its subject matter, and supersedes all prior agreements (both written and oral) between the Parties with respect thereto.
11.3. Severability. If any term or provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of the Agreement will continue in full force and effect.
11.4. Governing Law; Dispute Resolution.
a. Utah law governs the Agreement without reference to its conflict of law principles.
b. The Parties will attempt to resolve any dispute arising out of or relating to this Agreement through good-faith negotiations. If such negotiations are unsuccessful after thirty (30) days, the Parties agree to resolve the dispute through binding arbitration under the rules of the American Arbitration Association. The arbitration will be resolved by a single arbitrator agreed upon by the Parties. If the Parties are unable to agree on an arbitrator, the arbitrator will be selected using the American Arbitration Association’s “List and Appointment” service. The arbitration will be held in Salt Lake City, Utah, unless otherwise agreed by the Parties. Each Party will bear its own fees and expenses related to the arbitration.
c. The Parties must institute any permitted legal suit, action, or proceeding arising out of or related to the Agreement exclusively in the federal or state courts in and for Salt Lake County, Utah, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein is effective service of process for any suit, action, or other proceeding brought in any such court. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
11.5. Notices. Any notices to Provider or to Customer must be sent to Provider’s or Customer’s, as applicable, address, via personal delivery, registered or certified mail, overnight courier, or email (with confirmation of transmission) and are deemed given (a) if delivered personally, upon receipt; (b) if delivered by registered or certified mail, three business days following deposit with the USPS; (c) if delivered by overnight courier, on the business day following deposit with such courier; and (d) if delivered by email, when sent, if sent during the recipient’s normal business hours, and otherwise on the next business day. Each Party’s address for service of notices is included on the Order Form and/or SOW or as updated in accordance with this Section.
11.6. Modifications; Waiver. This Agreement may be updated or modified from time to time by Provider in its sole discretion. Provider has no obligation to provide Customer with prior notice of any such update or modification; Customer is advised to regularly review this Agreement. Continued use of the Services following the effective date of any such update or modification shall constitute Customer’s acceptance of and agreement to such update or modification. Provider shall not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Provider specifically agrees to such provision in writing and such writing is signed by an authorized agent of Provider..
11.7. Assignment and Change of Control. Customer may not assign, delegate, or otherwise transfer any of Customer’s rights or obligations in the Agreement without Provider’s prior written consent, and any such attempt is void. No permitted assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under the Agreement. Provider may terminate the Agreement in the event of a merger, reorganization or other transaction resulting in a change of control of the Customer, effective immediately upon notice of such termination to the Customer or to the surviving entity to which the Customer undergoes such change of control. The Agreement is binding upon and inures to the benefit of any respective successors and permitted assigns of the Parties hereto.
11.8. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
11.9. Relationship of the Parties. The relationship between Provider and Customer is one of independent contractors and nothing contained in the Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
11.10. Survival. Any provision that should by its nature survive the termination or expiration of the Agreement, does survive, including without limitation Sections 4, 5, 6, 8, 9, 10.3, and 11.
11.11. Equitable Relief. Each Party acknowledges that a breach or threatened breach by such Party of any of its obligations could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity, or otherwise.
BEFORE ACCEPTING THIS AGREEMENT BY SUBMITTING AN ORDER FORM TO PROVIDER, CUSTOMER IS ADVISED TO CAREFULLY READ THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE DOCUMENTATION. BY CLICKING TO ACCEPT OR EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER (1) AGREES TO BE BOUND BY AND BECOMES A PARTY TO THIS AGREEMENT AND (2) CONFIRMS THAT THE INDIVIDUAL ENTERING THIS AGREEMENT HAS AUTHORITY TO SO BIND CUSTOMER WITHOUT FURTHER ACTION BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT CLICK THE “AGREE” BUTTON OR EXECUTE AN ORDER FORM, AND THE SERVICES WILL NOT BE USABLE.
