EMP TRUST MASTER TERMS AND CONDITIONS
CUSTOMER MUST READ THESE EMP TRUST SOLUTIONS, LLC (EMPTRUST) GENERAL TERMS AND CONDITIONS CAREFULLY BEFORE USING THE EMPTRUST SOFTWARE. BY EXECUTING THE AGREEMENT OF WHICH THIS AGREEMENT IS A PART (AND ASSUMING EXECUTION BY EMPTRUST) AND/OR ACCESSING THE EMPTRUST SOFTWARE VIA THE ONLINE WEB SERVICES AND PLATFORMS, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
CUSTOMER represents that the individual executing this Agreement on its behalf is duly authorized to represent the company and accept the terms and conditions of the Agreement on behalf of the company. By CUSTOMER’s execution hereof and execution hereof by an authorized representative of EMPTRUST, a binding contract is then formed between EMPTRUST and CUSTOMER, in accordance with the terms and conditions of this Agreement.
1. Term of Agreement and Renewal.
The term of this Agreement is as set forth in the Order form between Customer and EMPTRUST
2. Software Usage Rights.
Subject to the terms and conditions of this Agreement, including the payment of any applicable fees (but allowing for the applicable cure period in the event of a default), EMPTRUST grants to CUSTOMER (and any affiliate under common ownership) a limited, non-transferable, non-exclusive right to access and use its proprietary, EMPTRUST commercially available, hosted software products known as “EMP-Force,” a human resources solution and related documentation (collectively, “Software”) via a web browser for CUSTOMER’s internal business use. The Software is made available to CUSTOMER as a hosted service (“Service”). EMPTRUST hosts and retains physical control over the Software and only makes it available for access and use by CUSTOMER over the Internet through a Web-browser (e.g., MS Edge, Chrome). Nothing in this Agreement obligates EMPTRUST to deliver or make available any copies of computer programs or code from the Software to CUSTOMER, whether in object code or source code form. CUSTOMER may not rent, lease, distribute, or resell the Software, or use the Software as the basis for developing a directly competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software.
2.1 Reservation of Rights and Ownership.
The Software is licensed as a software subscription service (SaaS) hereunder, is not sold, and EMPTRUST reserves all rights not expressly granted to CUSTOMER in this Agreement. The Software is protected by copyright, trade secrets, and other intellectual property laws. EMPTRUST and its licensors own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant CUSTOMER any rights to trademarks or service marks of EMPTRUST. This Agreement does not limit any rights that EMPTRUST may have under trade secrets, copyright, patent or other laws.
2.2 License and Restrictions.
Under the License, EMPTRUST grants CUSTOMER, during the Term or other period of use provided in the activation and ordering terms for the Software, the right to access and use the Software solely for the purpose described above and otherwise in accordance with the EMPTRUST description for the Software, and, if applicable, solely by such number of authorized Users for which the applicable fee has been paid by CUSTOMER. In addition to the Software provided herein, the term “Software” includes any other related programs, tools, components of and any updates to the Software (for example, documentation, help content, bug fixes, or other information and releases) that EMPTRUST provides or makes available to CUSTOMER.
Except as expressly allowed herein or by applicable law, CUSTOMER is not licensed or permitted under this Agreement to do any of the following and must not allow any third party (acting by, through or under CUSTOMER) to do any of the following: (i) access or attempt to access any other EMPTRUST systems, programs or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, license, sublicense, modify or create derivative works based on the Software in whole or in part, resell or distribute in any way the Software; (iii) permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, or other arrangement; iv) transfer any of the rights granted to CUSTOMER under this Agreement; (v) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software, prevent access to or the use of the Software by EMPTRUST’s other licensees or customers, or impose an unreasonable or disproportionately large load on EMPTRUST’s infrastructure.
2.3 Offensive, Destructive Or Inappropriate Use.
CUSTOMER shall not exploit the Software or the Services in any unauthorized way whatsoever. The parties acknowledge and agrees that neither is permitted to use any personally identifiable information stored in EMPTRUST’s infrastructure through which the Service is provided for personal use and each agree not to copy, transfer or distribute any personally identifiable information other than in compliance with all laws and as permitted in connection with the use of the Software. CUSTOMER further agrees not to use the Software in any manner to knowingly harass, abuse, stalk, threaten or defame any other party, and that EMPTRUST is not in any way responsible for any such use by CUSTOMER, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that CUSTOMER may receive as a result of using any of the Software.
3. Termination and Expiration.
3.1 Material Breach.
Either party may terminate this Agreement upon ninety (90) days’ prior written notice in the event of a material breach that is not cured (or discontinued with appropriate changes made to ensure that it is not repeated) within sixty (60) days after notice. Upon the expiration or termination of the Agreement: (i) CUSTOMER may retrieve a copy of its data if hosted by EMPTRUST; (ii) CUSTOMER must cease all use of the Software with the exception of data retrieval as described above; (iii) EMPTRUST may disable all other portions of the Software for which CUSTOMER’s usage rights have been terminated; and (iv) in the case of termination by CUSTOMER for EMPTRUST’s failure to timely cure its material breach, EMPTRUST shall promptly refund to CUSTOMER that portion of the License Fee and Support Fee which has been prepaid but unearned, prorated to the effective date of termination.
3.2 Retrieval of Data.
EMPTRUST may delete any CUSTOMER data in EMPTRUST’s possession (including employee data) that is not retrieved by CUSTOMER within thirty (30) days of the expiration or termination of this Agreement.
4. Use of the Software by Third Parties on CUSTOMER’s Behalf.
4.1 Third-Party Contractors.
CUSTOMER may only make the Software available for use (within the usage limits of this Agreement), by CUSTOMER’S third-party contractors to assist in CUSTOMER’S staffing efforts (each a “Third-Party Contractor”). CUSTOMER is responsible for all usage and compliance with this Agreement by Third-Party Contractors. Any password(s) provided to a Third-Party Contractor to access and use the Software must be disabled by CUSTOMER immediately upon conclusion their work for CUSTOMER.
