Terms of Service

by | Sep 20, 2017 | Legal

Subscriber terms of service GOVERNING YOUR USE OF OUR SERVICES

Last Updated: September 19, 2017

PLEASE READ THESE SUBSCRIBER TERMS OF SERVICE CAREFULLY BEFORE USING SERVICE PROVIDER’S SERVICES.  Same Role Same Pay, Inc., dba SameWorks (“Service Provider” “we,” “us”) provides the Services subject to your compliance with this Subscriber Terms of Service Agreement (“Agreement”).  This Agreement governs the relationship between Service Provider and you, the employing legal entity (“Subscriber” “You”) and its Authorized Users with respect to your use of the Services.  It is important that you read carefully and understand the terms and conditions of this Agreement.  BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT.  If you do not agree to this Agreement, you must not use the Services.

We may at any time, at our sole discretion, revise or otherwise update this Agreement by posting an amended and restated Agreement on our website <www.sameworks.com>; any changes that we make to this Agreement will be effective immediately upon posting.  Please check this page periodically for changes to the Agreement; you will be able to determine if this Agreement has been changed since your previous visit by viewing the “Last Updated” information that appears at the top of this Agreement.  Subscriber’s use of the Services following the posting of an updated Agreement constitutes acceptance of the updated Agreement.

Further, Service Provider reserves the right, at any time, to modify or discontinue, temporarily or permanently, the Services (or any part thereof) without notice.  You agree that Service Provider shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.

If you have any questions about this Agreement, please contact us at support@sameworks.com.

  1. Definitions

“Actual Uptime” shall mean the total minutes in the reporting month that the Services were actually available to Authorized Users for normal use.

“Authorized User” is a term defined in Section 2.B of this Agreement.

“Claim” or “Claims” is a term defined in Section 13.A of this Agreement.

“Confidential Information” is a term defined in Section 10 of this  Agreement.

“Dispute” means a dispute or argument between Service Provider and Subscriber arising from this Agreement.

“Enhancement Support Services” means any addition, update, improvement or change to the Services which add substantial new functionality or expand the scope of the Services provided.

“Error” means any failure of the Services to conform in all material respects to its functional specification as published in the Documentation.  However, any nonconformity resulting from Subscriber’s misuse, improper use, alteration, or damage of the Services, or Subscriber’s combining or merging of the Services with any hardware or software or other services not supplied or identified as compatible by Service Provider shall not be considered an Error

“Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations and applications therefore in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world

“Documentation” means all user manuals, user documentation, and other related materials pertaining to the Services that Service Provider provides to the Subscriber under this Agreement.

“Indemnitee” is a term defined in Section 13.A of this Agreement.

“Maintenance Window” shall mean the total minutes in the reporting month represented by the following day(s) and time(s) during which Service Provider shall maintain the Services: Monday Through Friday from 8:00 A.M. to 5:00 P.M. CST.

“Party” means Service Provider or Subscriber individually.

“Parties” means Service Provider and Subscriber collectively.

“Personally Identifiable Information” or “PII” is a term defined in Section 9.A of this Agreement.

“Pre-existing Materials” is a term defined in Section 12.A of this Agreement.

“Response Time” shall mean the interval of time from when an Authorized User requests, via the Services, a Transaction to when visual confirmation of Transaction completion is received by the Authorized User.  For example, Response Time includes the period of time representing the point at which an Authorized User enters and submits data to the Services and the Services display a message to the Authorized User that the data has been saved

“Scheduled Downtime” shall mean the total minutes in the reporting month represented by the Maintenance Window.

“Scheduled Uptime” shall mean the total minutes in the reporting month less the total minutes represented by the Scheduled Downtime.

“Services” means a third-party hosted “software as a service” offering by Service Provider to Subscriber and more fully described in Section 2.A.i of this Agreement.

“Service Order” means the Service Order as amended and restated from time by Service Provider pursuant to this Agreement.

“Subscriber Data” is a term defined in Section 9.A of this Agreement.

“Technical Support” means telephone and email support twenty-four (24) hours per day, seven (7) days per week, three-hundred-sixty-five (365) days per year.  Technical Support will include any research and resolution activity performed by Service Provider.

“Total Problems” shall mean the total of problems occurring in the reporting month.

“Total Responses” shall mean the total responses from Authorized Users to the annual Subscriber satisfaction survey.

“Total Transactions” shall mean the total of Transactions occurring in the reporting month.

“Transaction” or “Transactions” shall mean Services web page loads, Services web page displays, and Authorized User Services requests.

2. Service Order Services.

A. Service Orders and Provision of Services.

i. General. This Agreement sets forth the terms and conditions under which We agree to license to Subscriber on a personal, non-exclusive, non-transferable basis certain hosted software for internal use only and provide all other services necessary for productive use of such software including, user identification and password change management, data import / export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Services“) as provided in the Service Order.  You are not permitted to resell the Services.   Subscriber agrees to use commercially reasonable efforts to ensure that the Authorized Users of the Services hereunder comply with the terms and conditions set out in this Agreement.  The Agreement shall remain in effect, unless terminated as provided for herein.  The Service Order agreed to by the Parties is as set forth as an attachment to this Agreement.

ii. Changes to Service Orders. Changes in any Service Order shall only become effective when either the terms of the Service Order are updated by the Service Provider or the terms of this Agreement are updated by us. You can note any changes to the Service Order terms or Agreement terms by reference to the “Last Updated” reference at the top page of the Agreement and Service Order.

iii. Incorporation of this Agreement by Reference; Precedence. Each Service Order shall be deemed to incorporate the terms and conditions of this Agreement by reference. In the event of any express conflict or inconsistency between the provisions of a Service Order and the provisions of this Agreement, the provisions of this Agreement will govern and control with respect to the interpretation of that Service Order; provided, however, that the provisions of the Service Order will be construed to give effect to the applicable provisions of this Agreement to the fullest extent possible. Any changes or modifications made to this Agreement will apply to all Service Orders, and any changes or modifications made to any Service Order will apply only to that Service Order, unless the Parties’ authorized representatives otherwise expressly agree in writing.

B. Authorized Users; Authorized Uses. Unless otherwise limited in the Service Order, we grant Subscriber a renewable, irrevocable (unless as provided for herein), nonexclusive, royalty-free, and worldwide right for any Subscriber designated employee, contractor, or agent, or any other individual or entity authorized by Subscriber, (each, an “Authorized User”) to access and use the Services.  Other than those limitations expressly described in the Service Order, Authorized Users will have no other limitations on their access or use of the Services.

