Last Updated: September 3, 2024

Terms and Conditions

1. Services.

a. Access and Use

Subject to Client’s compliance with the terms and conditions of this Agreement, HR Acuity hereby grants Client a limited, non-transferable, revocable, non-exclusive right to access and use HR Acuity’s software-as-a-service offering identified on an Order Form (each, an “Order Form”), on a subscription basis in object code only (collectively, the “Software Applications”), during the length of term described in the applicable Order Form, solely for use by Client’s employees, consultants, contractors, and agents who are authorized by Client to access and use the  Software Applications under the rights granted to Client pursuant to this Agreement, and for whom access to the Software Applications are purchased in the applicable Order Form(s) (“Authorized Users”). 

b. Professional Services. 

HR Acuity will provide the Support Services (as defined in Section 2) to Client and certain implementation services, training, consulting, and other professional services if identified under a statement of work attached to an Order Form (collectively, “Professional Services” and with the Software Applications and Support Services, the “Services”). Such use is limited to Client’s internal use. HR Acuity will provide Professional Services in accordance with the terms of each statement of work attached to the applicable Order Form.

c. Scope of Services.

Subject to the terms and conditions of this Agreement, HR Acuity shall provide to Client the Services as described in separate Order Forms entered into under this Agreement. Upon the execution by both parties of an Order Form, such Order Form and the Services provided thereunder will be subject to the terms and conditions of this Agreement, and the terms and conditions hereof shall be incorporated into such Order Form by reference. Each Order Form shall be interpreted to be a separate agreement between the parties that is governed by the terms of this Agreement and any additional terms contained in the Order Form.  

d. Reservation of Rights.

Nothing in this Agreement grants to Client any ownership right, title or interest in or to (including any license under) any Intellectual Property Rights in or related to the Servicesor HR Acuity Materials. For purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Ownership of the Software Applications, HR Acuity Materials, and all Intellectual Property Rights therein shall remain the exclusive property of HR Acuity.  

2. Support Services; System Control. 

a. Support Services. 

HR Acuity shall provide maintenance and user support services to Client in connection with the Services as set forth in Schedule 1 of this Agreement (the “Support Services”).

b. Service and System Control. 

Except as otherwise expressly provided in this Agreement, as between the parties: 

1. HR Acuity has and will retain sole control over the operation, provision, maintenance, and management of the Services; and 

2. Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of a third party (collectively, “Client Systems”). Client has sole responsibility for all access to and use of the Services by any person by or through the Client Systems or any other means controlled by Client or any Authorized User, including (1) any results obtained from any use of the Services; and (2) conclusions, decisions, or actions based on such use. 

c. Services Improvements and Upgrades.

HR Acuity reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to maintain or enhance: (i) the quality or delivery of HR Acuity’s services to its clients; (ii) the Services’ cost efficiency or performance; or (iii) to comply with applicable law, rule, or regulation.

d. Suspension or Termination of Services.

HR Acuity may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services (each a “Suspension of Services”), without incurring any resulting obligation or liability, if: (i) HR Acuity receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires HR Acuity to do so; or (ii) HR Acuity believes, in its good faith and using its reasonable discretion, that: (1) Client, any Authorized User, or any other person operating under Client’s account, has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (2) Client, any Authorized User, or any other person operating under Client’s account utilizes the Services to harm HR Acuity’s other clients or violate the rights of a third party; (3) Client, any Authorized User, or any other person operating under Client’s account is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (4) this Agreement expires or is terminated. HR Acuity shall provide prior notice to Client before any such Suspension of Services to the fullest extent possible, but reserves the right, in its sole discretion, to enact a Suspension of Services without notice to Client if HR Acuity determines an immediate Suspension of Services is reasonably necessary based on the potential risk associated with Client’s or any Authorized User’s use of the Services.  This Section 2d does not limit HR Acuity’s exercise of any of its other rights or remedies, whether at law, in equity, or under this Agreement. 