4.2 Competitors.
CUSTOMER may not grant access or use of the Software to employees or contractors of companies offering similar software and services.
5. Ethical Hacks and Robots.
Unauthorized use of a Robot (as defined below) with the Software for any purpose is a material breach of this Agreement. CUSTOMER may not (without EMPTRUST’s prior written consent), and may not allow any employee of CUSTOMER or any Third-Party Contractor to:
(i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan (“Ethical Hack”) on EMP Trust production sites if hosted by EMP Trust, (ii) attempt to access the data of another EMPTRUST customer, or (iii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as “Robots”) in conjunction with the EMPTRUST Software (whether a production or non-production instance of the Software).
6. Support Policies.
EMPTRUST will provide support in accordance with EMPTRUST’s current support policy and as otherwise provided in our online support policy or included by reference hereof. EMPTRUST hosts and maintains the Software and all CUSTOMER data uploaded to or entered into the Software in accordance with such policy and reserves the right to make changes it and/or to its hosting and technical infrastructure, provided such changes do not materially degrade the overall level of service provided to CUSTOMER or EMPTRUST customers generally. Notwithstanding anything to the contrary of this Agreement, EMP Trust shall at all times ensure that CUSTOMER data is securely stored and transmitted in accordance with the highest applicable industry standards 9not less than being encrypted) for the type of data being maintained.
7. Updates and Upgrades.
EMPTRUST will make updates and upgrades to the Software available to CUSTOMER as such updates and upgrades are released. Updates and upgrades in Software versions are made available as per terms in Order Form.
8. New Products.
New products will not be provided to CUSTOMER as part of the support services provided hereunder. EMPTRUST may charge additional fees for new products, and CUSTOMER may choose whether or not to purchase new products at CUSTOMER’s sole discretion. If EMPTRUST removes any features or functionality from the Software and subsequently offers those features or functionality in a new product (whether directly or indirectly or through a third party), then the Software provided pursuant to this Agreement will be deemed to include: (i) the portion of those new or different products that contain the original features or (ii) if those features cannot be separated out, the entire new product.
9. Confidential Information.
9.1 Definition.
Under this Agreement a party (the “receiving party”) may have access to or be provided information and materials from or of the other party (the “disclosing party”) that are not generally known or readily ascertainable by third parties at the time of disclosure that are confidential or proprietary in nature, that the disclosing party desires to protect against unrestricted disclosure or competitive use, and/or which is of substantial value to such disclosing party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”).
9.2 EMPTRUST Confidential Information.
Confidential Information of EMPTRUST includes, without limitation, information specifically designated as confidential, the features and functions of the Software that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to CUSTOMER, the commercial terms (including pricing) of this Agreement but not the mere existence of this Agreement, performance and security test results (whether conducted by EMPTRUST or CUSTOMER), and any other proprietary, financial or business information supplied to CUSTOMER by EMPTRUST.
9.3 CUSTOMER’s Confidential Information.
CUSTOMER Confidential Information includes, without limitation, information specifically designated as confidential or uploaded to the Software by CUSTOMER (including without limitation, any and all personally identifiable information of a candidate whether validated or not through the Software), the commercial terms (including pricing) of this Agreement but not the mere existence of this Agreement, and any CUSTOMER business information uploaded to the Software.
9.4 Non-Disclosure and Use.
Each party will not, and will ensure that its employees, agents and contractors will not, make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information and represents that it exercises not less than reasonable care to protect its own Confidential Information. Upon either CUSTOMER’s or EMPTRUST’s request, the other party must advise whether or not it considers any particular information or materials to be Confidential Information hereunder, subject to the foregoing.
9.5 Exclusions.
Notwithstanding the foregoing, “Confidential Information” does not include information:
(i) Previously known to the receiving party without reference to Confidential Information, (ii) which is or becomes publicly known through no act or omission of the receiving party, (iii) which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) Received from a third party under no confidentiality obligation with respect to the Confidential Information, or (v) which is required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement or otherwise; provided that, the receiving party shall promptly give notice to the disclosing party of any such anticipated disclosure so that the disclosing party may seek a protective order or other appropriate remedies or restrictions on disclosure and use and/or waive the confidentiality restrictions above.
9.6 Survival.
The terms and provisions of this Section 9 shall survive the expiration or termination of this Agreement.
10. Intellectual Property.
10.1 Customer Ownership.
CUSTOMER retains all right, title and interest to all data uploaded to the Software by CUSTOMER (“Customer Data”). CUSTOMER hereby grants to EMPTRUST a non-exclusive, worldwide, royalty-free license during the Term to host, transmit, and display Customer Data as necessary to (a) provide, maintain, support, and improve the Software and Services, (b) prevent or address service, security or technical issues, and (c) comply with law or a valid legal process. EMPTRUST will not access Customer Data except as necessary to perform its obligations under this Agreement or as requested by CUSTOMER in connection with support matters.
10.2 EMPTRUST Ownership.
EMPTRUST retains all right, title and interest in and to:
(i) the Software (including any computer code, design, text, drawings, photographs, graphics, technical documentation including API’s, training manuals, knowledge base articles, sound recordings and video recordings as well as any copyrights, trademarks, patents or other intellectual property or proprietary rights comprising the Services or any component or element of the Services (collectively, the “Content”) without limitation and all modifications and/or enhancements to the Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether CUSTOMER has provided input regarding such modifications and/or enhancements); and (ii) transactional and performance data related to use of the Software which EMPTRUST may collect and use for its business purposes provided that such use does not reveal CUSTOMER’s identity, any personally identifiable candidate information or other Confidential Information of CUSTOMER. For the avoidance of doubt, EMPTRUST may use aggregated and/or de-identified data derived from CUSTOMER’s use of the Software for analytics, benchmarking, reporting, product improvement and other legitimate business purposes, and such aggregated and/or de-identified data will not be deemed CUSTOMER’s Confidential Information.