C. Acknowledgement of License Grant. For the purposes of 11 U.S.C. § 365(n), the Parties acknowledge and agree that this Agreement constitutes a license grant of Intellectual Property Rights in software form to Subscriber by Service Provider.

D. Changes in Number of Authorized Users. Subscriber is entitled to increase or decrease the number of Authorized Users on an as-requested basis; provided, however, that Subscriber shall maintain at least one Authorized User.  Should You elect to change the number of Authorized Users, You shall reduce or increase Authorized Users to the corresponding level described in your account.

E. Control and Location of Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Service Provider, giving due consideration to the requests of Subscriber.  Except as otherwise specified in the Service Order, the Services (including data storage), shall be provided solely from within the continental United States and on computing and data storage devices residing therein.

F. Storage. The Services shall include the applicable allocation of base data storage described in the Service Order.

G. Documentation. The documentation for the Services (“Documentation”) should accurately and completely describe the functions and features of the Services, including all subsequent revisions thereto.  The Documentation should also be understandable by a typical end user and shall provide Authorized Users with sufficient instruction such that an Authorized User can become self-reliant with respect to access and use of the Services.  Subscriber shall have the right to make any number of additional copies of the Documentation at no additional charge.

H. Click-Through Terms and Conditions. Where an Authorized User is required to “click through” or otherwise accept or made subject to any online terms and conditions in accessing or using the Services by Service Provider, such as this Agreement, such terms and conditions are binding and effective as to the Services and the applicable Service Order.

3. Service Levels.

A. Service Levels. For the term of a Service Order, Service Provider shall provide the Services, force majeure events excepted, during the applicable Service Windows and in accordance with the applicable Service Level Standards, each as described in the Service Order.

B. Failure to Meet Service Level Standards. As further described in the applicable Service Order, in the event Service Provider does not meet a Service Level Standard, Service Provider shall: (a) owe to Subscriber during the term of this Agreement any applicable Performance Credit, as liquidated damages and not as a penalty; and, (b) use its best efforts to ensure that any unmet Service Level Standard is subsequently met.  Notwithstanding the foregoing, Service Provider will use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of Service.  Subscriber shall be required to notify Service Provider that a Performance Credit is due as a condition of payment of the same.

4. Support; Maintenance; Additional Services.

A. Technical Support. Service Provider shall provide the Technical Support described in the Service Order.  The Services Fees shall be inclusive of the fees for the Technical Support.

B. Maintenance. Service Provider shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services, as described in the Documentation, is available to Authorized Users; (b) the functionality of the Services in accordance with the representations and warranties set forth herein, including but not limited to, the Services conforming in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Service Order and the Documentation; (c) the Service Level Standards can be achieved; and, (d) the Services work with the then-current version and the prior version of Internet Explorer, Mozilla Firefox, and Google Chrome Internet browsers.  The Services Fees shall be inclusive of the fees for maintenance.

i. Required Notice of Maintenance. Unless as otherwise agreed to by Subscriber on a case-by-case basis, Service Provider shall provide no less than three (3) calendar days’ prior written notice to Subscriber of all non-emergency maintenance to be performed on the Services, such written notice including a detailed description of all maintenance to be performed.  For emergency maintenance, Service Provider shall provide as much prior notice as commercially practicable to Subscriber and shall provide a detailed description of all maintenance performed no greater than one (1) calendar day following the implementation of the emergency maintenance.

ii. Acceptance of Non-Emergency Maintenance. Periodically, we will provide non-emergency maintenance Services and these maintenance changes shall be deemed to be accepted by Subscriber if Subscriber uses the Services after the maintenance changes.

C. Enhancement Support Services. Service Provider shall not provide any Enhancement Support Services to any of its Subscribers.

5. Audit Rights of Service Provider.  We shall have the right to conduct an on-premises audit of Subscriber’s compliance with the use of the Services during Subscriber’s normal business hours by providing 72 hours advance written notice.  No more than once per quarter, we shall have the right to request from Subscriber underlying data supporting its certification of compliance with any certifications offered by Service Provider, including the reported number of Subscriber employees.  Subscriber shall be responsible for any increase in Service Fees where the actual number of employees exceeds the reported number of employees. If the audit uncovers issues involving Subscriber’s ability to maintain certification under Service Provider’s certification program, then Subscriber has 90 calendar days to comply.  If Subscriber does not resolve the issues within 90 calendar days, then Subscriber must cease and desist all usage of Service Provider’s brand.

6. Term and Termination; Renewals.

A. Term. This Agreement is legally binding as of the Effective Date and shall continue until terminated as provided for herein.  Unless this Agreement or a Service Order is terminated earlier in accordance with the terms set forth herein, the term of a Service Order shall commence on the date the Service Fees are paid and continue until this Agreement or the Service Order is terminated in accordance with this Agreement.

B. Termination for Convenience.  Either Party may terminate this Agreement and the Service Order any time upon written notice to the non-terminating Party.  Upon termination for convenience by Subscriber from Service Provider’s certification program, Subscribers will have a 90 calendar day grace period after the designated convenience termination date to display our Certification Seal after which time You must cease and desist all usage of our Certification Seal brand.  If You decide to enter into a new Agreement for Services before the expiration of the 90 calendar day grace period, then the Services reset when your account was terminated for convenience and not when You pay.

C. Termination for Cause.

i. Subscriber Bad Data Submission Based On Intentional Or Reckless Conduct. If Subscriber or its Authorized Users intentionally or recklessly submit incorrect employee pay data, as determined solely by Service Provider, to skew the results enabling Service Provider to issue a Certification Seal when one should not be issued, then Service Provider can: (a) immediately terminate this Agreement and the Service Order upon submission of notice to Subscriber pursuant to Section 14.B of this Agreement, (b) tender one or more Claims for indemnity detailing damages incurred by Subscriber’s tortious conduct which Subscriber will pay within seventy two (72) hours of submission of the Claim(s) by Service Provider, and (c) issue a press release relating to the tortious conduct by Subscriber without any of the information issued in Service Provider’s press release constituting Confidential Information.

ii. Subscriber Bad Data Submission Based On Negligent Conduct. If You negligently submit employee pay data skewing the pay results to enable us to issue a Certification Seal when one should not be issued and do not resolve this issue within 90 calendar days after the notification date by Service Provider, then this Agreement is terminated and Subscriber must cease using the Services, including use of Service Provider’s Certification Seal (term defined in Certification Brand Guidelines).

iii. Other Factors Supporting Termination for Cause. Without limiting the right of a Party to immediately terminate this Agreement or a Service Order for cause as provided for in this Agreement, if either Party materially breaches any of its duties or obligations for situations other than the basis being Section 6.C.i and 6.C.ii hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non‑breaching party’s sole satisfaction, within seven (7) calendar days after written notice of the breach, the non‑breaching party may terminate this Agreement or the Service Order for cause as of a date specified in such notice.