3. Access and Use Restrictions. 

Client shall not, and shall not permit any other person to, access or use the Software Applications or Support Services except as expressly permitted by this Agreement (collectively, “Use Restrictions”). For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: 

1. upload, store, or transmit an individual’s social security number, driver’s license number or other government-issued identification number, birth certificate, marriage certificate, passport number, bank or credit card number, taxpayer identification number, credit history, insurance policy number, unredacted health or medical records, unredacted criminal background information, mother’s maiden name, or date and place of birth (collectively, “Excluded Information”), except to the extent that such information is directly related to, and necessary for the resolution of, an employee relations matter or investigation; 

2. access or use the Services in a manner that infringes, misappropriates, or otherwise violates any intellectual right of any third party, or that violates any applicable law, rule, or regulation; 

3. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid-access credentials; 

4. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Services to any person other than an Authorized User; 

5. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; 

6. conduct unauthorized penetration testing or testing of the Services including, but not limited to, protocol flooding, load testing, stress testing, and resource request flooding; 

7. input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; 

8. remove or obscure any trademark, copyright, or other proprietary notice; 

9. access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to HR Acuity’s detriment or commercial disadvantage; and 

10. otherwise access or use the Software Applications or Support Services beyond the scope of the authorization granted under Section 1 of this Agreement. 

4. Client Obligations; Client Data. 

a. Client Obligations.

Client Obligations. In connection with HR Acuity’s performance of the Services, Client shall perform those tasks and assume those responsibilities specified in each applicable Order Form and this Agreement. Client understands that HR Acuity’s performance of the Services under any Order Form is dependent upon Client’s timely and effective satisfaction of such responsibilities. Effect of Client Failure or Delay. HR Acuity is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. 

b. Corrective Action and Notice.

If Client becomes aware of any actual or threatened activity prohibited by Section 3, Client shall, and shall cause its Authorized Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and destroying any data to which any of them have gained unauthorized access); and (ii) notify HR Acuity of any such actual or threatened activity.

c. Client Data; Access and Security. 

Client shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Client Data, including the uploading or other provision of Client Data for processing by the Services. For purposes of this Agreement, “Client Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Client or an Authorized User by or through the Services. For the avoidance of doubt, Client Data does not include Resultant Data (as defined below) or any of HR Acuity’s internal information documenting Client’s usage of and access to the Services.

d. Resultant Data. 

Client acknowledges and agrees that HR Acuity may use Client Data when compiling Resultant Data.  For purposes of this Agreement, “Resultant Data” means aggregate and anonymized data, information, and statistics related to Client’s use of the Services that is used by HR Acuity to compile (i) performance information related to the provision and operation of the Services; and (ii) employee relations and investigations data and statistics accessible by HR Acuity clients for benchmarking and comparative purposes.  For clarity, Resultant Data shall not be traceable to Client or any Authorized User.

e. Reliance on Services; No Legal Advice. 

Client has and will retain sole responsibility for all conclusions, decisions, and actions based, in whole or in part, on Client’s or any Authorized User’s access or use of the Services, including but not limited to employment actions taken by Client.  Client acknowledges that the Services are not, and are not intended to be, a substitute or alternative to legal advice.

5. Fees and Payment. 

a. Fees. 

Client shall pay all fees set forth in each Order Form (the “Fee”). Client shall be responsible for payment of all Feesu stated on the applicable Order Form.  Client shall remain responsible for payment of all Fees stated regardless of Client’s actual usage of the Services.

b. Billing and Payment Terms. 

All payments to HR Acuity must be paid by check, ACH or wire; no other forms of payment will be accepted, including but not limited to any payment network that charges transaction fees. Client shall pay all invoices in accordance with the payment terms set forth in the applicable Order Form.  Payment obligations are non-cancelable and Fees paid are non-refundable. Invoiced amounts that are unpaid and outstanding after thirty (30) days will accrue late interest at 1.5% of the outstanding balance each month, or the maximum rate permitted by law, whichever is lower, from the date such outstanding amount was due until the date paid. 

c. Suspension of Services. 

In the event that payment is more than thirty (30) days past due, HR Acuity may provide Client with notice of intent to suspend the Services. If Client does not remit full payment within forty-five (45) days of such notice, HR Acuity reserves the right to suspend Client’s access to the Services until Client makes payment in full, without incurring any obligation or liability to Client by reason of such suspension.  

6. Taxes. 

Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with the purchases hereunder. If HR Acuity has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides HR Acuity with a valid tax exemption certificate authorized by the appropriate taxing authority. HR Acuity is solely responsible for taxes assessable against it based on its income, property and employees. 

7. Term and Termination. 

a. Term.

This Agreement begins on the Effective Date and shall remain in effect so long as an Order Form remains in effect between the parties (the “Term”) and shall automatically terminate upon expiration and/or termination of all Order Forms that the parties enter into.  The length of term of each Order Form shall be set forth in such Order Form. In the event that this Agreement is terminated, Order Forms in effect at the time of the termination shall be simultaneously terminated unless otherwise agreed by the parties.

b. Termination for Cause.

A party may terminate this Agreement or a particular Order Form for cause: (i) immediately if the other party has failed to cure a material breach of this Agreement or any Order Form within thirty (30) days of receiving written notice of that material breach from the other party; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

c. Effect of Termination. 

1. Upon termination of this Agreement for any reason: (1) HR Acuity may terminate the Services immediately; (2) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will terminate immediately and all Client cases will close; and (3) Client will pay all unpaid amounts owed to HR Acuity for Services performed through the effective date of termination.  
2. If HR Acuity terminates this Agreement or any Order Form pursuant to Section 7b, then all Fees that would have become payable to HR Acuity had this Agreement and each Order Form remained in effect until the expiration of the terms of the applicable Order Forms (as if such earlier termination had not occurred) will become immediately due and payable and the Client will pay all such Fees. 
3. If Client terminates this Agreement or any Order Form pursuant to Section 8b, then Client will be relieved of any obligation to pay any fees attributable to the period after the effective date of such termination with respect to the terminated Order Form(s) (and HR Acuity shall refund to Client any fees paid in advance for Services that HR Acuity has not performed as of the effective date of termination (on a pro-rata basis)). 
4. In no event will the termination of this Agreement relieve the Client of its obligation to pay any amounts payable to HR Acuity for the period prior to the date of termination. 
5. HR Acuity shall, after receiving final payment, promptly provide Client with a file containing a copy of all data stored in HR Acuity’s computer memory or other storage device as of the date of termination or expiration and delete all copies of data from HR Acuity’s computer memory or other storage devices. 

8. Information Security; Data Privacy Laws and Regulations. 

a. Information Security. 

HR Acuity has implemented, maintains, and complies with a comprehensive written information security program (“ISP”) that includes appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Client Data.  The ISP includes, but is not limited to (i) measures designed to prevent unauthorized access to or disclosure of Client Data to any third party; (ii) risk assessment strategies to identify vulnerabilities and threats to information resources; and (iii) incident response planning and notification procedures.  The ISP and related documentation is available at https://resources.hracuity.com/infosecdocs and may be updated from time to time; provided, however, that HR Acuity shall not make any changes to the ISP that would result in safeguards less protective of Client Data. 

b. Security Reviews and Questionnaires.

Client may request security reviews or questionnaires to be completed by HR Acuity no more than once every twenty-four (24) months at no additional cost. Any additional reviews or questionnaires shall be subject to the fees set forth in the applicable Order Form. HR Acuity shall, in its sole discretion, which shall not be unreasonably withheld, provide Client with such additional information, provided, however, that (i) Client’s request is consistent with industry standards and HR Acuity’s policies and procedures and (ii) Client pays the additional fee. Client will treat such information, security reviews or questionnaires, and any other reasonably related documents as HR Acuity’s Confidential Information under this Agreement. 

c. Independent Security Assessment.

HR Acuity conducts regular assessment and penetration testing of the Services to mitigate security risks. Clients requiring an independent security assessment may request authorization to conduct testing with a minimum of 10 days’ notice using this form. HR Acuity reserves the right to limit authorized testing timeframe or frequency, and prohibit certain forms of testing.   

d. Data Privacy Laws and Regulations. 

HR Acuity shall comply with, and process all Client Data in accordance with, all applicable laws and regulations concerning the privacy, security, or processing of personal information (“Data Privacy Laws”).  To the extent that Client Data from the European Economic Area, the United Kingdom, and Switzerland are processed by HR Acuity, the parties shall enter a data processing agreement that includes the Standard Contractual Clauses.  To the extent applicable, HR Acuity acknowledges that it is a Service Provider as defined in the California Consumer Privacy Act of 2018, Cal. Civil Code §1798.100 et seq., (“CCPA”) and related regulations, as may be amended from time to time. HR Acuity shall not:  (i) retain, use, or disclose any consumer personal information for any purpose other than in connection with performing the Services hereunder; or (ii) collect, sell, or use any Client personal information except as necessary to perform the business purpose set forth in this Agreement. HR Acuity certifies that it understands the restrictions set forth in the CCPA and its obligations thereunder and will comply with them, to the extent applicable to it. Notwithstanding anything in this Agreement or other documents, the parties acknowledge and agree that Client’s provision of access to personal information is not part of and explicitly excluded from the exchange of consideration, or any other things of value, between the parties. 

9. Confidentiality; Excluded Information.  

a. Confidential Information. 

In connection with the Services provided under this Agreement, each party (as the “Disclosing Party”) may disclose or make available certain Confidential Information to the other party (as the “Receiving Party”). Subject to the limitations set forth in Section 3a, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that derives its value from its non-public or proprietary nature, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. 

b. Protection of Confidential Information.

As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: 

1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; 

2. except as may be permitted by and subject to its compliance with Section 10c, not disclose or permit access to Confidential Information other than to its employees or agents who: (1) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (2) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10b; and (3) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10; 

3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own most sensitive information and in no event less than a reasonable degree of care; 

4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps prevent further unauthorized use or disclosure; and 

5. ensure its employees’ and agents’ compliance with, and be responsible and liable for any of its employees’ and agents’ non-compliance with, the terms of this Section 10. 

c. Compelled Disclosures.

If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 10. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. 

d. Excluded Information. 

Client acknowledges that the Services are not intended to collect, store, transmit, or receive Excluded Information, as defined in Section 3a. Client shall not, and shall not permit any Authorized User or other person to, store or transmit any Excluded Information through the Services. Client and its Authorized Users are solely responsible for reviewing all data uploaded to ensure that the Services are not used to store or transmit Excluded Information. Notwithstanding the foregoing, HR Acuity shall take reasonable efforts to treat Excluded Information with the same level of care as any other data, provided, however, that Client shall remain solely responsible for any losses, third party claims, demands, liabilities, costs or expenses arising out of the disclosure of such Excluded Information.  

10. Intellectual Property; Client Data; Resultant Data. 

a. HR Acuity Materials. 

For purposes of this Agreement, “HR Acuity Materials” means information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software (including source code and object code), and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by HR Acuity in connection with the Services. For the avoidance of doubt, HR Acuity Materials include Resultant Data (as defined in Section 4d) but do not include Client Data (as defined in Section 4c). All right, title, and interest in and to the HR Acuity Materials, including all Intellectual Property Rights therein, are and will remain owned by HR Acuity. Client has no right, license, or authorization with respect to any of the HR Acuity Materials except as expressly set forth in Section 1 during the Term. All other rights in and to the HR Acuity Materials are expressly reserved by HR Acuity. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to HR Acuity an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto. 

b. Client Data. 

Subject to the rights and permissions granted in Section 11c, as between Client and HR Acuity, Client is and will remain the sole and exclusive owner of all right, title, and interest in and to all Client Data, including all Intellectual Property Rights relating thereto. 

c. Consent to Use Client Data. 

Client hereby irrevocably grants all such rights and permissions in or relating to Client Data as are necessary or useful to HR Acuity to enforce this Agreement and exercise HR Acuity’s rights and perform its obligations hereunder. 

d. Trademarks. 

No license to any trademark of HR Acuity is granted by this Agreement.

11. Indemnification; Limitations of Liability.  

a. Indemnification by HR Acuity. 

Provided that Client complies with all terms of this Agreement, including Use Restrictions, HR Acuity shall defend, indemnify and hold harmless Client, its members, managers, officers, directors, franchisees, and/or employees from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees and expenses, resulting from (i) actual infringement of any valid patent, copyright, or other property right as a result of its use of the Services, or (ii) the gross negligence or willful misconduct of HR Acuity, its employees or agents.

b. Indemnification by Client. 

Client shall defend, indemnify and hold harmless HR Acuity, its members, managers, officers, directors, employees and/or agents from and against any and all third party claims, demands, liabilities, costs and/or expenses, including reasonable attorneys’ fees and expenses, resulting from (i)  any conclusions, decisions, and actions based, in whole or in part, on Client’s or any Authorized User’s access to or use of the Services; (ii) the gross negligence or willful misconduct of Client, its employees or agents, (iii) Client’s use of the Services in any manner that is not in compliance with the Use Restrictions set forth herein; and (iv) disclosure of Excluded Information to HR Acuity.

c. Indemnification Procedure.

The foregoing indemnification obligations are conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action, (ii) reasonably cooperating and assisting in such defense and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent, which consent shall not be unreasonably withheld, conditioned, or delayed.

d. EXCLUSION OF DAMAGES. 

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS SHALL CONSTITUTE DIRECT DAMAGES.

e. CAP ON MONETARY LIABILITY. 

IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TWO TIMES (2X) THE AMOUNTS PAID BY CLIENT TO HR ACUITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATION IN THIS SECTION 12E SHALL NOT APPLY TO LIABILITY ARISING FROM: (I) BODILY INJURY OR DEATH; (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS; (III) CLIENT’S OBLIGATION TO PAY AMOUNTS OWED FOR FEES UNDER THIS AGREEMENT AND ANY ORDER FORM; or (IV) CLIENT’S INFRINGEMENT OF HR ACUITY’S INTELLECTUAL PROPERTY RIGHTS. 

12. Representations and Warranties.   

a. Mutual Representations and Warranties. 

Each party represents and warrants to the other party that:

1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; 

2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; 

3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and 

4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.  

b. HR Acuity Representations and Warranties. 

HR Acuity represents, warrants and covenants that: (i) all Professional Services will be performed in a timely, professional and workmanlike manner in accordance with applicable industry standards and best practices, (ii) the Services provided hereunder will comply with all applicable U.S. federal or state laws, rules and regulations, and (iii) HR Acuity is the owner or has obtained an appropriate license to provide to Client the Software Applications and Support Services hereunder and all portions thereof and that it has the right to grant Client the rights granted hereunder. HR Acuity specifically disclaims any warranty or representation that it has in the past or will in the future comply with any law of any foreign country or that the Services comply with any accessibility requirements. 

c. DISCLAIMER OF WARRANTIES. 

EXCEPT AS PROVIDED IN THE PRECEDING PARAGRAPH, THE SERVICES ARE PROVIDED “AS IS.”  TO THE MAXIMUM EXTENT PERMITTED BY LAW, HR ACUITY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HR ACUITY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS CLIENT OR ANY USER MAY HAVE, OR THAT THE SERVICES WILL OPERATE ERROR-FREE, IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES ARE COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO CLIENT OR CERTAIN AUTHORIZED USERS. 

d. Client Representations and Warranties. 

Client represents, warrants, and covenants to HR Acuity that Client owns or otherwise has and will have the necessary rights and consents in and relating to all Client Data transmitted and uploaded to the Services in accordance with this Agreement, such that Client’s use of the Services in conjunction with such Client Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or privacy rights of any third party or violate any applicable law, rule, or regulation. 

13. Force Majeure. 

In no event will either party be liable to the other party, or deemed to have defaulted under or breached this Agreement, or any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payment), when and to the extent that such failure or delay  is caused by events beyond its control, including, without limitation, any act of God, natural disaster, riot, legal action, the other party’s hardware/equipment breakdown or failure, the other party’s non-HR Acuity software failure, internet failure, entry of data in unusable formats by Client or third party acting on behalf of Client, or present or future law, governmental order, rule or regulation (“Force Majeure Event”).  To the extent any such condition remains in effect for a period of over forty-five (45) consecutive days, the non-affected party shall have the right to terminate this Agreement. 

14. Insurance. 

HR Acuity shall maintain herein (a) commercial insurance coverage with limits of not less than $2,000,000 per claim or occurrence and a general aggregate of $4,000,000; (b) umbrella liability insurance of not less than $3,000,000 per claim or occurrence and not less than $3,000,000 in the aggregate; and (c) combined Professional and Cyber Liability insurance coverage with a minimum policy limit of $5,000,000 per claim or occurrence and not less than $10,000,000 in the aggregate. 

15. Affiliates.

Client’s parent, affiliate, subsidiary, or successor to its business (each, an “Affiliate”) may execute Order Forms with HR Acuity referencing this Agreement, but the Order Form will form a separate contract between the Affiliate and HR Acuity and incorporate all of the terms of this Agreement by reference. For purposes of such Order Form, the term “Client” in this Agreement will refer to Client or the Client’s Affiliate executing the Order Form. 

16. Other Terms. 

a. Entire Agreement. 

