Last Updated: December 16, 2024

Terms and Conditions

This Master Services Agreement (“Agreement”), effective as of the Effective Date stated on the initial Order (the “Effective Date”), is between HR Acuity, LLC, a Delaware limited liability company with its address at 23 Vreeland Road, Suite 220, Florham Park, NJ 07932 (“HR Acuity”) and the Client identified on the applicable Order (“Client“).  Each Order is subject to the terms and conditions of this Agreement. 

1. Definitions. 

Capitalized terms used in this Agreement are defined in this Section or in the Section where they are first used. 

1. “Affiliate” means, with respect to any entity, any other present or future entity, controlling, controlled by, or under common control with such entity. For the purposes of this definition, control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of the power to solely direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract, or otherwise. 
2. “Aggregate Data” means data derived from Client Data and/or Client’s use of the Platform that has been anonymized and de-identified to such an extent that it does not contain any Personal Data that can be identified, directly or indirectly, from such data in combination from other information from other sources, including publicly available sources.  For clarity, Aggregate Data is neither Personal Data nor Client Data.  
3. “Authorized Purposes” means the purposes the Platform may be used for, which includes documenting employee relations matters, conducting employee relations investigations, and such other purposes as may be expressly permitted in the applicable Order(s) and/or Documentation. 
4. “Authorized User” means a director, officer, employee, subcontractor, agent, or advisor of Client or its Affiliate who has been issued valid user identification credentials by Client. 
5. “Benchmarking” means HR Acuity’s proprietary benchmark information that is derived from Aggregate Data and made available via the Platform.  
6. “Client Data” means the data electronically transferred to HR Acuity by Client, manually or via third-party systems, for use with the Platform.  Client Data includes, but is not limited to, Personal Data. 
7. “Data Processing Agreement” means the Data Processing Agreement executed between HR Acuity and Client pertaining to the Processing of Personal Data under the Agreement, if any. 
8. “Data Protection Law” means applicable legislation protecting the right to privacy of natural persons that is applicable to the Processing of Personal Data under the Agreement, but excluding industry-specific laws, regulations or security standards. 
9. “Documentation” means administrative and user manuals for the Platform made available to Client by HR Acuity, which may be updated from time to time by HR Acuity, excluding any sales and marketing materials and user forums. 
10. “Information Security Policy” means the Information Security Policy available at HR Acuity’s website, accessible at https://resources.hracuity.com/infosecdocs, which may be updated from time to time. 
11. “Intellectual Property Rights” means all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and all similar rights. 
12. “Order” means an ordering document executed by the parties that incorporates an express reference to this Agreement setting forth the quantity of employees that may be managed in the Platform or Authorized User accounts purchased, as applicable, the term of the Order, pricing, payment terms, and fees to be paid by Client. 
13. “Personal Data” means any information that is subject to applicable Data Protection Laws and relates to an identified or identifiable natural person (data subject, consumer or household); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. 
14. “Platform” means those certain software-as-a-service offerings identified in the applicable Order. 
15. “Privacy Policy” means the Privacy Policy available at HR Acuity’s website, accessible at https://www.hracuity.com/privacypolicy, which may be updated from time to time. 
16. “Process” means (and its variants “Processes” and “Processing”) any operation or set of operations performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. 
17. “Professional Services” means those certain implementation, training, and other professional service offerings identified in the applicable Order. 
18. “Services” means the Platform, Support Services, and Professional Services. 
19. “Statement of Work” or “SOW” means a document attached to an Order detailing the scope of Professional Services to be provided by HR Acuity and other applicable terms. 

2. Platform and Services.

1. Platform.  Subject to the terms of this Agreement, HR Acuity will make the Platform available to Client and its Authorized Users on a non-exclusive and non-transferable basis.  Nothing in this Agreement obligates HR Acuity to deliver or make available to Client any copies of computer programs or any of the software used to provide the Platform, whether in object code or source code form.   
2. Affiliate Participation and Usage.  A Client Affiliate may access the Services subject to the following terms: 
   1. Client’s Affiliate(s) may execute an Order with HR Acuity referencing this Agreement, but in such case, the Order will form a separate contract between the Affiliate and HR Acuity and incorporate all the terms of this Agreement by reference; or 
   2. Client may assign Authorized User accounts to Affiliate(s) under an Order provided, however, that in such case, Client represents that Client has authority to bind such Affiliate to the terms and conditions of this Agreement and all relevant metrics of Affiliate, including active employee count and Authorized User count, shall be aggregated for purposes of calculating Client’s fees.  In such case, Client shall be jointly and severally liable for any obligations of any participating Affiliate. 