D. Payments upon Termination for Convenience for Cause. Upon the termination of this Agreement and Service Order, You shall pay to us all amounts due and payable hereunder, if any, and we shall not be responsible for paying any amounts due and payable hereunder, such as Performance Credits and prepaid fees, if any, to Subscriber.  Any fees paid to Service Provider are non-refundable.

E. Return of Subscriber Data and Handling of Equal Pay Certification. Upon the termination of this Agreement or a Service Order by Service Provider, all Subscriber data will be retained by Service Provider for a period Service Provider deems relevant and Service Provider’s equal pay certification of Subscriber’s payroll practices may also be terminated on a date specified by Service Provider at its sole discretion.  If Subscriber terminates this Agreement or a Service Order, then: (i) Service Provider shall, within five (5) business days of receiving a written request from Subscriber provide Subscriber, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Service Provider), with a final extract of the Subscriber Data in Excel or csv format but with no extrapolated data from our system.  Further, Service Provider shall certify to Subscriber the destruction of any Subscriber Data within the possession or control of Service Provider but such destruction shall occur only after the Subscriber Data has been returned to Subscriber; and (ii) Service Provider’s equal pay certification of Subscriber’s payroll practices will be terminated on the date this Agreement or Service Order are terminated.  This Section shall survive the termination of this Agreement.

F. Survival of Sections Upon Termination. Sections 5, 6.F, 7, 10, 13.F and 14.A shall survive termination of this Agreement and the Service Order.

7. Fees; Billing. Subscriber shall be responsible for and shall pay to Service Provider the fees as further described in the Service Order, subject to the terms and conditions contained in this Agreement and such Service Order.  Any sum due Service Provider for the Services for which payment is not otherwise specified shall be due and payable upon receipt by Subscriber of an invoice from Service Provider.

A. Billing Procedures.  Unless otherwise provided for under a Service Order, Service Provider shall bill to Subscriber the sums due pursuant to a Service Order by Service Provider’s invoice, which shall contain: (i) the fees or portion thereof that are due; (ii); sales and other taxes, if any, due and payable from the Services; and, (iii) total amount due.  Notwithstanding the foregoing, Service Provider uses Stripe billing services and an invoice will not be generated if a payment due from Subscriber is not paid.

B. Taxes. Service Provider represents and warrants that it is an independent contractor for purposes of federal, state, and local taxes.  Service Provider agrees that Subscriber is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Service Provider.  Any and all taxes, interest, or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld by Service Provider.  Notwithstanding the foregoing, Subscriber agrees it will be responsible for paying any applicable sales taxes and value added taxes on the Services.

C. Credits. Any amounts due to Subscriber, such as a Performance Credit, from Service Provider will be applied by Subscriber against any current or future fees due to Service Provider as instructed by Service Provider.

D. Non-binding Terms. Any terms and conditions included in a Subscriber purchase order or a Service Provider invoice, as the case may be, shall be deemed to be solely for the convenience of the respective party, and no such term or condition shall be binding upon the Parties.

8. Representations and Warranties and Warranty Disclaimers.

A. Mutual. Each of Subscriber and Service Provider represent and warrant that:

i. it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation;

ii. it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;

iii. the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;

iv. it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and

v. there is no outstanding litigation, arbitrated matter or other disputeto which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.

 

B. By Subscriber. Subscriber represents and warrants that it will not use the Services in a manner that:

i. is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or

ii. not violate or tamper with the security of any of the Services.

If Service Provider has reasonable grounds to believe that Subscriber is utilizing the Services for any such illegal or disruptive purpose Service Provider may suspend the Services immediately with or without notice to Subscriber.  Service Provider may terminate the Agreement as contemplated in Section 6.C if Subscriber in fact fails to adhere to the foregoing Subscriber warranties.

C. By Service Provider. Service Provider represents and warrants that:

i. it is in the business of providing the Services;

ii, the Services will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Service Order and the Documentation;

iii it is possessed of superior knowledge with respect to the Services;

iv. it is the lawful licensee or owner of the Services (excluding any Subscriber Datatherein) and has all the necessary rights in the Services to grant the use of the Services to Subscriber;

v. the Services and any other work performed by Service Provider hereunder shall not infringe upon any United States Intellectual Property Rights of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement; and

vi. it has the expertise to perform the Services in a competent, workmanlike, and professional manner and in accordance with the highest professional standards.

D. Service Provider’s Warranty Disclaimers.

i. The Service Provider warranties stipulated in Section 8.C of this Agreement do not cover defects or nonperformance due to causes and products external to the Services, and are not valid with respect to such defects or nonperformance;

ii. If any modification is made to the Services by Subscriber without Service Provider’s prior written approval, the Service Provider warranties shall immediately be terminated with respect to such modified Services. Correction for difficulties or defects traceable to Subscriber’s unauthorized modifications to the Services shall be billed to Subscriber at Service Provider’s standard time and material charges stipulated in the Service Order;

iii. Service Provider does not warrant Subscriber compliance with applicable legal requirements after the date of certification, especially due to the nature of evolving regulation in state and municipalities regulations;

iv. EXCEPT FOR ANY EXPRESS WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND SUBSCRIBER’S USE OF THE SERVICES ARE AT ITS OWN RISK. SERVICE PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, SERVICE PROVIDER DOES NOT WARRANT AND HEREBY DISCLAIMS THAT THE SERVICES WILL PROVIDE PROTECTION FROM (I) VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, CANCELBOTS, OR OTHER HARMFUL OR DELETERIOUS PROGRAMMING ROUTINES; (II) DATA LOSS; (III) UNAUTHORIZED, UNKNOWN, OR UNFORESEEABLE SECURITY BREACHES, ACCESSES, OR ATTACKS INTO OR AFFECTING SUBSCRIBER’S EQUIPMENT OR SYSTEMS; AND (IV) ANY FORM OF REAL-TIME DETECTION OF ANY OR ALL OF THE FOREGOING.  NO AGENT, CONTRACTOR OR EMPLOYEE OF SERVICE PROVIDER, EXCEPT SERVICE PROVIDER’S DULY AUTHORIZED REPRESENTATIVE, IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF SERVICE PROVIDER AS SET FORTH HEREIN; and