10.3 Deliverables.
With respect to custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared by EMPTRUST for CUSTOMER (“Deliverables”), CUSTOMER has a non-exclusive, nontransferable, internal use, object code license to use such Deliverables for its internal business purposes only during the Term. The Software, proprietary training content and any EMPTRUST services are not considered Deliverables (as that term is used in this Section), and EMPTRUST retains all rights, title and interest in and to these items. This Section does not obligate EMPTRUST to license, transfer or provide to CUSTOMER any third-party product or service required to operate or take advantage of any Deliverable. Except for the limited rights expressly granted to CUSTOMER in this Section 11 and elsewhere in this Agreement, no rights or licenses (whether by implication, estoppel or otherwise) are granted to CUSTOMER under any EMPTRUST intellectual property.
10.4 Customer Indemnity.
CUSTOMER will defend, indemnify and hold harmless EMPTRUST, its Affiliates, and their respective officers, directors and employees from and against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (a) Customer Data, including any allegation that Customer Data infringes, misappropriates or otherwise violates any intellectual property or other right of a third party, or (b) CUSTOMER’s use of the Software in violation of this Agreement or applicable law. EMPTRUST will (i) promptly notify CUSTOMER of any such claim; (ii) permit CUSTOMER to control the defense and settlement of the claim (provided that CUSTOMER may not settle any claim without EMPTRUST’s prior written consent if the settlement imposes any obligation on EMPTRUST or does not unconditionally release EMPTRUST from all liability); and (iii) provide reasonable cooperation at CUSTOMER’s expense.
10.5 Usage Restrictions. In addition to the restrictions set forth in Section 2.2, CUSTOMER will not, and will not permit any third party to: (a) access the Software or use any EMPTRUST Confidential Information for purposes of benchmarking, competitive analysis or building a competing product or service; or (b) publish or disclose to any third party any performance or benchmarking results relating to the Software without EMPTRUST’s prior written consent.
11. FEES AND PAYMENT:
11.1 Fees.
The following terms and conditions shall apply in respect of payment of Fees by Customer:
(a) Customer shall pay EMPTRUST the Fees in the amounts and on such terms as set out in the Order Form.
(b) Unless otherwise expressly provided in the Order Form, all Fees are expressed in United States Dollars ($USD).
(c) At EMPTRUST’ option, EMPTRUST may assess a late payment fee equal to one and one half per cent (1.5%) of the unpaid amount for each succeeding thirty (30) day period or portion thereof in which EMPTRUST has not received payment from Customer of Fees when due. If unpaid for a twelve months’ period, the effective rate of interest would be 19.56% per annum.
(d) Customer shall promptly and carefully review statements and invoices provided or made available by EMPTRUST to Customer reflecting transaction activity. If Customer believes any adjustments are needed with respect to any amounts due to EMPTRUST, or if Customer has any other questions or concerns regarding any statement or report provided by EMPTRUST, Customer will notify EMPTRUST in writing within TEN (10) days after such invoice or report is received. If Customer fails to notify EMPTRUST within such time frame, EMPTRUST will not be required to investigate the matter or effect any related adjustment, absent any willful misconduct by EMPTRUST. If Customer notifies EMPTRUST after such time period, EMPTRUST may still, in its sole discretion and at Customer’s cost, investigate the matter addressed in Customer’s notice, but EMPTRUST will not have any liability to effect any related adjustment absent any willful misconduct by EMPTRUST.
(e) At EMPTRUST’ option, EMPTRUST may suspend provision of any EMPTRUST products and services if EMPTRUST has not received payment of undisputed Fees from Customer when due upon fifteen (15) days’ written notice. EMPTRUST may require CUSTOMER to stop using or accessing the Software and Services in the event any undisputed amounts due hereunder are not paid within thirty (30) days of notice that payment is past due, until payment is made
(f)Failure by Customer to pay undisputed Fees when due shall be deemed to be a material breach of the Agreement.
(h) Where Fees are presented by EMPTRUST in an Order Form or any other written or electronic document, for EMPTRUST products or services which Customer has not subscribed to or licensed upon the Agreement becoming effective (an “Optional Service”), the fee rates for the Optional Service shall be binding only during the Initial Term of the Agreement. For greater certainty, unless specifically stated otherwise in the Agreement, the fee rate for Optional Services presented in any Order Form or other written or electronic document shall be the fee rate offered during the Initial Term of the Agreement and EMPTRUST may, at its sole discretion, offer a different fee rate during any Renewal Term or in any other Order Form or other written or electronic document.
11.2 Overage Fees.
Where the Order Form provides for only a fixed quantity of transactions, uses, or events (“Quantity”), and is silent on any usage beyond the Quantity (“Extra Usage”), Extra Usage will be invoiced to Customer in arrears as an overage fee. The above-described overage fee, will be specified in the Order Form and if not described in the order form will be at 1.25 times the standard rates of current service charges x quantity of excess use. Overage fees will be calculated and invoiced on the same billing cycle as the product or service to which it relates.
11.3 Collection Expenses.
Unless otherwise prohibited or limited by law, Customer agrees to reimburse EMPTRUST for any and all collection related expenses, including reasonable attorney fees, incurred by EMPTRUST in the collection of any past due amounts owed to EMPTRUST pursuant to the Agreement.
11.4 Credit Card or ACH Payments.
Customers paying Fees by either credit card or automated clearing house (“ACH”) debit entries, shall provide all necessary credit card or account information (the “Payment Information”) to facilitate payment. Customer shall submit its Payment Information to EMPTRUST by contacting [email protected] or through an online account maintained by it billing software provider or other similar sites as specified by EMPTRUST, and will promptly update the Payment Information if it changes. Customer authorizes EMPTRUST and gives permission to Customer’s financial institution to use the Payment Information for the purpose of paying the Fees payable under this Agreement, including any late, early termination, default, processing, overuse, penalty, insufficient funds or NSF, or interest fees owed under the Agreement. Customer agrees to be bound by any rules Customer’s own financial institution requires pre-authorized electronic funds payments and is responsible for all fees charged by Customer’s own financial institution associated with the payment Information. If Customer’s Payment Information is inaccurate and EMPTRUST is unable to withdraw or charge Customer using its Payment Information for the Fees due, Customer may be subject to applicable late or interest fees, chargeback fees, and any other fees or charges assessed by Customer’s financial institution or EMPTRUST. Neither EMPTRUST or any of its subsidiaries or affiliates shall bear any liability or responsibility for any losses of any kind that Customer may incur as a result of services incorrectly billed, for any delay in the actual date on which a Customer’s payment is charged by EMPTRUST or any services charges levied by Customer’s financial institution.