3. Maintenance and Support; Service Levels.  HR Acuity will be responsible for: (i) hosting, operating, maintaining, and supporting the Platform; (ii) providing Support Services; and (iii) making available and implementing upgrades, enhancements, and error corrections when such upgrades, enhancements, and error corrections are generally made available.  HR Acuity’s provision of the Platform and Support Services will make commercially reasonable efforts to maintain industry standard service levels.  

4. Professional Services.  HR Acuity shall perform the Professional Services listed in the Order in accordance with the applicable Statement of Work.  Client acknowledges that HR Acuity’s performance of Professional Services is dependent upon Client’s timely and effective satisfaction of requirements set forth in such Statement of Work.   

5. Benchmarking.  The Platform includes the Benchmarking functionality identified in the applicable Order.  Benchmarking is proprietary to HR Acuity. By participating in Benchmarking, Client authorizes HR Acuity to include Client Data when compiling the Aggregate Data that informs Benchmarking.  

6. Usage Data.  The Platform tracks usage data and statistics regarding Client’s and its Authorized Users’ use of the Platform.  HR Acuity may use such data as Aggregate Data for the purpose of improving the Platform. 

3. Access and Usage.   

1. Access and Usage Rights and Requirements.  Client’s use of the Platform is for its internal business purposes only, solely for the Authorized Purposes.  Client is responsible for (i) procuring and maintaining the internet access, web browser, software, and equipment necessary to connect Client’s network to the internet; (ii) maintaining the confidentiality of log-in credentials assigned to its Authorized Users; (iii) any and all activities that occur under any Authorized User account; and (iv) compliance of its Authorized Users with the terms of this Agreement. Client agrees to promptly notify HR Acuity of any unauthorized use of Authorized User credentials of which Client becomes aware. 

2. Access and Usage Restrictions.  Client and its Authorized Users may not, and may not cause or permit others to: (i) make the Platform available to any third party other than an Authorized User; (ii) attempt to decipher, decompile, delete, alter or reverse engineer any Platform code; (iii) alter, modify or adapt any component of the Platform, including without limitation, translating or creating derivative works; (iv) introduce into or transmit through the Platform any virus, worm, trap door, back door, or other harmful or malicious code, files, scripts, agents, or programs; (v) transmit via or store material in the Platform that infringes the Intellectual Property rights of any third party; (vi) except with the express prior authorization of HR Acuity and under supervision by HR Acuity, use any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the Platform; (vii) make any component of the Platform available by loan, rental, service bureau, external time sharing or similar arrangement; (viii) access or use the Platform for the purpose of developing a competing product; or (ix) use the Platform for any purpose other than the Authorized Purposes. 

3. Suspension of Access. HR Acuity may suspend Client’s or any Authorized User’s access to the Platform if HR Acuity reasonably and in good faith believes Client or any Authorized User has violated Section 3.2 above. HR Acuity will use commercially reasonable efforts to notify Client prior to any such suspension, provided, however, that no such notice is required if HR Acuity reasonably believes that: (i) it is prohibited from providing notice under applicable law or under legal process; or (ii) an immediate suspension is necessary in order to prevent imminent harm to the Platform, HR Acuity, or a third party. Under circumstances where HR Acuity has not provided prior notice, HR Acuity will provide notice as soon as commercially practicable after such suspension. 

4. Data Control and Processing. To use the Platform, Client must transfer Client Data to HR Acuity for Processing. By submitting Client Data to the Platform, Client hereby grants to HR Acuity the right, and is expressly instructing HR Acuity to Process Client Data for the purpose of providing and supporting the Platform as described in the Documentation, this Agreement, and the Data Processing Addendum, if any.  Client determines and controls in its sole discretion the selection of Client Data for transfer to HR Acuity. Client is solely responsible for (i) the quality, accuracy, and completeness of the Client Data; (ii) ensuring that Client has the necessary rights to transmit or upload such Client Data, including under applicable Data Protection Laws; and (iii) only submitting such Client Data as Client’s Authorized Users determine, in their reasonable judgment, is necessary and or useful to use the Platform for the Authorized Purposes. 

5. 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 Platform, including but not limited to employment actions taken by Client. Client acknowledges that the Platform is not, and is not intended to be, a substitute or alternative to legal advice. 