v. SERVICE PROVIDER ALSO DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES THAT THE EQUAL PAY CERTIFICATION OF SUBSCRIBER’S EMPLOYEE COMPENSATION PRACTICES BY SERVICE PROVIDER WILL WITHSTAND LEGAL SCRUTINY BY U.S. COURTS AND STATE AND FEDERAL REGULATORS AND BE COMPLIANT WITH U.S. STATE AND/OR FEDERAL EQUAL PAY LAWS, INCLUDING BUT NOT LIMITED TO THE U.S. STATE EQUAL PAY LAWS REFERENCED AT THE URL, http://www.ncsl.org/research/labor-and-employment/equal-pay-laws.aspx, THE FEDERAL EQUAL PAY ACT OF 1963 AND FAIR LABOR STANDARDS ACT, AS AMENDED; INSTEAD, THE EQUAL PAY CERTIFICATION BY SERVICE PROVIDER OF SUBSCRIBER’S EMPLOYEE COMPENSATION PRACTICES IS MEANT TO HELP ENHANCE SUBSCRIBER’S BRAND IMAGE WITH SUBSCRIBER’S CUSTOMERS BY HELPING SUBSCRIBER TAKE PROACTIVE STEPS TO ADDRESS EQUAL PAY ISSUES.  IF SUBSCRIBER SEEKS LEGAL COMPLIANCE AND CERTIFICATION WITH U.S. STATE AND FEDERAL EQUAL PAY LAWS AND OTHER EMPLOYEE COMPENSATION LAWS, THEN SUBSCRIBER SHOULD CONSULT WITH ONE OR MORE ATTORNEYS LICENSED IN THE UNITED STATES.

9. Subscriber Data.

A. Ownership. Subscriber’s data (“Subscriber Data”) which shall also be known and treated by Service Provider as Confidential Information) shall include: (a) Subscriber’s data collected, used, processed, stored, or generated as the result of the use of the Services; and, (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein.  Subject to Section 9.B of this Agreement, Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same is reserved by Subscriber.

B. Service Provider Use of Subscriber Data. Service Provider is provided a limited license to Subscriber Data for the sole and exclusive purpose of: (i) providing the Services, including a license to collect, process, store, generate, and display Subscriber Data only to the extent necessary in the providing of the Services; and (ii) aggregating, collecting and analyzing Subscriber Data for research and analytical purposes but at a level of analysis in which any personally identifiable information for any Subscriber employees or Subscriber is removed.   Service Provider shall: (a) keep and maintain Subscriber Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Subscriber Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement, the applicable Service Order, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Subscriber Data for Service Provider’s own purposes or for the benefit of anyone other than Subscriber without Subscriber’s prior written consent.  This Section shall survive the termination of this Agreement.

C. Extraction of Subscriber Data. Service Provider shall, within five (5) business days of Subscriber’s request, provide Subscriber, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Service Provider), an extract of the Subscriber Data in the format specified by Subscriber.

D. Backup and Recovery of Subscriber Data. As a part of the Services, Service Provider is responsible for maintaining a backup of Subscriber Data and for an orderly and timely recovery of such data in the event that the Services may be interrupted.  Unless otherwise described in a Service Order, Service Provider shall maintain a contemporaneous backup of Subscriber Data that can be recovered within two (2) hours during Service Provider’s Maintenance Window.  Additionally, Service Provider shall store a backup of Subscriber Data in an off-site “hardened” facility no less than daily, maintaining the security of Subscriber Data, the security requirements of which are further described herein.  Any backups of Subscriber Data shall not be considered in calculating storage used by Subscriber.

E. Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Subscriber Data or the physical, technical, administrative, or organizational safeguards put in place by Service Provider that relate to the protection of the security, confidentiality, or integrity of Subscriber Data, Service Provider shall, as applicable: (a) notify Subscriber as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with Subscriber in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by Subscriber; (c) in the case of PII, at Service Provider’s sole election, (i) notify the affected individuals who comprise the PII as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or, (ii) reimburse Subscriber for any costs in notifying the affected individuals; (d) in the case of PII, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the PII for the period required to comply with applicable law, or, in the absence of any legally required monitoring services, for no less than twelve (12) months following the date of notification to such individuals; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) without limiting Subscriber’s obligations of indemnification as further described in this Agreement and subject to Section 13.E of this Agreement, indemnify, defend, and hold harmless Subscriber for any and all Claims (as defined herein), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Subscriber in connection with the occurrence; (g) be responsible for recreating lost Subscriber Data in the manner and on the schedule set by Subscriber without charge to Subscriber; and, (h) provide to Subscriber a detailed plan within ten (10) calendar days of the occurrence describing the measures Service Provider will undertake to prevent a future occurrence.  Notification to affected individuals, as described above, shall comply with applicable law, be written in plain language, and contain, at a minimum: name and contact information of Service Provider’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Service Provider has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Service Provider.

10. Non-Disclosure of Confidential Information. The Parties acknowledge that each Party may be exposed to or acquire communication or data of the other Party that is confidential, privileged communication not intended to be disclosed to third parties.

A. Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that:  (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; and (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party within thirty (30) calendar days of the date of disclosure and marked “confidential” or with words of similar meaning.  The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party); (e) is disclosed pursuant to any judicial or governmental requirement or order, so long as the receiving party takes all reasonable steps to provide prompt and sufficient advance written notice to the disclosing party so that the disclosing party may contest such requirement or order; or (f) is disclosed by the receiving party with the disclosing party’s prior written approval (e.g., Section 6.C.i.c of this Agreement).  For purposes of this Agreement, in all cases and for all matters, Subscriber Data shall be deemed to be Confidential Information.

B. Obligation of Confidentiality. The Parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement.  The Parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.

C. Limit of Subscriber Confidential Information to Authorized User(s). We shall limit access to your Confidential Information to those Authorized Users and their emails designed by You in the sign up process , as amended and restated from time to time in your user account, who are directly concerned with furthering the specified purpose(s) of disclosure, and we shall not disclose, or authorize anyone else to disclose, such Confidential Information (in whole or in part, including copies and derivations) to anyone other than Authorized Users without the prior written approval of You.  You certify that the Authorized User(s) designated to receive and access your Confidential Information will have agreed, either as a condition of employment or engagement or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to us under this Agreement.

