These Terms and Conditions, together with the quote (“Quote”) by and between HR Acuity LLC (“HR Acuity”) and the entity executing the Quote (“Client”), constitute an agreement (collectively, “Agreement”). The Agreement is effective as of the date Client executes the Quote (“Effective Date”).
1.1 HR Acuity will provide professional services (“Services”) related to the HR Acuity On-Demand Software (the “Software”), subject to the terms of the Agreement.
1.2 HR Acuity will use commercially reasonable efforts to maintain availability of the Services 99.5% of the time, measured monthly, excluding holidays and weekends and scheduled maintenance. Any downtime resulting from outages of third party connections or utilities or other reasons beyond HR Acuity’s control will also be excluded from any such calculation.
1.3 HR Acuity will manage Software maintenance including the installation and download of required patches. During the term of the Agreement, (i) standard releases, bug fixes and updates are included at no additional cost, and (ii) Client will have access to HR Acuity’s online support center, as well as technical support via telephone and email.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client has access to the Software for the sole purpose of documenting employee relations issues, conducting investigations and facilitating post-hire and exit interviews. Nothing in this Agreement grants to Client any ownership right, title or interest in or to the Software including any software code, images, video, audio, or any other materials licensed or provided by HR Acuity hereunder, including any content or software provided on the HR Acuity website, as well as any and all associated intellectual property rights. Notwithstanding the foregoing, HR Acuity hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software, subject to the terms of the Agreement.
2.2 Client (including its employees and users) shall not: (i) publish, display, disclose, rent, lease, sell or otherwise transfer, modify, loan, distribute, or create derivative works based on the Software or any part thereof, or (ii) reverse engineer, decompile, translate, adapt, or disassemble the Software, or attempt to create the source code from the object code for the Software.
2.3 Client represents, covenants and warrants that Client will use the Software only in compliance with HR Acuity’s standard published terms and policies and all applicable laws and regulations. Client shall be responsible for maintaining (i) any equipment and ancillary services needed to connect to, access or otherwise use the Software (“Equipment”), and (ii) the security of the Equipment and Client’s passwords.
3. PAYMENT OF FEES
3.1 Client shall pay all fees shown on the Quote (“Fees”) in accordance with the payment terms set forth therein. Unless otherwise agreed in writing and signed by both parties, Client shall pay all invoices within thirty (30) days of the invoice date. Client is responsible for all taxes associated with Services other than U.S. taxes based on HR Acuity’s net income.
3.2 Payment frequency will be indicated on the Quote as Annually or Monthly. If Subscription Fee is paid an an Annually, payments to HR Acuity can be made by check or credit card. The Subscription Fee will be billed on an annual basis (“Annual Billing Period”) during the Term of the Subscription. Payment for the first Annual Billing Period and Implementation Fee will be invoiced upon execution of the Quote. If Annual Subscription Fee is to be paid Monthly, payments must be paid by credit card and will be billed on a monthly basis (“Monthly Billing Period”) during the Term of the Subscription. Payment for the first Monthly Billing Period and full Implementation Fee will be invoiced upon execution of the Quote. Subsequent Monthly Billing Periods will be automatically charged on the month anniversary of the Effective Date.
4.1 Client acknowledges that the Software, including the source code and object code of the Software, contains proprietary trade secrets of HR Acuity, and Client agrees to maintain the confidentiality of the Software using at least as great a degree of care as Client would use to maintain the confidentiality of Client’s own most confidential information.
4.2 HR Acuity agrees to maintain the confidentiality of the information Client imports into the Software (“Client Data”), using at least as great a degree of care as HR Acuity would use to maintain the confidentiality of its own most confidential information. HR Acuity may disclose Client Data to its employees, subcontractors or other third parties on a “need to know” basis, provided that such disclosure is limited to those parties who are bound in writing to maintain the confidentiality.
4.3 Client acknowledges that HR Acuity’s software is not intended to collect or receive 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”). Notwithstanding the foregoing, HR Acuity will nevertheless maintain the security and confidentiality of such Excluded Information in the same manner as all other Client Data under the Agreement; however HR Acuity shall not be liable for unauthorized disclosure or theft of such Excluded Information by Client or third parties.
5. WARRANTY AND DISCLAIMER
5.1 HR Acuity represents and warrants that: (i) all services will be performed to the best of its ability and in an effective, timely, professional and workmanlike manner in accordance with applicable industry standards and best practices, (ii) the Software and all services provided hereunder will comply with all applicable U.S. Federal or state laws, rules and regulations, and (iii) HR Acuity is the owner of or has obtained an appropriate license to provide to Client the Software and services hereunder and all portions thereof and that it has the right to grant Client the rights granted hereunder.
5.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE SOFTWARE IS PROVIDED “AS IS” AND 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 SOFTWARE WILL MEET ANY NEEDS THAT CLIENT MAY HAVE, OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM.
6. INDEMNITY AND LIABILITY
6.1 HR Acuity shall defend, indemnify and hold harmless Client from all losses, demands, liabilities, costs or expenses (including reasonable attorneys’ fees) incurred by Client arising of any third-party claim resulting from (i) actual infringement by the Software of any United States patent or any copyright or misappropriation of any trade secret; (ii) the gross negligence or willful misconduct of HR Acuity, its employees or agents; or (iii) HR Acuity’s material breach of the Agreement that is not cured in the time provided.
6.2 Client shall defend, indemnify and hold harmless HR Acuity, its members, managers, officers, directors, employees and/or agents from all losses, demands, liabilities, costs or expenses (including reasonable attorneys’ fees) incurred by HR Acuity arising of any third-party claim resulting from (i) Client’s use of the Software to perform employee investigations and other employee matters, and the consequences of all Client decisions relating thereto; (ii) the gross negligence or willful misconduct of Client, its employees or agents; or (iii) Client’s material breach of the Agreement that is not cured in the time provided.
6.3 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF SUCH DAMAGES. EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY UNDER THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY HR ACUITY HEREUNDER. NEITHER PARTY SHALL BE RESPONSIBLE FOR DELAYS OR LACK OF PERFORMANCE RESULTING FROM CAUSES BEYOND EITHER PARTY’S REASONABLE CONTROL, INCLUDING DELAYS AND NONPERFORMANCE CAUSED BY VIRUSES, THIRD-PARTY ACTS OR OMISSIONS (INCLUDING WITHOUT LIMITATION INTERNET SERVICE PROVIDERS, CLIENT OR CLIENT’S CONTRACTORS), FIRES, ACTS OF GOD OR TERRORISM.
7. TERM AND TERMINATION
7.1 The term of the Agreement (“Term”) will commence on the Effective Date and continue for the period set as the greater of what is set forth in the Quote or for one (1) year. Upon expiration of the Term, the Agreement shall automatically renew for additional one (1) year terms, unless either party provides written notice of nonrenewal to the other party no later than forty-five (45) days prior to expiration of the applicable one-year term.
7.2 Either party may terminate the Agreement for the other’s failure to cure any material breach of the Agreement within ten (10) days after delivery of written notice of such material breach. Upon termination of the Agreement, Client will cease all use of the Software and shall pay in full for the Services up to and including the last day on which the Services are provided. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8.1 Client acknowledges that HR Acuity may collect non-personally identifiable data on an aggregate basis (i.e., to be combined with other such data from other HR Acuity clients) regarding Client’s use of the Software for its own internal analysis. This analysis may be made available to third parties for benchmarking purposes.
8.2 The Agreement shall be construed, interpreted and governed by the laws of the State of New Jersey, USA, without regard to any conflict of laws principles, and any disputes arising out of the Agreement shall be brought in the state or federal courts sitting in or having jurisdiction over Union County, New Jersey.
8.3 If a provision of the Agreement is deemed unenforceable as written, such provision shall be interpreted so as to give it legal force, and all other provisions of the Agreement will remain in full effect.
8.4 Notices required or permitted by the Agreement will be deemed given five days after being mailed by certified or registered mail, return receipt requested, to the address of the party to which addressed set forth in the Quote.
8.5 The Agreement and all other agreements, constitute the entire agreement between the parties, and may not be modified or amended except in writing signed by both parties.