This Agreement, the Order Forms, and all schedules and exhibits hereto are incorporated herein by reference and constitute the entire agreement between the parties, and may not be modified or amended except in writing signed by both parties. This Agreement supersedes all prior and contemporaneous representations, agreements, understandings, and commitments between the parties concerning the subject matter of this Agreement. 

b. Amendment and Modification; Waiver. 

Any amendment or modification of this Agreement shall be effective only if it is in writing and signed by both parties. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Waiver by either party of any breach of any provision of this Agreement shall not be deemed a continuing waiver and shall not affect any subsequent breach of the same or different provisions of this Agreement. No failure or delay in enforcing this Agreement shall constitute a waiver of either party’s right to enforce this Agreement. 

c. Subcontractors. 

HR Acuity reserves the right to engage third parties to perform Services under this Agreement.  Client may, at any time during the Term, request a list of HR Acuity’s subcontractors that have access to Client Data or Client’s Confidential Information.  

d. Assignment. 

Client agrees not to transfer, assign, or delegate the Agreement or any rights or obligations hereunder without HR Acuity’s prior written consent. Any attempt to transfer, assign or delegate the Agreement or any rights or obligations without express written consent shall render the Agreement voidable at HR Acuity’s option. The foregoing shall not apply to an assignment to a subsidiary, parent, or any successor entity in the event that Client shall change its corporate name, merge, or consolidate with another company. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns. 

e. Relationship of the Parties. 

The relationship of the parties is that of an independent contractor. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 

f. No Third-Party Beneficiaries. 

This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. 

g. Applicable Law; Venue.

This Agreement shall be construed, interpreted and governed by the laws of the State of New Jersey, USA, without regard to the conflicts of law provisions thereof. Any action or proceeding by either party to enforce this Agreement shall be brought in any state or federal court located in the State of New Jersey, Morris County. The parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.  

h. Severability. 

If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the remaining provisions of this Agreement. The parties hereby jointly request that any such provision be construed by modifying its scope so as to be enforceable to the fullest extent of the law. 

i. Equitable Relief. 

Without limiting the remedies available to the parties hereunder, the parties acknowledge that a breach of this Agreement may result in material damage and irreparable injury for which there is no adequate remedy at law, and that it may not be possible to measure damages for such injuries with reasonable certainty. Either party shall be entitled to seek a temporary restraining order and/or preliminary injunction restraining the other from engaging in activities prohibited by this Agreement, or other such relief as may be required to specifically enforce this Agreement without the requirement of posting a bond.  

j. Dispute Resolution. 

In the event of a claim, dispute, or other matter in question between HR Acuity and Client arising out of or relating to this Agreement, by written notice to the other, the parties may seek to resolve such claim or dispute by way of a meeting between the principals of both HR Acuity and Client within ten (10) days of receipt of such written notice or such longer period of time as mutually agreed to in writing by the parties. HR Acuity and Client shall in good faith attempt to resolve such claim or dispute within thirty (30) days. If a principal of either HR Acuity or Client declares an impasse between the parties with regard to such claim or dispute, either party may proceed to litigation. This Section 17j shall be specifically enforceable. Notwithstanding the foregoing, this Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or a preliminary injunction in circumstances in which such relief is appropriate.  

k. Attorneys’ Fees. 

In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover reasonable attorneys’ fees and court costs from the non-prevailing party. 

l. WAIVER OF JURY TRIAL. 

Each party irrevocably and unconditionally waives any right it may have to trial by jury in respect of any legal action arising out of or relating to this Agreement.

m. Use of Name. 

Client grants to HR Acuity the right to identify Client in HR Acuity’s published list of customers and in its marketing materials. If requested by Client, HR Acuity will follow guidelines prescribed by Client in using Client’s name, trademarks, or logos, as applicable.

n. Notices. 

All notices under this Agreement shall be in writing and shall be deemed to have been duly given (i) on the date of service, if personally served; (ii) upon receipt if sent by express overnight air courier guaranteeing next day delivery with written evidence of delivery; (iii) upon receipt if mailed by registered or certified mail, return receipt requested, postage prepaid; or (iv) if by email, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent ater the addressee’s normal business hours. Notices shall be addressed as follows: 

If to HR Acuity:  The address listed on the Order Form with a copy to legal@hracuity.com. 

If to Client:  The address listed on the Order Form. 

o. Headings. 

The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

p. Agreement Execution. 

This Agreement may be executed in one or more counterparts, which counterparts together constitute one agreement.