D. Cooperation to Prevent Disclosure of Confidential Information. Each Party shall use reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information.  Without limiting the foregoing, each Party shall advise the other Party immediately in the event either Party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each Party will cooperate with the other Party in seeking injunctive or other equitable relief against any such person.

E. Remedies for Breach of Obligation of Confidentiality.  Each Party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages.  Accordingly, a Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available corresponding to the breach or threatened breach.

11. Data Privacy, Information Security, Acceptable Use And Other Service Provider Policies.

A. Undertaking by Service Provider. Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (c) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (d) ensure the proper disposal of Subscriber Data; and, (e) ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing.  In no case shall the safeguards of Service Provider’s data privacy and information security program be less stringent than the safeguards used by Subscriber.

B. Review by Service Provider.  No less than annually, Service Provider shall conduct a comprehensive review of its data privacy and information security program and provide such review findings to Subscriber.

C. Right of Review by Subscriber. Subscriber shall have the right to review Service Provider’s data privacy and information security program prior to the commencement of Services and from time to time during the term of this Agreement.

D. Review Findings.  Service Provider shall implement any reasonably required safeguards as identified by a review of Service Provider’s data privacy and information security

E. Service Provider Policies and Guidelines. The following Service Provider policies govern the conduct of the Parties and are hereby incorporated in their entirety into the terms of this Agreement by reference: (i) Acceptable Use Policy; (ii) Privacy Policy; (iii) Data Request Policy; (iv) Securities Practices Policy; and (v) Service Provider Certification Brand Guidelines.

12. Proprietary Rights.

A. Pre-existing Materials. Subscriber acknowledges that, in the course of performing the Services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Service Provider.

B. No License. Except as expressly set forth herein, no license is granted by either Party to the other with respect to the Confidential Information or Pre-existing Materials.  Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.

C. Proprietary Rights Survival. The provisions of this Section shall survive the termination of this Agreement.

13. Indemnification and Limitation of Liability.

A. General Indemnification. Subject to Section 13.E of this Agreement, Service Provider agrees to indemnify, defend, and hold harmless Subscriber and its officers, directors, agents, and employees (each, an “Indemnitee“) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim,” and collectively, the “Claims“), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of Service Provider, its officers, directors, agents, employees, and subcontractors, during the performance of this Agreement, including, without limitation, Claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any payment required to be paid to subcontractors, if any, of Service Provider; (c) any material misrepresentation or material breach of warranty of any representation or warranty set forth in this Agreement; or, (d) any material breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions or misconduct of an Indemnitee.

B. Proprietary Rights Indemnification.  Subject to Section 13.E of this Agreement, Service Provider agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any Intellectual Property Rights.  In the event that Service Provider is enjoined from providing the Services and such injunction is not dissolved within sixty (60) calendar days, or in the event that Subscriber is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Service Provider shall, at its expense: (a) obtain for Subscriber the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Subscriber; or, (c) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Subscriber any prepaid fees.

C. Indemnification Procedures.  Immediately after receipt by Subscriber of a threat, notice, or filing of any Claim against an Indemnitee, Subscriber shall give notice thereof to Service Provider.  Failure to timely give or delay in giving such notice by Subscriber to Service Provider shall relieve Service Provider of any liability it may have to the Indemnitee.  Service Provider shall have sole control of the defense and of all negotiations for settlement of a Claim and Subscriber shall not independently defend or respond to a Claim; provided, however, that: (a) Subscriber may defend or respond to a Claim, at Service Provider’s expense, if Subscriber’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against an Indemnitee; and, (b) Subscriber shall have the right, at its own expense, to monitor Service Provider’s defense of a Claim.  At Service Provider’s request, Subscriber shall reasonably cooperate with Service Provider in defending against or settling a Claim; provided, however, that Service Provider shall reimburse Subscriber for all reasonable out-of-pocket costs incurred by Subscriber (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.

D. Third-Party Beneficiaries. For the purposes of this Section and Service Provider’s obligations hereunder, non-party Indemnitees are third-party beneficiaries of this Agreement in accordance with its terms.  Any action or consent taken by Subscriber on its own behalf is binding upon the non-party Indemnitees for the purposes of this Section.  Other than as provided for in this Section, this Agreement is for the sole benefit of the signatories hereto and their permitted successors and assigns.  Nothing, express or implied, in this Agreement is intended to create or be construed to create any rights of enforcement in any persons or entities who are neither signatories to this Agreement nor non-party Indemnitees.

E. LIABILITY LIMITATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY WITHIN THIS AGREEMENT: (I) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROPERTY, LOSS OF PROFITS OR LOSS OF PRODUCTION DAMAGES, RESULTING FROM THE PROVISION OF SERVICES PROVIDED BY SERVICE PROVIDER OR SERVICE PROVIDER’S SUPPORTING PERSONNEL UNDER THIS AGREEMENT, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHERWISE; AND (II) SERVICE PROVIDER’S TOTAL LIABILITY FOR THE CLAIM OF LOSS OR DAMAGE CONCERNING THE SERVICES SPECIFIED IN THE SERVICE ORDER SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO SERVICE PROVIDER BY SUBSCRIBER DURING THE PREVIOUS THREE MONTHS FROM THE DATE A CLAIM AROSE.

F. PRICES DEPENDENT ON LIABILITY LIMITATION. THE PARTIES AGREE THAT SERVICE PROVIDER HAS PROVIDED THE PRICES TO SUBSCRIBER AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION, WHICH REPRESENTS A BARGAINED-FOR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

14. General Provisions.

A. Governing Law and Dispute Resolution. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to any applicable conflicts of law provisions thereof that may require the application of the laws of another jurisdiction.  The Parties agree that any Dispute will be resolved as stipulated below.