4. Fees. 

1. Fees.  Upon execution of an Order, Client commits to pay all fees and charges in the Order for the entire term of the Order. All fees are payable in accordance with the payment terms specified in the applicable Order. All fees are non-cancelable and non-refundable except as expressly provided in the Agreement or as otherwise required by law. To the extent that Client disputes any amount due hereunder, Client shall provide written notice of such dispute prior to the date that such amount is due and payable.  Except for amounts that are under good faith dispute by Client and for which Client has provided prior written notice, invoiced amounts that are unpaid and outstanding for more than thirty (30) days after such amounts are due and payable 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. 

2. 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. 

3. Nonpayment.  In the event that any undisputed amount is more than thirty (30) days past-due, HR Acuity may, in its sole discretion, upon thirty (30) days’ prior written notice to Client, suspend Client’s access to the Platform, and suspend any Services otherwise to be provided by HR Acuity to Client, until such payment delinquency has been remedied in full. 

5. Term and Termination. 

1. Agreement Term.  The Agreement shall commence on the Effective Date and continue until all Orders have expired or are otherwise terminated in accordance with the Agreement. 

2. Termination for Cause.  A party may terminate this Agreement or a particular Order for cause: (i) immediately if the other party has failed to cure a material breach of this Agreement within thirty (30) days of receiving written notice of such 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.   

3. Effects of Termination.  Upon any expiration or termination of this Agreement, all corresponding rights, obligations, and licenses of the parties shall cease, except that any obligations that should by their nature survive expiration or termination of the Agreement will survive.  Termination of the Agreement immediately terminates all Orders. In the event Client terminates an Order (including by termination of the Agreement) for cause pursuant to Section 5.2, Client shall receive a pro-rata refund of the pre-paid fees corresponding to the terminated portion of the affected term and shall be relieved of any further payment obligations. In the event HR Acuity terminates an Order (including by termination of the Agreement) for cause pursuant to Section 5.2, the payment obligation for all fees and charges corresponding to the terminated portion of the affected term shall accelerate and become due and payable immediately.  HR Acuity shall, within thirty (30) days after receiving final payment, provide Client with a file containing a copy of all Client Data, in a common and useable format, stored in HR Acuity’s computer memory or other storage device as of the date of termination or expiration and permanently delete all copies of Client Data from HR Acuity’s computer memory or other storage devices.  HR Acuity shall, upon request of Client, provide a certificate of destruction. 

6. Confidentiality. 

1. Definition of Confidential Information.  As used herein, “Confidential Information” means all business or technical information of disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), regardless of its form, that is designated as “confidential” or “proprietary” or that the Receiving Party knows or reasonably should know is confidential or proprietary to the Disclosing Party. Confidential Information of Client includes Client Data and Personal Data; Confidential Information of HR Acuity includes the Platform and any technical or performance information about the Platform; and Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, business processes, and the terms of this Agreement and all Orders.  Confidential Information does not include information that:  (i) was or becomes generally known to the public through no fault or breach of the Agreement by the Receiving Party; (ii) was rightfully in the Receiving Party’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Receiving Party from a third party not under a duty of confidentiality and without restriction on use or disclosure. 

2. Nondisclosure and Restricted Use. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall: (i) use the same degree of care to protect Confidential Information that it uses to protect the confidentiality of its own confidential information of a similar nature (but in no event less than a reasonable degree of care), (ii) not disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) only disclose Confidential Information to those of its employees, contractors and agents on a need-to-know and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  The Receiving Party shall provide prompt notification to the Disclosing Party of any unauthorized access to or disclosure of Confidential Information. 

3. Compelled Disclosure. 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 6. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.3, 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. 

4. Remedies. The parties acknowledge that any actual or threatened breach of this Section 6 may cause irreparable harm to the Disclosing Party. Upon any actual or threatened breach of a party’s confidentiality obligations hereunder, the Disclosing Party shall be entitled to seek appropriate equitable or injunctive relief in addition to whatever remedies it may have at law. 

7. Data Security and Privacy.   

1. Information Security Policy.  HR Acuity will protect the security and integrity of all Client Data in accordance with its Information Security Policy, which may be updated from time to time provided, however, that no such updates shall result in safeguards less protective of Client Data.  Such Information Security Policy describes, at a minimum, (i) HR Acuity’s administrative, technical, and physical safeguards to protect Client Data from any unauthorized disclosure and (ii) sets forth HR Acuity’s procedures for addressing any such unauthorized disclosure of Client Data, including notice, investigation, and remediation requirements.  HR Acuity shall provide prior written notice to Client of any material changes to its Information Security Policy.   