11.5 Appointment of Billing Agent.
EMPTRUST may, at its sole discretion, designate an Affiliate of EMPTRUST or other third party as a Billing Agent. Customer acknowledges and agrees that the Billing Agent is only an agent of EMPTRUST and is not themselves a party to the Agreement between Customer and EMPTRUST. EMPTRUST shall be responsible for any Billing Agent it appoints. EMPTRUST reserves the right, at its sole discretion, to revoke the appointment of a Billing Agent at any time and for any reason, upon provision of thirty (30) days’ notice to Customer, at which point all tasks and duties that were delegated to the Billing Agent will automatically and immediately revert back to EMPTRUST.
11.7 Accounts Payable Services.
Where Customer makes use of a third-party service to handle the receipt of invoices, the payment of fees, or other functions related to the payment of accounts on Customer’s behalf (an “AP Service”), EMPTRUST shall not be obligated to agree to or accept any terms that would create new obligations on EMPTRUST or modify any of EMPTRUST’ existing rights and obligations as set out under this Agreement. To the extent the AP Service charges any fees to EMPTRUST, Customer agrees to reimburse EMPTRUST for all such fees. A refusal by EMPTRUST to agree to any terms and conditions imposed by the AP Service or to submit invoices or accept payment from an AP Service shall not excuse Customer from its obligations to pay fees owing under this Agreement.
12. Taxes
12.1 Taxes.
All payments, fees and other charges payable by CUSTOMER to EMPTRUST under this Agreement are exclusive of all federal, state, local and foreign taxes, sales tax, levies and assessments. CUSTOMER is responsible for the payment of all such taxes, levies and assessments imposed on CUSTOMER or EMPTRUST arising out of this Agreement, excluding any tax based on EMPTRUST’s net income and/or any franchise or privilege tax on EMPTRUST’s business.
12.2 Tax Exempt.
If CUSTOMER is tax-exempt, CUSTOMER will either provide EMPTRUST with CUSTOMER’s tax exemption certificate or relevant legal authority establishing its tax-exempt status.
13. EMPTRUST Warranties.
EMPTRUST Warranties.
EMPTRUST represents warrants, and covenants as follows:
(i) EMPTRUST possesses all rights necessary to grant to CUSTOMER the License and all other rights set forth in this Agreement.
(ii) the Software (including without limitation, the Documentation, as defined below) and CUSTOMER’s use thereof, as contemplated by this Agreement, in all material respects and when used in accordance with this Agreement, do not infringe or misappropriate the intellectual property rights of a third party, subject to the exclusions and limitations in Section 17;
(ii) EMPTRUST incorporates commercially reasonable measures to screen for viruses, technically limiting devices, and/or technically limiting code (software enabling EMPTRUST’s remote access for purposes of conducting support services will not be considered disruptive code for purposes of this Section);
(iv) the Software will perform substantially in accordance with the user manuals and/or technical requirements documents that are generally provided by EMPTRUST in connection with the Software (“Documentation”); and
(v) the Services and support provided hereunder will be performed in a professional, workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices and otherwise consistent with those applicable laws, rules and regulations that are generally applicable to EMPTRUST in its capacity as a provider of the Software and Services, and not with laws uniquely applicable to CUSTOMER’s industry or business.
CUSTOMER’S EXCLUSIVE REMEDIES FOR BREACH OF THE WARRANTIES IN THIS SECTION 13 WILL BE: (A) RE-PERFORMANCE OF THE NON-CONFORMING SERVICES OR REPAIR OF THE NON-CONFORMING SOFTWARE, OR, IF EMPTRUST DETERMINES THAT THE FOREGOING IS NOT COMMERCIALLY REASONABLE, (B) TERMINATION OF THE AFFECTED ORDER FORM OR SERVICES AND A REFUND OF ANY PREPAID, UNUSED FEES FOR THE APPLICABLE SOFTWARE OR SERVICES, IN EACH CASE SUBJECT TO THE LIMITATIONS IN SECTION 15.
14. DISCLAIMER OF WARRANTY.
EXCEPT AS PROVIDED IN SECTION 13 ABOVE, THE SOFTWARE AND ANY CONTENT ACCESSIBLE THROUGH THE SOFTWARE ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMPTRUST, THIRD-PARTY CONTENT AND SERVICE PROVIDERS, AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INTERFERENCE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS AND SIMILAR LAWS OF ANY JURISDICTION.
EMPTRUST HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. EMPTRUST DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED.
SUBJECT TO THE TERMS OF THIS SECTION 14, THE SOFTWARE IS DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT EMPTRUST AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, COMPLIANCE, IMMIGRATION, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL or ATTORNEY SHOULD BE SOUGHT.
EMPTRUST EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE EMPLOYMENT (hr) LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA), OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THIS SOFTWARE AND RELATED SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW; IT IS EACH PARTY’S RESPONSIBILITY TO KEEP ABREAST OF CHANGES IN LAWS, REGULATIONS AND ACCOUNTING PRACTICES THAT AFFECT IT AND/OR ITS RESPECTIVE BUSINESS.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
15. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUE, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, LOST OPPORTUNITY COSTS, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ALLEGED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR (A) CUSTOMER’S PAYMENT OBLIGATIONS; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 16 AND 17 AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.4; AND (C) CUSTOMER’S BREACH OF SECTION 2 (SOFTWARE USAGE RIGHTS AND RESTRICTIONS) OR SECTION 9 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED, IN THE AGGREGATE, THE FEES PAID OR PAYABLE BY CUSTOMER TO EMPTRUST UNDER THE ORDER FORM GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
FOR PURPOSES OF CALCULATING THE FOREGOING LIABILITY CAPS, ANY FEES PAID BY CUSTOMER TO THIRD-PARTY VENDORS FOR CUSTOMER’S USE OF APIS, INTERFACES OR SERVICES FROM EXTERNAL VENDORS TO THE EXTENT SUCH FEES ARE PASSED THROUGH BY EMPTRUST TO CUSTOMER, WILL BE EXCLUDED IN ALL CIRCUMSTANCES.
BOTH PARTIES AGREE THAT IN NO EVENT WILL THE OTHER PARTY’S DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, OR SHAREHOLDERS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, ORDINARY, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, CONSEQUENTIAL, ANY PERSONAL LIABILITY OR ANY OTHER DAMAGES ARISING OUT OF THE AGREEMENT.
16. Data Privacy Indemnity.
In the event of a security incident, both parties agree as follows:
16.1 External Breach.
In the event of a security incident by anyone other than CUSTOMER’s employee or Third-Party Contractors of CUSTOMER that results in unauthorized access to or disclosure of CUSTOMER’s personally identifiable information (a “Security Incident”), EMPTRUST will: (i) initiate remedial actions that are consistent with industry standards to mitigate the effects of, and prevent recurrence of the Security Incident; (ii) immediately notify CUSTOMER of the Security Incident, its nature and scope, the nature and scope of remedial actions EMPTRUST will undertake, and the timeline within which EMPTRUST expects to remedy the Security Incident; and (iii) defend and indemnify CUSTOMER against any third-party claims alleging that the Security Incident was caused by EMPTRUST’s failure to maintain commercially reasonable security measures, and pay (A) those amounts finally awarded by a court or agreed in settlement approved by EMPTRUST, and (B) CUSTOMER’s reasonable, documented, out-of-pocket costs of legally required notifications and credit monitoring directly arising from such Security Incident. The foregoing states CUSTOMER’s sole and exclusive remedies, and EMPTRUST’s entire liability, for any Security Incident or unauthorized access to or disclosure of CUSTOMER Data and is subject to the limitations in Section 15.
16.2 Exception.
EMPTRUST is not obligated to pay for any notification or indemnity to the extent the security incident arises from: (i) CUSTOMER’s negligence or willful misconduct, including, without limitation, CUSTOMER’s employees or Third-Party Contractors wrongfully disclosing passwords; (ii) CUSTOMER’s failure to maintain reasonable password security; (iii) theft or loss of any of CUSTOMER’s computers or other devices containing personally identifiable information; (iv) any of CUSTOMER’s employees or Third-Party Contractors conspiring with any third party in securing unauthorized access to CUSTOMER’s data; or (v) CUSTOMER’s failure to remove access for ex-employees or terminated employees by disabling their accounts.
16.3 Internal Breach.
In the event of a security incident by CUSTOMER’s employee or Third-Party Contractor, CUSTOMER will maintain responsibility for initiating remedial actions and immediately notifying EMPTRUST of the method of the breach and steps CUSTOMER expects to take to remedy the breach.
16.4 Security.
Data transmitted to and from the Site will be encrypted for the User’s protection. EMPTRUST is not responsible for any interception or interruption of any communications through the internet or for changes to or losses of data due to User errors or a User’s or the CUSTOMER’s internally compromised system or the failure of other vendor systems. CUSTOMER is responsible for maintaining the security of its internal computer systems, and for maintaining password security, user IDs and other forms of authentication involved in obtaining access to password-protected or secure areas of EMPTRUST Software.
17. Infringement Indemnity.
17.1 EMPTRUST Obligations.
EMPTRUST will, at its expense, defend (or at its option, settle) and indemnify CUSTOMER from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim brought against CUSTOMER that the Software, any Documentation or any Deliverable infringes any copyright, patent, trade secret, or any other proprietary right or intellectual property of any third party and will pay any final judgments awarded or settlements entered into in such regard; provided that CUSTOMER gives reasonably prompt written notice to EMPTRUST of any such claim and gives EMPTRUST the authority to proceed as contemplated herein. The foregoing indemnity obligation shall survive the expiration or termination of this Agreement.
17.2 Exclusive Right to Defend.
EMPTRUST has the exclusive right to defend any infringement claim and make settlements thereof at its own discretion, and CUSTOMER may not settle or compromise such claim except with prior written consent of EMPTRUST. CUSTOMER shall give reasonable assistance and information as EMPTRUST reasonably requires (all without material expense to CUSTOMER) in the defense or settlement of any such claim.
17.3 Infringement Remedies.
In the event any infringement claim, action or allegation is brought or threatened, EMPTRUST may, at its sole option and expense: (i) procure for CUSTOMER the right to continue use of the Software, Deliverable or the infringing part thereof; (ii) modify, amend, or replace the Software, Deliverable or infringing part thereof, with other Software or Deliverable having reasonably comparable capabilities; or, if neither of the foregoing is commercially practicable, (iii) terminate this Agreement and refund to CUSTOMER the prorated amount of the fees prepaid by CUSTOMER that were to apply to the remainder of the unexpired Term, as calculated from the date CUSTOMER or EMPTRUST becomes aware of the infringement claim through the remainder of the unexpired Term.
17.4 Exclusions.
The foregoing obligations will not apply to the extent the infringement arises as a result of: (i) any use of the Software by CUSTOMER in a manner other than as specified in this Agreement and which results in infringement; (ii) any use of the Software by CUSTOMER in combination with other products, equipment, devices, software, systems or data not supplied by EMPTRUST to the extent such claim is directed against such combination; or (iii) any alteration, modification or customization of the Software made by CUSTOMER (or any party acting at CUSTOMER’s direction or on its behalf) if such infringement had not occurred without such modification or combination.
17.5 Entire Liability.
Section 17 states the entire liability of EMPTRUST with respect to infringement of any patent, copyright, trade secret or other intellectual property rights. The remedies set forth in this Section 17 are CUSTOMER’s sole and exclusive remedies for any claims of intellectual property infringement or misappropriation arising from the Software, Documentation or Deliverables. EMPTRUST’s aggregate liability under this Section 17 will be subject to the limitations set forth in Section 15.
18. Compliance with Laws and Control Disclaimer.
18.1 EXPORT LAWS AND REGULATIONS.
Access to and use of EMPTRUST Site (including the Software and Services) is subject to all applicable export control laws and regulations from United States federal, state and your operating country local laws and regulations. CUSTOMERS agree to abide by these laws and not use the Software and Services in any way that violates such laws or regulations. If the Services use premised-based Software, CUSTOMER may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, CUSTOMER represents and warrants that it is not located in any such country or on any such list. CUSTOMER also agrees that it will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
18.2 Compliance with Laws.
Each party shall comply with all laws, rule or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States which are applicable to the Software.
18.3 Legal Advice.
EMPTRUST will not provide CUSTOMER with any legal advice regarding compliance with employment, data privacy or other relevant laws, rules or regulations in the jurisdictions in which CUSTOMER uses the Software.
18.4 Software Configuration.
CUSTOMER understands that the Software can be configured and used in ways that do and do not comply with Laws and, subject to representations and warranties made by EMPTRUST under this Agreement, it is CUSTOMER’s sole responsibility to monitor its compliance and its employees’ compliance with all relevant Laws.
18.5 Control Disclaimer.
CUSTOMER acknowledges that EMPTRUST exercises no control over CUSTOMER’s specific staffing practices implemented using the Software or CUSTOMER’s decisions as to employment, promotion, advancement, termination, notification, or compensation of any job candidate or User (“Staffing Decisions”). Subject to representations and warranties made by EMPTRUST under this Agreement, EMPTRUST hereby disclaims all liability and damage arising from Staffing Decisions and from harmful data or code uploaded to the Software by CUSTOMER, its employees or contractors or job candidates.
18.6 IMPROPER RELIANCE.
EMPTRUST products and services are not intended to replace Customer and its Permitted Users’ own judgment, due diligence, or decision-making abilities and EMPTRUST expressly disclaims any representation, statement, suggestion, or inference to the contrary. Customer is expressly advised that they should not be relying on EMPTRUST’ products or services to make decisions on Customer’s behalf. Accordingly, and notwithstanding any provision to the contrary, EMPTRUST shall not be liable or responsible for any consequence arising from any decision, action, or inaction, including but not limited to any delivery or failure of any delivery, that could have been avoided or REASONABLY mitigated by Customer or A Permitted User engaging in reasonable due diligence in the Use of EMPTRUST products or services OR any results generated by EMPTRUST PRODUCTS OR SERVICES.
18.7 U.S. Government.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation.” All U.S. Government End Users acquire the EMPTRUST Software with only those rights set forth herein.
18.8 Government Departments.
In the event that Customer is a governmental entity, only those departments or agencies listed in the Order Form shall have the right to use the EMPTRUST products or services. Governmental departments or agencies not listed must have a separate license agreement and pay additional license fees.
19.Governing Law.
UNLESS PROHIBITED BY LAW, THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND IS GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF MARYLAND, WITHOUT REFERENCE TO SUCH STATE’S CONFLICTS OF LAWS PRINCIPLES. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
19.1 Dispute Resolution.
Except for the right of either party to apply to a court of competent jurisdiction for interim or interlocutory relief or other provisional remedy to prevent irreparable harm pending final determination or to pursue a claim for infringement of any intellectual property right, any dispute or controversy between the parties arising out of or relating to the Agreement (each, a “Dispute”) shall be resolved by first attempting good faith negotiations between the parties which negotiations shall not terminate until the Dispute has been considered by a senior officer of each party.
19.2 TIME FOR COMMENCEMENT OF ACTION.
No action against EMPTRUST or any of its directors, officers, employees or shareholders, regardless of form (including negligence), arising out of any claimed breach of the Agreement or transactions under the Agreement or in any other way related to the Agreement may be brought by CUSTOMER more than one (1) year after the cause of action has first arisen.
20. Consent to Conduct Business Electronically.
20.1 Consent to Electronic Communications.
EMPTRUST may be required by law to send communications (as defined herein) to CUSTOMER that may pertain to the Software and/or the use of information CUSTOMER may submit to EMPTRUST. Additionally, certain of the third-party services CUSTOMER chooses may require communications with the third parties who administer these programs. CUSTOMER agrees that EMPTRUST, on behalf of itself, and others who administer such services (as applicable), may send communications to CUSTOMER by email and/or may make communications available to CUSTOMER by posting them at one or more of EMPTRUST’s websites. CUSTOMER consents to receive these communications electronically. For purposes of this Section 20.1, the term “Communications” means any non-confidential notice, record, agreement, or other type of information that is made available to CUSTOMER or received from CUSTOMER in connection with the Software.
20.2 Consenting to Do Business Electronically.
The decision whether to do business electronically is CUSTOMER’s, and CUSTOMER should consider whether it has the required hardware and software capabilities described below. CUSTOMER’s consent to do business electronically and EMPTRUST’s agreement to do so cover all transactions CUSTOMER conducts through the Software, for as long as CUSTOMER remains a subscriber of the Software.
20.3 Hardware and Software Requirements.
In order to access and retain an electronic record of Communications, CUSTOMER will need a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 256-bit encryption, and an e-mail address. By signing the Agreement, CUSTOMER is confirming to EMPTRUST that CUSTOMER has the means to access, and to print or download, Communications. EMPTRUST does not provide ISP services. CUSTOMERS must have their own Internet service provider.
21.NOTICES
21.1 General Notices.
Any notices, demands and other communications pursuant to the Agreement shall be in writing and shall be delivered either in person, mailed by first class mail and postage prepaid (registered or certified to the extent available, and via airmail if overseas), couriered overnight, or transmitted electronically in a PDF or similar document-scanning file format to the party to receive the notice at the applicable address, set out on in the Agreement or at such other address as may be designated in writing by the receiving party, or electronically to Customer’s registered users via the notification mechanism contained within applicable EMPTRUST products or services or EMPTRUST’ customer support portal. Any notices of fee increases or changes in payment methods may, in addition to the above, be provided with or within a regularly scheduled invoice. All such notices shall be effective upon receipt.
21.2 Security Notices.
Notwithstanding anything to the contrary under this Agreement, EMPTRUST will only send notices related to the security or integrity of EMPTRUST’ network, products, services, systems, or any data managed by or under the care of EMPTRUST to Customer via the “Security Contact” OR (Account Administrator if no security contact is provided) and as designated by Customer in EMPTRUST’ online support portal. Such notices may be provided electronically or through EMPTRUST’ support portal. Customers agree that notices in this manner shall satisfy any requirement to provide notice in writing.
22. Independent Contractors.
EMPTRUST is an independent contractor. EMPTRUST’s employees are not entitled to any employment rights or benefits from CUSTOMER and EMPTRUST will be solely responsible therefor.
23. Other Services.
CUSTOMER may be made aware of or offered services, features, products, applications, online communities, or promotions provided by EMPTRUST. If CUSTOMER decides to use additional or other services, CUSTOMER may be subject to additional terms and conditions governing these services (to be provided by EMPTRUST to CUSTOMER) and separate fees (as disclosed to CUSTOMER) may apply.
24. Links to Third Party Sites; Other Content; Third Party Services.
The Services may display, include or make available, content, data, information, applications or materials from third parties or provide links to certain third party websites requested by Customer (provided that, EMPTRUST represents and warrants that no such third party content, data, information, application or material is incorporated into or a component of the Software, Documentation or Service). Third party materials and links to other websites are provided solely as a convenience to CUSTOMER. CUSTOMER acknowledges and agrees that EMPTRUST is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such third-party materials or websites. EMPTRUST does not warrant or endorse and does not assume and will not have any liability or responsibility to CUSTOMER or any other person for any third-party services, third-party materials or websites, or for any other materials, products, or services of third parties. CUSTOMER also agrees that any third-party charges that are necessary for CUSTOMER to use the Site, such as usage fees, internet charges and service provider charges, are CUSTOMER’s responsibility and not that of EMPTRUST. CUSTOMER understands that by using any of the third-party services, CUSTOMER may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, CUSTOMER agrees to use such services at its sole risk and EMPTRUST shall not have any liability to CUSTOMER for content that may be found to be offensive, indecent, or objectionable. EMPTRUST DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT, INFORMATION OR SERVICE OFFERED BY A THIRD PARTY THROUGH THE SITE AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN ANY USER OF THE SITE AND ANY SUCH THIRD-PARTY PROVIDER.
25. PRIVACY.
For details about EMPTRUST’s privacy policies, please refer to the Privacy Policy on the EMPTRUST website relating to the Software. In the event of a conflict between this Agreement and the Privacy Statement, this Agreement shall control. CUSTOMER agrees to be bound by the applicable EMPTRUST Privacy Policy, as it may be reasonably amended for general application from time to time in accordance with its terms.
26. FEEDBACK.
EMPTRUST may provide CUSTOMER with a mechanism to provide feedback, suggestions and ideas, if CUSTOMER chooses, about its online products and services (“Feedback”). CUSTOMER agrees that EMPTRUST may, in its sole discretion, use the Feedback in any way, including in future modifications of the Software, multimedia works and/or advertising and promotional materials relating thereto. CUSTOMER hereby grants to EMPTRUST a perpetual, worldwide, fully transferable, sub-licensable (through multiple tiers), non-revocable, fully paid-up, royalty-free license to use, modify, create derivative works from, distribute, display and otherwise exploit, any information CUSTOMER provide to EMPTRUST in the Feedback (provided that, in no event will such license cover the use of CUSTOMER’s Confidential Information and/or any intellectual property of CUSTOMER).
27. Waiver.
The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter.
28.Merger and Amendments.
This Agreement includes master terms and order form(s) attached hereto and the statement of work agreed upon in relation hereto. In the event of a conflict between this Agreement and any such statement of work, this Agreement shall control. Such documents encompass the entire agreement between CUSTOMER and EMPTRUST with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral with respect to such subject matter.
29. Severability.
If any provision, or portion thereof, of this Agreement, is or becomes invalid, unenforceable or void for any reason under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.
30. Assignment.
CUSTOMER may not transfer or assign this Agreement without EMPTRUST’s prior written consent, including by operation of law or through merger or acquisition, which consent will not be unreasonably withheld.
31.Survival.
The provisions of this Agreement that are noted to expressly survive the termination or expiration hereof or which are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement, including, without limitation, Sections 9 (“Confidential Information”), 10 (“Intellectual Property”), 13 (“EMPTRUST Warranties”), 14 (“Disclaimer of Warranty”), 15 (“Limitation of Liability”), 16 (“Data Privacy Indemnity”) and 17 (“Infringement Indemnity”), will survive any such termination or expiration.
32. English Language Provision.
The parties acknowledge having required that the Agreement and all documents, notices and judicial proceedings entered into, given or instituted pursuant thereto, or relating directly or indirectly thereto, be drawn up in English.
33. Single Agreement.
The Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.
34. Electronic Documents and Execution.
The use of electronic signatures (including, without limitation, DocuSign™ and AdobeSign™) and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity, and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law. Any requirement to provide original executed documents shall be deemed to be met by the provision of an electronically signed copy of that document.
BY SIGNING BELOW, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THEY HAVE READ AND UNDERSTAND THE TERMS OF THE MASTER TERMS, AND THE LIMITATION OF LIABILITY PROVISIONS CONTAINED THEREIN.
IN WITNESS WHEREOF, each party has executed this Master Terms by its duly authorized representatives as set forth below:
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Annexure A: Customer Support Service Level Agreement for EMPTRUST Products
EMPTRUST provides support for all customers based on EMPTRUST software services subscribed to by the customer. Configuration of new features or new integrations may be subject to additional cost and/or a statement of work depending on complexity.
Customer and Technical Support
EMPTRUST provides support on a “priority” basis. As such, customers with the most critical request(s) will be serviced first, pursuant to the following EMPTRUST guidelines:
| Priority Level | Description | Target Response Time |
| High | A critical Customer issue with no available workaround where the Subscription Services cannot be accessed, or where the Subscription Services are experiencing major system degradation, such as:
· Cloud outage · Unable to access a critical function within the Software Services |
Thirty (30) minutes and initial response from helpdesk tool |
| Medium | A serious Customer issue which impacts ability to utilize the software subscription Services effectively, such as:
· Intermittent or inconsistent functionality results or data accuracy · Data display inaccuracies or inconsistencies across multiple tasks · Application performance is inconsistent or fluctuates |
One (1) business hour and initial response from helpdesk tool |
| Low | Non-critical Customer issues generally entail use and usability issues or “how to” questions, such as:
· How do I set up a workflow? · How do I run a report? |
Within two business (2) hours |
Service Coverage Period
EMPTRUST provides technical support 24 hours a day, seven days a week, 365 days a year, for high priority issues such as system outages. Customer support via our helpdesk portal is available 24×7 via our help desk ticketing tool. Customers are encouraged to create a support ticket for tracking and visibility for all EMPTrust personnel, so items can be resolved or marked for escalation to support members.
EMPTRUST provides direct customer support during business hours for high, medium and low priority issues. Business hours are normally from 9.00 AM EST till 5.30 PM EST/PST for North American customers excluding US Federal Holidays.
Support Language
Customer support is provided in English during local business hours and in subject to availability of customer service personnel in Spanish. Primary support is targeted at core HR users of the system.
Support Exclusions
Support services do not include service to the Subscription Services resulting from, or associated with:
· Failure to use the Subscription Services in accordance with EMPTRUST’s published specifications.
· Customer’s end user computer or operating system malfunctions, including browser and internet connection, or failure of the internet.
· Services required for Subscription Services programs or conversions from products or software not supplied by EMPTRUST; or
· Implementation services, configuration changes, and custom reports.
Critical Outages
EMPTRUST will provide continuous effort on all high priority events through either bug identification, the development of a workaround, or problem resolution. If this effort goes beyond normal business hours, the case may be passed to the after-hours team. Ongoing continuous effort may also be dependent on the customer’s ability to provide a resource to work with EMPTRUST during this period.
Technical Escalation
EMPTRUST’s case resolution process is a team-based approach structured around specific features within the Subscription Services and staffed by EMPTRUST support engineers covering the full spectrum of skill sets and technical expertise. The teams are empowered to dynamically apply the appropriate resources to a case based on severity and complexity for the fastest resolution time possible.
The teams are also integrated with the development engineering and cloud operations staff and engage in with their assistance and technical guidance when necessary and/or directly escalate depending on case severity and time to resolve considerations.
For situations that contain multiple cases, an account or relationship manager may be assigned to act as a single point of contact and communication regarding case resolution status, action plan development, resource integration and implementation co-ordination. The account or relationship manager remains engaged until the situation has been successfully remediated.
Management Escalation
Customers may, at any time, ask to speak to an EMPTRUST customer support manager if they experience dissatisfaction with the level of service received with respect to a specific case or service in general. To contact an EMPTRUST global support manager, please telephone your EMPTRUST support services center and ask to speak to a manager during business hours. Phone numbers are listed on the EMPTRUST site at www.emptrust.com.
Remote Support
EMPTRUST utilizes a web-based screen-sharing tool of its choosing that enables EMPTRUST to support Customers by empowering our support representatives to remotely view the computer of a customer’s user. By connecting through the internet or via intranets and extranets, support representatives will work in real time with Customer’s users and quickly escalate to desktop sharing, which features mutual mouse and keyboard control and whiteboard capability.
Additional Support Options
As part of the Support Services, EMPTRUST may also provide:
· EMPTRUST Onboarding Experience: Step-by-step guidance to assist Customer during onboard implementation activities
· Success Manager: A EMPTRUST resource to provide guidance on best practices in using Subscription Services
· Integration/API Support: Assistance with enhancing and updating existing APIs and integrations
· New Feature Review and Activation Assistance: Guidance on new features of Subscription Services and how to enable them
· Industry Best Practices Review: Review configuration and use of Subscription Services against industry peers and provide recommendations
· Configuration Review: Assistance with optimizing the use of Subscription Services based on your current usage patterns.
Service Uptimes
EMPTRUST will make commercially reasonable efforts to make the software services available 24x7x365 days excluding scheduled downtime or any unavailability caused by circumstances beyond our control, including such as act Of God, act of government, war, flood, earthquake, civil unrest, internet outages from infrastructure providers or hosting providers or denial of service attacks resulting from large scale disruptions to work caused by the above circumstances.
a. The services will be available to customers on 24 x7 x 365 days with a scheduled uptime of 99.8% excluding scheduled maintenance downtime as below
b. Scheduled maintenance downtimes are normally scheduled for regular software updates from Operating system, security updates during weekends Saturday and Sunday from 11.59 PM EST through 5.00 AM EST
c. Emergency security patches fixes or system updates for regulatory updates or application patches can be scheduled with notice to our customers during weekdays from 11.59 PM EST to 5.00 AM EST. Updates are performed as a rolling service update to prevent service disruptions to customer operations across all our systems during this time using technically feasible efforts.
Software Releases, Versions and Patches
EMPTrust will roll out and provide notices of new features and enhancements including software version updates on a regular basis based on regulatory updates, government updates to E-Verify or related systems, partner integrations, system improvements or customer requested enhancements and will make all efforts to inform customer of these changes by providing notices on its website, help desk tools, documentation or blogs.