i. The Parties hereby irrevocably submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in respect of the interpretation and enforcement of the provisions of this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said arbitration forum or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced by the AAA, and the Parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in Austin, TX. Nothing herein shall pre-empt a party’s right to seek equitable remedies, including restraining orders or injunctions, from a court of law having jurisdiction over the parties and subject matter;

ii. An arbitration panel consisting of three (3) members will decide any disputes that arise. Each party will be entitled to select one (1) arbitrator.  These two (2) arbitrators will then decide upon a third arbitrator.  If a third arbitrator cannot be agreed upon within sixty (60) calendar days, then the AAA procedural rules will be utilized to select a third arbitrator;

iii. The parties hereby consent to and grant the AAA jurisdiction over the person of such parties and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in this alternative Dispute resolution provision or in such other manner as may be permitted by law and the rules of the AAA shall be valid and sufficient service thereof;

iv. The AAA arbitration proceedings will be conducted using the English language. Each party will be responsible for their own attorney fees.  Any decision or monetary award granted by the arbitration panel to a party will constitute Confidential Information.  Except for causes of action brought by Service Provider pursuant to Section 6.C.i of this Agreement, the arbitration panel will not have authority to award punitive damages;

v. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. Service Provider and Subscriber agree that any cause of action arising out of or related to the Services or this Agreement must commence within four (4) years after the cause of action arose; otherwise, such cause of action is permanently barred; 

vi. Service Provider and Subscriber each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial;

vii. Should you have a Dispute with one or more Subscribers over any content placed on Service Provider’s website by another Subscriber, or an outside party, you release Service Provider and Service Provider’s employees and other representative agents and other Service Provider suppliers from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such Disputes; and

viii. Service Provider, for the benefit of the Subscribers, may try to help Subscribers resolve disputes regarding content placed on Service Providers’ website. Service Provider does so in Service Provider’s sole discretion, and Service Provider has no obligation to resolve disputes between Subscribers or between outside parties.  To the extent that Service Provider attempts to resolve such a dispute, Service Provider will do so in good faith based solely on Service Provider’s discretion.  Service Provider will not make judgments regarding legal issues or claims between Subscribers.

B. Notice. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, (b) on the first business day following the date of dispatch if delivered by a nationally recognized delivery courier, such as UPS or Federal Express, (c) on the fifth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid or (d) if sent by facsimile or email transmission, when transmitted and receipt is confirmed.  Termination of this Agreement shall not be effective until the terminating Party delivers notice of such termination to the other Party hereto in accordance with this Section 14.B.  All notices hereunder shall be delivered to the Authorized Users.

C. Validity. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.  If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.

D. Laches. The failure of either Party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed to be a waiver of such provisions or of its right thereafter to enforce each and every provision.

E. Assignment. Subscriber shall not assign or transfer any of its rights or obligations hereunder without the prior written consent of Service Provider’s authorized representative.  Any attempted assignment or transfer without such written consent shall be void.  This Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the respective Parties.

F. Equitable Actions. The Parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and in accordance with its terms, the Parties are entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

G. Other Remedies. Any and all rights and remedies of a Party upon the other Party’s breach of or default under this Agreement (whether expressly conferred by this Agreement or otherwise) shall be deemed cumulative with and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on such party, and the exercise of any one remedy shall not preclude the exercise of any other remedy.

H. Section Headings. When a reference is made in this Agreement to sections such reference shall be to a section of this Agreement, unless otherwise indicated.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  No provision of this Agreement shall be deemed to be construed to require either Party or their Affiliates to take any action that would violate applicable law.  References to dollar amounts herein shall not be deemed an admission that such amounts are material.

I. Translation. In the event this Agreement is translated into any language other than the English language, the meanings contained in the English language version shall control and be used in any interpretation or Dispute related to this Agreement.

J. Drafting Party. Notwithstanding the fact that this Agreement has been drafted or prepared by one of the Parties, each of the Parties confirms that each of them and their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the Parties, and the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any person.

K. Amendment and Changes. This Agreement and any provision thereof may not be changed, amended, supplemented, discharged, terminated, or otherwise altered except by a statement in writing signed by an authorized representative of the Party against whom enforcement of this Agreement is sought.

L. Waiver. The waiver by either Party of any right under this Agreement or the failure to perform or of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other right under this Agreement or of any other breach or failure whether of a similar nature or otherwise.

M. Relationship between Subscriber and Service Provider. We represent and warrant that we are an independent contractor with no authority to contract for You or in any way to bind or to commit You to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of You.  Under no circumstances shall we, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of You.  In recognition of our status as an independent contractor, You shall carry no workers’ compensation insurance or any health or accident insurance to cover us or our agents or staff, if any.  You shall not pay any contributions to social security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship.  Neither us nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan offer by You.

N. Force Majeure. Neither Party to this Agreement shall be liable for its failure to perform hereunder due to circumstances beyond its reasonable control, including but not limited to strike, riot, war, terrorism, fire, act of God, accident, development center breakdown not caused by the fault or neglect of such Party, nor compliance with any law, regulation or order, whether valid or invalid, of the United States of America or any other governmental body.

O. Export Compliance. Neither Party shall directly or indirectly export any information of the other Party, including the other Party’s Confidential Information (including whole or partial copies or derivations), except in compliance with all applicable laws, rules and regulations relating to the export or re-export of technical data and information from the United States and other applicable countries.  In addition, each Party agrees to indemnify, defend and hold the other Party harmless from any loss, expense, penalty or claim against the other Party due to a Party’s violation or alleged violation of any export laws rules or regulations with respect to the Services sold to Subscriber hereunder.

P. Entire Agreement. This Agreement, Service Order, Acceptable Use Policy, Privacy Policy, Data Request Policy, Securities Practices Policy and Service Provider Certification Brand Guidelines constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all other agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof.  Each Party agrees that neither Party hereto has made any other representations and warranties, and each Party hereby disclaims any other representations and warranties made by itself or any of its officers, directors, employees, agents, financial and legal advisors or other representatives with respect to the execution and delivery of this Agreement or the transactions contemplated herein, notwithstanding the delivery or disclosure to any other Party or any Party’s representatives of any documentation or other information with respect to any one or more of the foregoing.  In the event of any conflicting provisions between this Agreement and the attached exhibits, the language of this Agreement shall supersede the terms and conditions of the attached exhibits to this Agreement.

SERVICE ORDER

Last Updated: September 19, 2017

This Service Order is incorporated in and governed by the Subscriber Terms of Service Agreement (“Agreement”).

Services Description.

We offer a software as a service platform for companies to audit their payroll data.  We deliver derived diversity data collected from our customer base and other outside data sources, and audit our customer data to help each Subscriber be a step closer in achieving equal pay rates for its employees for any given role.  Upon certification, which is entirely at our sole discretion, and payment thereof, we help enable our client to display a certification mark (Certification Seal) for the duration of its compliance to our standard.  The audit is performed annually and the Certification Seal provided to the client upon successful completion of this annual audit is renewable for each successive annual period provided the client passes our equal pay audits for each successive annual period.

We are currently offering You two Services: (i) a portal in which you pay U.S. $100/month giving you access to analytical data and tools to help You become compliant with our own equal pay standards; and (ii) certification for your equal pay practices once You have passed our criteria specified below. You can sign up for one or both Services.  There are separate Service fees for these two Services.

Please note that We do not guarantee: (i) You will receive any news media or press coverage from the provision of the Services; and (ii) our Services will enable You to be legally compliant with U.S. State and federal equal pay laws, including but not limited to the U.S. State equal pay laws referenced at the URL,  http://www.ncsl.org/research/labor-and-employment/equal-pay-laws.aspx, the federal Equal Pay Act of 1963 and Fair Labor Standards Act, as amended; instead, our Services are meant to help facilitate your brand image with your customers by showing you are taking proactive steps to comply with equal pay state and federal laws.  If you seek legal compliance and certification with U.S. state and federal equal pay laws and other employee compensation laws, then You should consult with one or more attorneys licensed in a U.S. state.

If Subscriber is subject to an audit by Service Provider, then Subscriber acknowledges those audits may mean additional work for Subscriber’s team to fulfill the necessary data requests or other inquiries from Service Provider personnel.

Subscriber agrees that Service Provider may follow up on anonymous Subscriber employee complaints regarding equal compensation issues involving Subscriber during the term of the Agreement.

Service Provider reserves the right to change the criteria for being eligible to receive a certification seal at any time, meaning that if You are certified this year, You may have to do different things to be certified next year.  You will be able to keep your certification for 365 days, however, regardless of new rules.

Authorized Users and Services Fees.

The number and identity of the Authorized Users representing each Subscriber and the related Service fees are dependent on the selection and input from the Subscriber upon signup for the Services and periodically during the term of the Agreement and this Service Order.

Storage Threshold(s).

Maximum 1GB.  If Subscriber needs more storage, then Subscriber should contact us.

Technical Support Description.  Service Provider will provide to Subscriber Technical Support.

A. Request for Technical Support. Authorized Users will make Technical Support requests by calling or emailing Service Provider’s Technical Support staff or by submitting a request via Service Provider’s Subscriber service web portal.  Service Provider’s Technical Support staff shall assign to the request the Problem Severity Level (as defined herein) indicated by the requestor.

B. Problem Severity Levels 1 and 2 Response and Resolution.  For Technical Support requests not made by telephone, within the Request Response Time of such a request, Service Provider shall confirm to the requestor receipt of the request by Service Provider.  If a Problem Severity Level 1 or 2 request cannot be corrected to the reasonable satisfaction of Service Provider’s Technical Support personnel within the Request Resolution Time after the requestor makes the initial request for Technical Support, Service Provider will: (a) immediately escalate the request to Service Provider’s management; (b) take and continue to take the actions which will most expeditiously resolve the request; (c) provide frequent reports to the requestor of the steps taken and to be taken to resolve the request, the progress to correct, and the estimated time of correction until the request is resolved; and, (d) every 24 hours, provide increasing levels of technical expertise and Service Provider management involvement in finding a solution to the request until it has been resolved.

C. Problem Severity Level 3 Response and Resolution.  For Technical Support requests not made by telephone, within the Request Response Time of such a request, Service Provider shall confirm to the requestor receipt of the request by Service Provider.  If a Problem Severity Level 3 request cannot be corrected to the reasonable satisfaction of Service Provider’s Technical Support personnel within the Request Resolution Time after the requestor makes the initial request for Technical Support, at the sole election of requestor: (a) Service Provider will work continuously to resolve the request; or, (b) Service Provider will provide a schedule within which to resolve the request.

Technical Support Problem Severity Levels

A. Problem Severity Level 1.

1.Description. This Problem Severity Level is associated with: (a) Services, as a whole, are non-functional or are not accessible; (b) unauthorized exposure of all of part of Subscriber Data; or, (c) loss or corruption of all or part of Subscriber Data.

2. Request Response Time. 3 business hours

3. Request Resolution Time. 48 business hours

B. Problem Severity Level 2.

1.Description. This Problem Severity Level is associated with significant and / or ongoing interruption of an Authorized User’s use of a critical function (as determined by Service Provider) of the Services and for which no acceptable (as determined by the Authorized User) work-around is available.

2. Request Response Time. 8 business hours

3. Request Resolution Time. 72 business hours

C. Problem Severity Level 3.

1.Description. This Problem Severity Level is associated with: (a) minor and / or limited interruption of an Authorized User’s use of a non-critical function (as determined by Service Provider’s Technical Support personnel) of the Services; or (b) general questions pertaining to the Services raised by the Authorized Users; or, (c) problems which are not included in Problem Severity Levels 1 or 2.

2. Request Response Time. 2 weeks from date of request.

3. Request Resolution Time. 2 weeks or a longer duration dependent on time needed to address the issue.

Service Levels.

A. Availability Service Level.

  1. Service Level Standard.  Services will be available to Authorized Users for normal use 100% of the Scheduled Uptime.
  2. Calculation. (Actual Uptime / Scheduled Uptime) * 100 = “Percentage Uptime” (as calculated by rounding to the second decimal point).
  3. Performance Credit.
    1. Where Percentage Uptimeis equal to or greater than 95.00%, no Performance Credit will be due to Subscriber.
    2. Where Percentage Uptimeis less than 95.00%, Subscriber shall be due a Performance Credit in the amount of 10% of the Services Fees (as calculated on a monthly basis for the reporting month) for each full 1% reduction in Percentage Uptime.
  4. Example Calculation.
    1. Assuming reportingmonth is November 2017 (43,200 minutes).
    2. Assuming a Maintenance Window of Sundays from Midnight to 4:00 a.m. Central Standard Time (equals Scheduled Downtime of 960 minutes).
    3. Scheduled Uptime equals 42,240 minutes (total minutes of 43,200 in November 2017 less 960 minutes of Scheduled Downtime).
    4. Assuming Actual Uptime of 40,000 minutes.  A Percentage Uptime is calculated as follows: (39,300 / 42,240) *100 = 93.04%.
    5. The threshold of 95.00% less the Percentage Uptime of 93.04% = 1.96%.
    6. The difference is greater than a 1% reduction but is less than a 2% reduction; therefore, Subscriber is due 10% of the Services Feesas a Performance Credit.

B. Services Response Time Service Level.

  1. Service Level Standard.  Transactions will have a Response Time of 10 seconds or less 100% of the time each reporting month during the periods for which the Services are available.
  2. Calculation. ((Total Transactions – Total Transactions failing Standard) / Total Transactions) * 100 = Percentage Response Time (as calculated by rounding to the second decimal point).
  3. Performance Credit.
    1. Where Percentage Response Timeis equal to or greater than 95.00%, no Performance Credit will be due to Subscriber.
    2. Where Percentage Response Timeis less than 95.00%, Subscriber shall be due a Performance Credit in the amount of 1% of the Services Fees (as calculated on a monthly basis for the reporting month) for each full 1% reduction in Percentage Response Time.
  4. Example Calculation.
    1. Total Transactions during the reporting month equal 42,078.
    2. Total Transactions failing the Standard of 100% equal 3,163.
    3. Percentage Response Time is calculated as follows: ((42,078 – 3,163) / 42,078) * 100 = 92.48%.
    4. The threshold of 95.00% less the Percentage Response Time of 92.48% = 2.52%.  The difference is greater than 2% but less than a 3% reduction; therefore, Subscriber is not due a 2% Performance Credit.

C. Technical Support Problem Response Service Level.

  1. Service Level Standard.  Problems shall be confirmed as received by Service Provider 100% of the time each reporting month, in accordance with the Request Response Time associated with the Problem Severity Level.
  2. Calculation. ((Total Problems – Total Problems failing Standard) / Total Problems) * 100 = Percentage Problem Response (as calculated by rounding to the second decimal point).  Note: This Calculation must be completed for each Problem Severity Level.
  3. Performance Credit.
    1. Problem Severity Level 1 – 2.
      1. Where Percentage Problem Response is greater than or equal to 95.00%, no Performance Credit will be due to Subscriber.
      2. Where the Percentage Problem Response is less than 95.00%, Subscriber shall be due a Performance Credit in the amount of 1% of the Services Fees (as calculated on a monthly basis for the reporting month) for each full 1% reduction in Percentage Problem Response.
    2. Problem Severity Level 3 – 4.
      1. Where Percentage Problem Respons eis greater than 90.00%, no Performance Credit will be due to Subscriber.
      2. Where Percentage Problem Response is equal to or less than 90.00%, Subscriber shall be due a Performance Credit in the amount of .5% of the Services Fees (as calculated on a monthly basis for the reporting month) for each full 1% reduction in Percentage Problem Response.
    3. Example Calculation (Using Problem Severity Level 1 – 2).
      1. Total Problems during the reporting month equal 68.
      2. Total Problems failing the Standard of 100% equal 8.
      3. Percentage Problem Response is calculated as follows: ((68 – 8) / 68) * 100 = 88.24%.
      4. The threshold of 95.00% less the Percentage Problem Response of 88.24% = 6.76%.  The difference is greater than a 6% reduction but is less than a 7% reduction; therefore, Subscriber is due 6% of the Services Fees as a Performance Credit.

D. Technical Support Problem Resolution Service Level.

  1. Service Level Standard.  Problems shall be resolved by Service Provider 95.00% of the time each reporting month, in accordance with the Request Resolution Time associated with the Problem Severity Level.
  2. Calculation. ((Total Problems – Total Problems failing Standard) / Total Problems) * 100 = Percentage Problem Resolution (as calculated by rounding to the second decimal point).  Note: This Calculation must be completed for each Problem Severity Level.
  3. Performance Credit.
    1. Problem Severity Level 1 – 2.
      1. Where Percentage Problem Resolution is greater than or equal to 95.00%, no Performance Credit will be due to Subscriber.
      2. Where Percentage Problem Resolution is less than 95.00%, Subscriber shall be due a Performance Credit in the amount of 5% of the Services Fees (as calculated on a monthly basis for the reporting month) for each full 1% reduction in Percentage Problem Resolution.
    2. Problem Severity Level 3 – 4.
      1. Where Percentage Problem Resolution is greater than or equal to 90.00%, no Performance Credit will be due to Subscriber.
      2. Where Percentage Problem Resolution is less than 90.00%, Subscriber shall be due a Performance Credit in the amount of 1% of the Services Fees (as calculated on a monthly basis for the reporting month) for each full 1% reduction in Percentage Problem Resolution.
    3. Example Calculation (Using Problem Severity Level 3 – 4).
      1. Total Problems during the reporting month equal 17.
      2. Total Problems failing the Standard of 100% equal 5.
      3. Percentage Problem Resolution is calculated as follows: ((17 – 5) / 17) * 100 = 70.59%.
      4. The threshold of 90.00% less the Percentage Problem Resolution of 70.59.24% = 19.41%.  The difference is greater than a 19% reduction but is less than a 20% reduction; therefore, Subscriber is due 19% of the Services Fees as a Performance Credit.

Enhancement Support Services.  For purposes of this Service Order, Service Provider will not be responsible for completing Enhancement Support Services in response to written requests by Subscriber’s Authorized Users during the term of this Agreement.  Service Provider will determine what constitutes Enhancement Support Services vs. Technical Support Services if there is an issue with the Services functionality that is not specified in this Agreement.

Payment Terms.

Subscriber will receive the standard version (version existing as of the Effective Date) of the licensed software on a royalty free basis in perpetuity up to the point where Service Provider ceases operations.  Any enhancements to the licensed software may be subject to royalty fees at the discretion of Service Provider.

Service Provider will not charge Subscriber for any Error correction Services provided to Subscriber during the term of this Agreement.

The Service fees for our two Service offerings are: (i) U.S. $100/month for a web portal giving you access to analytical data and tools to help You become compliant with state and federal laws and regulations governing equal pay requirements; and (ii) certification fees summarized in the table below for your equal pay practices once You have passed our criteria and are eligible to receive a certification seal. You can sign up for one or both Services.  There are separate Service fees for these two Services.

Please refer to https://www.sameworks.com/pricing/ for an overview of our fee structure for our Services.

If Subscriber cancels the Agreement, then Service Provider will not be obligated to issue any pro-rata refunds of any of the fees paid by Subscriber.

Subscriber shall not chargeback any credit card payments to Service Provider and any such chargeback will result in an additional payment to Service Provider of up to U.S. $500/chargeback which is a reasonable estimate of Service Provider’s additional administrative costs.  Subscriber is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, Dispute resolution costs and collection agency fees) incurred by Subscriber in enforcing collection of fees.  Both Parties should endeavor to resolve any fee Disputes within 10 business days of the other Party first being notified of a fee Dispute.