2. Personal Data.  With respect to all Personal Data transmitted by Client via the Platform, HR Acuity shall comply with (i) all applicable Data Privacy Laws; and (ii) the terms of the Data Processing Agreement between the parties, if any.  Additional information regarding HR Acuity’s compliance with Data Privacy Laws is set forth in the Privacy Policy. 

3. Security Reviews and Questionnaires.  Client may request security reviews or questionnaires to be completed by HR Acuity no more than once every twelve (12) months at no additional cost. Any additional reviews or questionnaires shall be subject to the Professional Service fees set forth in the applicable Order. 

4. Independent Security Assessments.  HR Acuity conducts regular assessment and penetration testing of the Platform to mitigate security risks. To perform independent testing, Client must request authorization, with a minimum of ten (10) days’ written notice, using this form. HR Acuity reserves the right to limit the testing timeframe or frequency and prohibit certain forms of testing. 

8. Intellectual Property Rights. 

1. HR Acuity Rights.  The Services and Documentation are provided with a limited right of access and use.  HR Acuity reserves and retains all rights not expressly granted in this Agreement.  As between the parties, HR Acuity owns and shall retain all right, title, and interest, including all Intellectual Property Rights in and to (i) the Services and Documentation and (ii) Benchmarking.  There will be no “work for hire” created in connection with the Services nor will any deliverables be owned by Client. 

2. Client Data.  As between the parties, Client owns and shall retain all right, title, and interest, including all Intellectual Property Rights in and to the Client Data. 

3. Feedback.  Client or its Authorized Users may voluntarily provide HR Acuity with suggestions, enhancement requests, recommendations, comments, or other feedback regarding the Services (collectively, “Feedback”), including via surveys made available to Authorized Users in the Platform.  Client agrees that HR Acuity shall own all such Feedback, and HR Acuity has the right, but not the obligation, to freely use, reproduce, license, distribute, or otherwise commercially exploit such Feedback, and Client hereby assigns all rights in such Feedback to HR Acuity. 

4. Publicity Rights.  Neither party may use the other party’s name or logos without the other party’s prior written consent; except that, during the applicable term, HR Acuity shall have the right to describe Client as a Client, to include Client’s name in Client lists, and to use Client’s name and logos to identify Client as a Client in proposals and presentations to prospective clients, partners, and investors and on its website.  If requested by Client, HR Acuity will follow guidelines prescribed by Client in using Client’s name or logos, as applicable. 

9. Indemnification. 

1. HR Acuity Indemnities.  HR Acuity will indemnify, defend, and hold harmless Client and its officers, directors, employees and agents from and against all third party claims, demands, suits, causes of action, awards, judgments and liabilities, including reasonable attorneys’ fees and costs arising out of: (i) any allegation that Client’s use of the Services in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party; and (ii) HR Acuity’s gross negligence, willful misconduct, fraud, or violation of applicable law. 

2. Client Indemnities.  Client will indemnify, defend, and hold harmless HR Acuity and its officers, directors, employees and agents from and against all third party claims, demands, suits, causes of action, awards, judgments and liabilities, including reasonable attorneys’ fees and costs arising out of: (i) Client’s use of the Platform in violation of Section 3.2; and (ii) employment actions or decisions made or taken by Client based on Client’s use of the Platform. 

3. 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 the defense of such action, 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. 

10. Warranties; Disclaimers. 

1. General Warranties. Each party represents and warrants to the other that: (i) it has the full power and authority to enter into and perform the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and (ii) it will comply with all laws applicable to the performance of its obligations hereunder. 

2. HR Acuity Warranties. HR Acuity represents and warrants that: (i) the Platform (a) shall perform materially in accordance with the Documentation, (b) will be free of viruses, trojan horses, worms, time bombs and other malicious programming routines designed to disable, damage, erase or corrupt software, hardware or data, and (c) will not be materially degraded; and (ii) the Professional Services provided hereunder will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. 

3. Client Warranties.  Client represents and warrants to HR Acuity that Client owns all rights, title, and interest in and to Client Data including Personal Data, or that Client has otherwise secured all necessary rights, consents, and permissions in the Client Data as shall be required to permit HR Acuity to perform the Services contemplated under this Agreement. 

4. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION (AS PERMITTED BY LAW), MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, TIMELINESS, QUALITY, ACCURACY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  CLIENT’S DECISIONS BASED ON THE SERVICES ARE ENTIRELY CLIENT’S OWN AND HR ACUITY ASSUMES NO RESPONSIBILITY FOR THE CONSEQUENCES RESULTING FROM CLIENT’S USE OF THE SERVICES.  HR ACUITY DOES NOT WARRANT THAT THE PLATFORM WILL BE COMPLETELY ERROR-FREE OR OPERATE UNINTERRUPTED.  HR ACUITY ASSUMES NO RESPONSIBILITY FOR THE RELIABILITY OR PERFORMANCE OF ANY APPLICATION PROGRAMMING INTERFACE PROVIDED BY CLIENT OR ANY THIRD PARTY. 

11. Limitations of Liability. 

1. Exclusion of Damages.  EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), 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. 

2. Cap on Monetary Liability.  EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL CHARGES PAID BY CLIENT TO HR ACUITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE LAST EVENT GIVING RISE TO LIABILITY. 

3. Excluded Claims. “Excluded Claims” means: (i) either party’s indemnification obligations under Section 9; (ii) damages resulting from a party’s gross negligence, willful misconduct, or fraud; or (iii) Client’s payment obligations. 

12. Insurance. 

HR Acuity shall maintain, at all times during the term, the following insurance coverage:  (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. 

13. Force Majeure. 

Neither party shall be responsible for any delay or failure in performance resulting from acts beyond its reasonable control to the extent that such acts could not have been prevented or avoided by the exercise of reasonable diligence by the affected party, including, without limitation, act of God, act of war or terrorism, riot, epidemic, fire, flood, or act of government (“Force Majeure Event”).  To avail itself of any claimed right under this Section 13, a party must provide written notice to the other party as soon as commercially practicable, with such notice specifying the Force Majeure Event and providing an explanation of why such Force Majeure should delay such party’s performance and the anticipated length of the delay, if known. Upon receipt of such written notice of a Force Majeure Event, all obligations under this Agreement shall be immediately suspended for as long as such Force Majeure Event continues and provided that the affected party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. If the period of nonperformance exceeds forty-five (45) days from the receipt of written notice of the Force Majeure Event, the party whose ability to perform has not been so affected may, by giving written notice, terminate this Agreement or affected Order.  In no event shall a termination under this Section 13 entitle Client to a refund of any prepaid fees. 

14. General Provisions. 

1. Entire Agreement and Order of Precedence. This Agreement, the Orders, and all schedules and exhibits hereto are incorporated herein by reference and constitute the entire agreement between the parties. This Agreement supersedes all prior and contemporaneous representations, agreements, understandings, and commitments between the parties concerning the subject matter of this Agreement.  In the event of any conflict between this Agreement and an Order, the terms of this Agreement shall control, except in those cases where this Agreement expressly states that the applicable terms may be modified in an Order, in which case the terms of the Order shall control. 

2. 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. 

3. Subcontractors.  HR Acuity reserves the right to subcontract part of the provision of the Platform or Services under this Agreement without Client’s prior consent.  Client may, at any time during the term of the Agreement, request a list of HR Acuity’s subcontractors that have access to Client Data or Client’s Confidential Information.  HR Acuity shall be responsible for the performance, acts, and omissions of its subcontractors. 

4. Assignment.  Neither party may assign any of its rights or obligations without the prior written consent of the other party, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign this Agreement, including all Orders, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided such transaction does not involve a direct competitor of the non-assigning party.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 

5. Relationship of the Parties. The relationship of the parties is that of independent contractors. 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. 

6. ‌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. 

7. Governing Law. The validity, interpretation and enforceability of the Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in New Castle County, Delaware; the parties irrevocably consent to the personal jurisdiction of such courts. 

8. 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. 

9. 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. 

10. 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. 

11. 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 14.11 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. 

12. 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. 

13. 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 after the addressee’s normal business hours. Notices shall be addressed as follows: 
    • If to HR Acuity:  The address listed on the Order with a copy to legal@hracuity.com; 
    • If to Client:  The address listed on the Order. 

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

15. Agreement Execution. This Agreement and any Order hereunder may be executed by the parties electronically and in one or more counterparts, which taken together shall form one legal instrument. 

IN WITNESS WHEREOF, Client and HR Acuity have caused this Agreement to be signed by their duly authorized representatives. 

Client:	HR ACUITY, LLC
Signature:	Signature:
Name:	Name:
Title:	Title:
Date:	Date: