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THESE TERMS OF SERVICE (AS MAY BE UPDATED FROM TIME TO TIME AS SET FORTH HEREIN, THESE “TERMS OF SERVICE”) SHALL APPLY TO THE SERVICE AGREEMENT ORDER FORM (THE “ORDER FORM”) ENTERED INTO BY YOU (“CUSTOMER”) WITH HR CLOUD, INC., A DELAWARE CORPORATION (“HRC”), THAT REFERS TO THESE TERMS OF SERVICE. BEFORE YOU ENTER INTO THE ORDER FORM, CAREFULLY READ THESE TERMS OF SERVICE. BY EXECUTING THE ORDER FORM, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU SHOULD NOT EXECUTE THE ORDER FORM. CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE RESPECTIVE MEANINGS ASCRIBED TO THEM IN THE ORDER FORM. AS USED HEREIN, THE “AGREEMENT” MEANS THE ORDER FORM TOGETHER WITH THESE TERMS OF SERVICE, WHICH ARE INCORPORATED INTO THE ORDER FORM BY REFERENCE.

1. Provision of Online Services

  1. Services. Customer hereby engages HRC, and HRC hereby agrees (subject to the terms and conditions set forth in the Agreement), to provide the services described in these Terms of Service and in the Order Form (the “Services”). Customer hereby acknowledges and agrees that HRC’s provision and performance of the Services is dependent and conditioned upon Customer’s full performance of its duties, obligations and responsibilities hereunder.
  2. Modifications. HRC may periodically modify the features, components and functionality of the Services. HRC shall have no liability for, or any obligations to, investments in or modifications to Customer’s hardware, systems or other software which may be necessary to use or access the Services due to a modification of the Services provided by HRC.

2. Hosting - In connection with the provisions of the Services, HRC shall provide all required hosting and operations support for the Services provided through the Agreement.

3. Customer Responsibilities - In connection with the performance of the Agreement and the provision of the Services, Customer shall be responsible for the following:

  1. Compliance with Laws. Customer shall use the Services and shall perform Customer’s obligations hereunder in compliance with all applicable rules, regulations, laws, code and ordinances.
  2. Customer Data. Customer shall be solely responsible for (i) the accuracy and completeness of all records, databases, data and information provided, submitted or uploaded by Customer in connection with the Agreement or use of the Services (“Customer Data”) and (ii) making and keeping copies of all Customer Data. HRC will have no responsibility or liability for the accuracy of the Customer Data. HRC shall have no obligation to provide or make available to Customer, and Customer shall have no right to receive, a copy of the Customer Data or any associated data files in any format.
  3. Acceptable Use. Customer shall not use the Services except as expressly set forth in the Agreement and any other documentation provided by HRC related to the Services. Customer shall not, directly or through any person or entity, in any manner: (i) provide system passwords or other log-in information for the Services to any third party except those specifically authorized to access the Services in the Agreement; (ii) share non-public HRC system features or content with any third party; (iii) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Services or otherwise attempt to disrupt the Services; (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover or directly access the source code or any underlying ideas or algorithms of any portions of the Services or any underlying software or component thereof; (v) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Services except as expressly permitted by the Agreement; (vi) distribute, sell, transfer, encumber, sublicense, rent, loan, lend or lease the Services or any component thereof to any third party; (vii) circumvent any user limits or other timing, use or functionality restrictions built into the Services; (viii) remove any proprietary notices, labels, or marks from the Services or any intellectual property contained therein; or (ix) access the Services in order to (A) build a competitive product or service, (B) copy any ideas, features, functions or graphics of the Services, (C) develop, generate, transmit or store, information that: (I) is defamatory, harmful, abusive, obscene or hateful; (II) constitutes harassment or a violation of privacy or threatens other people or groups of people; or (III) violates any applicable law, ordinance, rule, regulation or treaty. In the event that HRC suspects any breach of the requirements provided in this Section 3(c), including by way of users of Customer’s system, HRC may suspend Customer’s access to the Services for the reasonable time required to confirm or deny suspicion, in addition to other lawful remedies as required.
  4. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer will notify HRC immediately of any known or suspected unauthorized use of the Services or breach of its security and will use best efforts to stop said breach.
  5. Customer Equipment. Other than the Services provided by HRC, Customer is responsible for all other services, equipment and facilities (including, without limitation, all hardware, telecommunications equipment, connectivity, cabling and software) required to access the Services.
  6. Integrations. Any integration with HRC consists of only integrations listed at https://support.hrcloud.com/en/help-center/integrations and is limited to the fields and functionality covered therein. The Customer, by agreeing to this Agreement, explicitly agrees the integration partners, fields, and functionality listed meet Customer expectations unless explicitly agreed upon by both HRC and Customer in a separate agreement addendum.

4. Ownership.

  1. Ownership. Customer acknowledges and agrees that HRC exclusively owns and at all times retains all right, title and interest in and to the Services, HRC’s products, system, any software (including any source code or object code) or documentation related thereto, any trademarks, service marks, logos and other distinctive brand features and intellectual property of HRC and all proprietary rights embodied therein (collectively, the “HRC Intellectual Property”). Customer further acknowledges that any feedback, ideas or suggestions made by Customer with regard to the HRC Intellectual Property are, and shall at all times be, the property of HRC, with all right, title and interest therein. Customer hereby assigns to HRC all right, title and interest that Customer may have in and to any such feedback, ideas, or suggestions, and in and to any related improvements or modifications to the HRC Intellectual Property. Customer shall not file any application for registration of any of the HRC Intellectual Property in any country and will not use or file any application for registration in any country of any mark, symbol or phrase, in any language, which is confusingly similar to any of the HRC Intellectual Property. Customer agrees not to contest, or assist any other person or entity to contest, the validity of HRC’s rights and interest in the HRC Intellectual Property, or any component thereof. Customer will not use any HRC Intellectual Property in any manner except as expressly authorized by HRC pursuant to, and in accordance with, these terms and any other documentation related to the Services.
  2. Reservation of Rights. The Agreement does not convey or transfer title or ownership of the HRC Intellectual Property to Customer or any of its users. Except as expressly set forth in Section 4(c), the Agreement does not grant Customer any licenses or other rights with respect to any of the HRC Intellectual Property. All rights not expressly granted herein are reserved by HRC.
  3. HRC License Grant. HRC’s approved logos and trademarks (the “Approved Marks”), including the “powered by” logo, will appear on the “employment opportunities”, “job description” and other HRC hosted pages. HRC hereby grants, during the Term (defined below) to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and reproduce the Approved Marks solely for purposes set forth in this Section 4(c). All uses of the Approved Marks shall conform to HRC’s standard guidelines and requirements for use of the Approved Marks.

5. Representations and Warranties.

  1. Authority. Each party represents and warrants to the other party that (i) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into the Agreement; and (ii) to its knowledge, the execution, delivery and performance of the Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
  2. Service Performance Warranty. HRC warrants that it will perform the Services in a manner consistent with industry standards reasonably applicable to the performance thereof.
  3. No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. HRC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HRC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
  4. Disclaimer of Actions Caused by and/or Under the Control of Third Parties. HRC DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE HRC SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH HRC WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, HRC CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, HRC DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

6. Publicity. During the Term, and unless otherwise agreed to by Customer and HRC in writing, HRC may disclose Customer’s name as a customer of HRC and Customer hereby grants HRC the right to display the Customer’s name and logo in HRC’s marketing materials and on HRC’s public website. All displays of Customer’s name and logo will be made in accordance with any branding guidelines provided in writing by Customer to HRC.

7. Confidentiality.

  1. Definition of Confidential Information. As used herein, “Confidential Information” means a party’s non-public or proprietary information, knowledge and data that relates to the actual or anticipated business, services, products and/or finances of the Disclosing Party (defined below), including, without limitation, methods, designs, ideas, techniques and processes, business strategies, customer lists, price lists, scientific and technical specifications and documentation and trade secrets, disclosed by, or obtained from, the Disclosing Party, either directly or indirectly, in writing, orally or visually, including, any information a reasonable person would understand to be confidential under the circumstances. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure, (ii) was or is lawfully received by the Receiving Party (defined below) from a third party who is not subject to an obligation of confidentiality with respect to such information, or (iii) was or is already known by or in the possession of the Receiving Party as shown by the Receiving Party’s written records. Without limiting the foregoing, the Confidential Information of HRC includes the terms of the Agreement, the Services and any documentation related thereto.
  2. Obligations. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) hereby acknowledges and agrees that all such Confidential Information shall be the sole and exclusive property of the Disclosing Party. During Term and thereafter, the Receiving Party shall: (i) not use the Confidential Information of the Disclosing Party except as permitted under the Agreement and (ii) not disclose or otherwise make available such Confidential Information to any third party, except as authorized herein and other than to such Receiving Party’s employees or independent contractors who (A) have a need to know such Confidential Information and (B) are subject to obligations of confidentiality with respect to such information as restrictive as those set forth herein (“Representatives”). The Receiving Party shall be responsible for any breach of the terms hereof by any of its Representatives.
  3. Mandatory Disclosure. In the event that the Receiving Party or any of its Representatives is requested or required by legal process to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall give prompt written notice to the Disclosing Party and the Disclosing Party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the Receiving Party shall disclose only that portion of such Confidential Information that its counsel advises that it is legally required to disclose.
  4. Injunctive Relief. The Receiving Party acknowledges that any unauthorized disclosure or use of the Disclosing Party’s Confidential Information will constitute a material breach of the Agreement and cause substantial harm to the Disclosing Party for which damages would not be a fully adequate remedy, and, therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, the Disclosing Party shall have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.
  5. Return of Confidential Information. Within thirty (30) days following the expiration or termination of the Agreement and/or upon written request of the Disclosing Party, the Receiving Party will return or destroy all Confidential Information of the Disclosing Party and related materials in the Receiving Party’s possession and discontinue all further use of such Confidential Information; provided that the Receiving Party shall not be required to purge any Confidential Information of the Disclosing Party from its electronic storage or communication systems; provided that, in such case, any Confidential Information retained continues to be held confidential and not used pursuant to, and in accordance with, the terms of the Agreement.

8. Indemnification.

  1. Indemnification. Customer will indemnify, defend and hold harmless HRC and its affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims (alleged or actual), damages, penalties, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and reasonable attorneys’ fees) (collectively, “Claims”) arising out of, or in any way related to, a third-party claim arising from or relating to (i) Customer’s breach of any of its representations, warranties, covenants or obligations contained herein, (ii) any of Customer’s products or any services, (iii) Customer’s combination of the Services or HRC Intellectual Property with other products or services not provided by HRC, and/or (iv) Customer’s violation of any other agreement or policy governing Customer’s use of the Services. Each Indemnified Party is intended by the parties to be a third-party beneficiary of the Agreement.
  2. Infringement Claim. If the Services become subject to any Claim alleging that Customer’s use of the Services in accordance with the Agreement infringes or violates a third party’s intellectual property rights (an “Infringement Claim”), HRC, at its sole option and expense, may: (i) obtain for Customer the right to utilize the Services; (ii) make the Services non-infringing without materially diminishing the utility to Customer of the Services; or (iii) if the foregoing actions in clauses (i) and (ii) are not reasonably available after having used commercially reasonable efforts to cause or obtain the same, terminate the Agreement upon thirty (30) days’ prior written notice to Customer and refund to Customer any Fees (defined below) paid prior to the termination which would relate to a period following the termination or to any period in which Customer was unable to use the pursuant to the Agreement. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THIS SECTION 8(b) STATES HRC’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES, WHETHER UNDER THEORY OF CONTRACT, WARRANTY, INDEMNITY OR OTHERWISE.
  3. Exclusions. Notwithstanding the foregoing, HRC shall have no liability or indemnification obligations to Customer for any Infringement Claim arising from (i) Customer’s breach of the Agreement or violation of any other agreement governing Customer’s use of the Services; (ii) continued use of the Services by Customer after HRC has notified Customer in writing of the Infringement Claim; (iii) any modification of the Services by anyone other than HRC; or (iv) the combination, operation or use of the Services with any products, processes, hardware, software or materials not provided or specified by HRC.
  4. Indemnification Process. The party claiming indemnification pursuant to this Section 8 (the “Indemnified Party”) must give the indemnifying Party (the “Indemnifying Party”) prompt notice of any such Claim (provided that any failure to do so shall not affect any Indemnified Party’s rights to indemnification hereunder except to the extent the Indemnifying Party is actually prejudiced by such failure). Promptly after receipt of such notice, the Indemnifying Party shall assume the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall have the right to undertake the defense, compromise and settlement of such Claim for the account and at the expense of the Indemnifying Party. Notwithstanding the foregoing, if the Indemnified Party in its sole judgment so elects, the Indemnified Party may also participate in the defense of such action by employing counsel at its expense, without waiving the Indemnifying Party’s obligation to indemnify and defend. The Indemnifying Party shall not compromise any Claim (or portions thereof) or consent to the entry of any judgment without the Indemnified Party’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed).

9. Liability Limitations.

  1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HRC HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON OR ENTITY ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S USE OR, OR INABILITY TO USE, THE SERVICES, UNDER ANY CIRCUMSTANCE, CAUSE OF ACTION OR THEORY OF LIABILITY, OR DUE TO ANY EVENT WHATSOEVER, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OPPORTUNITY OR PROFIT, LOSS OF USE, LOSS OF GOODWILL OR BUSINESS STOPPAGE, EVEN IF HRC KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
  2. WITHOUT LIMITATION OF SECTION 9(A), THE TOTAL LIABILITY OF HRC FOR ANY AND ALL CLAIMS AGAINST HRC UNDER THE AGREEMENT SHALL NOT EXCEED THE TOTAL FEES (DEFINED BELOW) PAID BY CUSTOMER TO HRC UNDER THE AGREEMENT DURING THE INITIAL TERM (DEFINED BELOW). THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THE AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE AGREEMENT AND HAS BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THE AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THE AGREEMENT.

10. Term and Termination.

  1. Term. The Agreement shall commence on the Effective Date and remain in effect for the initial term set forth on the Order Form, unless terminated earlier in accordance with the Agreement (the “Initial Term”). Thereafter, unless otherwise set forth on the Order Form, the Agreement shall automatically renew for successive twelve (12) month terms (each a “Renewal Term” and together with the Initial Term, collectively, the “Term”) unless a party delivers to the other party, at least thirty (30) days prior to the expiration of the Initial Term or the applicable Renewal Term, written notice of such party’s intention to not renew the Agreement, or unless terminated earlier in accordance with the Agreement.
  2. Termination by HRC. HRC may suspend the Services or terminate the Agreement immediately in the event of any of the following: (i) Customer fails to pay any amount then due under the Agreement and such failure is not cured within five (5) days following Customer’s receipt of HRC’s written notice thereof, (ii) Customer is in material breach of the Agreement and such breach is not cured within thirty (30) days following Customer’s receipt of HRC’s written notice thereof; (iii) the Services provided hereunder become illegal or contrary to any applicable law, rule, regulation, public policy; or (iv) Customer becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against Customer and not dismissed within one hundred eighty (180) days.
  3. Termination by Customer. Customer may terminate the Agreement immediately in the event of any of the following: (i) if HRC is in material breach of the Agreement and such breach is not cured within thirty (30) days following HRC’s receipt of Customer’s written notice thereof; or (ii) HRC becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against HRC and not dismissed within one hundred eighty (180) days.
  4. Effect of Termination. Upon expiration or any termination of the Agreement, Customer shall cease all use and refrain from all further use of the Services and other HRC Intellectual Property. Additionally, Customer shall be obligated to pay, as of the effective date of such expiration or termination, all amounts owing to HRC under the Agreement.
  5. Survival. Sections 3(a), 3(b), 3(c), 4(a), 4(b), 5, 7, 8, 9, 10(d), 10(e), 11(b), 12 through 15 shall survive the termination or expiration of the Agreement.

11. Payments.

  1. Payment Terms. Customer shall pay HRC the applicable fees set forth in the Order Form (collectively, the “Fees”) within the applicable time periods set forth in the Order Form. HRC may invoice all Fees due under the Agreement in one invoice for each invoice period. The parties agree that all invoices shall be delivered to the stated “Bill To” party on the Order Form.
  2. Taxes. Customer will pay all taxes, duties and levies imposed by all federal, state and local authorities (including, without limitation, export, sales, use, excise, and value-added taxes) based on the transactions or payments under the Agreement, except those taxes imposed or based on HRC’s net income or those exempt by applicable state law. Customer shall provide HRC with a certificate or other evidence of such exemption with ten (10) days of HRC’s request therefor.
  3. Fee Increases. HRC may, in its sole discretion, increase the Fees for any Renewal Term. HRC shall provide Customer with written notice of any such Fee increase at least thirty (30) days’ prior to the commencement of such Renewal Term.

12. Force Majeure. HRC shall not be liable for any damages, costs, expenses or other consequences incurred by Customer or by any other person or entity as a result of delay in or inability to deliver any Services due to circumstances or events beyond HRC’s reasonable control, including, without limitation: (i) acts of God; (ii) changes in or in the interpretation of any law, rule, regulation or ordinance; (iii) strikes, lockouts or other labor problems; (iv) transportation delays; (v) unavailability of supplies or materials; (vi) fire or explosion; (vii) riot, military action or usurped power; or (viii) actions or failures to act on the part of a governmental authority.

13. Data Security; Compliance with Laws. Customer acknowledges and agrees that use of the Services by Customer will cause Personal Information (defined below) to be transmitted to HRC’s servers and that HRC will further process such Personal Information for its business purposes. Customer shall inform each applicable employee or other party of such processing and shall adopt a privacy policy establishing the respective obligations of Customer when using the Services.

  1. Definitions. The following words and expressions have the following meanings in the Agreement:
    • “CCPA” means the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100-1798.199), and any related regulations or guidance provided by the California Attorney General. All terms defined in the CCPA, including Personal Information carry the same meaning in the Agreement.
    • “Contracted Business Purposes” means provision of the Services.
    • “Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or may reasonably be linked, directly or indirectly, with a particular consumer or household, including, without limitation, by reference to a name, signature, Social Security number, physical characteristics or description, address, telephone number, passport number, driver's license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information.
    • “Data Breach” means any Personal Information subject to an unauthorized access and exfiltration, theft, or disclosure as a result of a violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information.
    • “Data Protection Laws” means all applicable laws and regulations related to data protection, privacy and/or the processing of Personal Information to which either party, as applicable, is subject in connection with their processing of the Data, including the CCPA, and all applicable national legislation that implements, amends, transposes or provides for any derogations in respect of such laws.
    • “Subcontractor” means any third party appointed by or on behalf of HRC to process Personal Information in connection with the Agreement.
  2. Compliance with Laws; Amendments.
    1. Customer will only collect, use, retain, or disclose Personal information for the Contracted Business Purposes in accordance with the Customer’s stated privacy policy. Customer will limit Personal Information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose.
    2. Customer will provide a CCPA-compliant privacy policy. If a law requires Customer to disclose Personal Information for a purpose unrelated to the Contracted Business Purpose, Customer must first inform each applicable owner of such Personal Information of the legal requirement and provide an opportunity to object or challenge the requirement, unless the law prohibits such notice.
    3. At all times during the Term, HRC and Customer shall cause their performance of the Agreement to be compliant with all applicable data security and data privacy laws of all applicable Data Protection Laws. Customer will not collect, use, retain, disclose, sell, or otherwise make Personal Information available in a way that does not comply with the applicable Data Protection Laws. HRC and Customer acknowledge their expectation as of the Effective Date that the performance of the Agreement by HRC and Customer will not create any obligations of either party under either the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the EU General Data Protection Regulation 2016/679 (“GDPR”).
    4. Assistance with CCPA Obligations. HRC will reasonably cooperate and assist Customer with meeting its compliance obligations and responding to CCPA-related inquiries, including responding to verifiable requests, taking into account the nature of the HRC’s processing and the information available to the HRC. Customer must notify HRC immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party’s compliance with the CCPA. Specifically, Customer must notify HRC within three (3) calendar days if it receives a verifiable consumer request under the CCPA.
    5. The parties may, by agreement in writing from time to time, make reasonable amendments to this Section 13; provided, that, to the extent applicable, the parties shall also amend the Agreement as necessary to compensate HRC for additional costs in connection with implementing and performing the Services due to such amendments. Without limiting the foregoing: (A) if HRC’s or Customer’s performance of the Agreement changes such that HRC and/or Customer becomes or will imminently become subject to the GDPR, HRC and Customer shall as soon as practicable negotiate and execute an amendment to the Agreement contemplating the status of HRC as a processor (as defined in the GDPR) of the Personal Information of provided to HRC through Customer and Customer as a controller (as defined in the GDPR) of such Personal Information; and (B) if HRC’s or Customer’s performance of the Agreement changes such that HRC and/or Customer becomes or will imminently become subject to HIPAA, HRC and Customer shall as soon as practicable negotiate and execute an amendment to the Agreement establishing appropriate HIPAA compliance procedures.
  3. Data Security. Each of HRC and Customer shall, in relation to any Personal Information received by such party in connection with the performance of its obligations under the Agreement and this Section 13:
    1. ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Personal Information and against accidental loss or destruction of, or damage to, Personal Information, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Information, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Information can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
    2. ensure that all personnel who have access to and/or process Personal Information are obliged to keep the Personal Information confidential;
    3. not transfer any Personal Information unless appropriate consent has been obtained;
    4. cooperate with the other party hereto in responding to any request from a data subject and in ensuring compliance with its obligations under applicable law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    5. notify the other party hereto without undue delay on becoming aware of any Data Breach;
    6. at the written direction of the applicable consumer, delete or return Personal Information and copies thereof to the consumer to the extent required by applicable law; and
    7. maintain complete and accurate records and information to demonstrate its compliance with this Section 13(c).
  4. Restricted Transfers. No transfer of any Personal Information from consumer to HRC or from Customer to HRC shall involve the transfer of the Personal Information to any location outside the United States of America in the absence of an amendment to the Agreement establishing compliance with any applicable Data Protection Laws or the parties’ mutual written agreement that no such amendment is necessary. Without limiting the foregoing and for the avoidance of doubt, in the absence of any amendment to the Agreement pursuant to Section 13(b)(v) implementing GDPR-compliant, European Commission-approved standard contractual clauses, no transfer of any Personal Information from a consumer to HRC or from Customer to HRC shall involve the transfer of the Personal Information to any country in the EEA (as defined in the GDPR).
  5. Customer Acknowledgements. Customer acknowledges and agrees that HRC does not exercise any control over Customer’s specific human resource practices implemented using the Services or Customer’s decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Services. Customer further acknowledges and agrees that HRC does not have a direct relationship with Customer’s employees and that Customer is solely responsible for all contact, questions, Data updates and collection, with and from Customer’s employees. In addition, Customer is solely responsible for the privacy (including adopting and posting Customer’s own privacy policies governing Customer’s treatment of Customer’s employees’ Data), collection, use, retention and processing of Customer’s employees’ Data, and providing any and all notices and information to Customer’s employees regarding the foregoing, in compliance with all applicable laws (including all applicable Data Protection Laws). HRC hereby disclaims all liability arising from Customer’s decisions and from harmful data or code uploaded to the Services by Customer and/or Customer’s employees, contractors or agents. It is Customer’s sole responsibility to monitor Customer’s employees’ use and Customer’s use of the Services to ensure that such use complies with and is in accordance with the Agreement and applicable laws (including all applicable Data Protection Laws). In no event shall HRC be responsible or liable for Customer’s failure to comply with applicable laws (including all applicable Data Protection Laws) in connection with Customer’s use of the Services.
  6. HRC Privacy Policy. Customer acknowledges and agrees that Customer has read and hereby consents to the HRC Privacy Policy (the “HRC Privacy Policy”). The HRC Privacy Policy is incorporated herein by reference.

14. Electronic Signature Services.

  1. HRC may provide electronic signature services (the “Electronic Signature Services”) for two counterparties to electronically sign documents (including, but not limited to, agreements, policies, forms, etc.). If Customer uses the Electronic Signature Services, Customer acknowledges and agrees to the statements set forth in this Section 14. Whenever a document is signed using the Electronic Signature Services Customer affirmatively consents to using electronic signatures via the Electronic Signature Services and consents to conducting electronic business transactions. Customer also confirms that Customer is able to access the Electronic Signature Services and the document Customer is signing electronically.
  2. Customer is not required to use the Electronic Signature Services or accept electronic documents provided thereby. In the event that the Electronic Signature Services are not used, a non-electronic copy of the document may be signed manually as mutually agreed to by the counterparties to such document. HRC assumes no responsibility for providing such counterparties with a non-electronic version of the document.
  3. If a document has been signed using the Electronic Signature Services, HRC will provide the counterparties to such document the opportunity to download and print a paper copy of the document at no charge.
  4. When counterparties sign a document using the Electronic Signature Services, the rights and duties associated with that document are solely those of such counterparties. HRC is not a party to the document and carries no liability or responsibility with respect to the correctness, validity or enforcement of the document; nor does HRC have any liability or responsibility with respect to the legal or non-legal aspects of the document or any dispute arising as a result of the document. HRC’s sole responsibility is the Electronic Signature Services and customer service associated therewith.
  5. PLEASE NOTE THAT HRC’S STATEMENTS CONTAINED HEREIN OR ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE GENERAL IN NATURE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. HRC HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH THE ELECTRONIC SIGNATURE SERVICES ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU MAY SIGN ELECTRONICALLY USING THE ELECTRONIC SIGNATURE SERVICES.

15. Miscellaneous.

  1. Assignment. The Agreement may not be assigned by a party to any other person or entity without the express written approval of the other party, and any assignment in violation of this Section 15(a) shall be null and void. Notwithstanding the foregoing, either party may assign the Agreement without such consent to any person or entity that acquires all or substantially all of such party’s assets or equity interests, whether by way of purchase, merger, exchange or similar transaction; provided, that, in each case, such assignee assumes the assigning party’s obligations and liabilities hereunder.
  2. Governing Law. The Agreement will be governed by and interpreted, enforced and construed in accordance with the internal laws of the State of California without regard to conflict of law principles.
  3. Dispute Resolution. The parties agree that any dispute, conflict or controversy arising from or in connection with the Agreement shall be settled by arbitration to be entrusted to and administered by JAMS upon request of any of the parties in accordance with the JAMS Comprehensive Arbitration Rules & Procedures in effect at the time of the arbitration request (the “Rules”). The arbitration shall be conducted by an arbitration panel comprised of one (1) arbitrator appointed in accordance with the Rules. The arbitration shall take place in Los Angeles, California. The arbitrator’s decision and award will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereon. Notwithstanding anything contained herein to the contrary, either party hereto may seek equitable relief, including preliminary or permanent injunctive relief in any court of competent jurisdiction.
  4. Severability. If any provision of the Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. The parties further agree to negotiate in good faith a substitute, valid and enforceable provision that most nearly affects the parties’ intent and to be bound by the mutually agreed substitute provision.
  5. Remedies; No Waiver. All rights, remedies, obligations, covenants, conditions and agreements contained in the Agreement or provided by law shall be cumulative and no one of them shall be exclusive of any other. No waiver by any party, whether express or implied, of any provision of the Agreement, or of any breach or default thereof, will constitute a continuing waiver of that provision or of any other provision.
  6. Notices. Any notice, approval, request, authorization, direction or other communication under the Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date, if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a commercial overnight carrier, with written verification receipt; or (iii) five (5) days after the mailing date if sent by U.S. Mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available to the address of the party to whom the same is directed as set forth in the Order Form.
  7. Entire Agreement. The Order Form, these Terms of Service and the HRC Privacy Policy constitute the entire, final, complete and exclusive agreement between the parties and supersede all previous agreements or representations, oral or written, relating to the subject matter hereof. Except as otherwise expressly set forth herein, no modification or amendment of any terms of the Agreement shall be valid unless in a writing and signed by a duly authorized representative of each party; provided, however, that HRC may modify these Terms of Service and the HRC Privacy Policy at any time by posting a notice on the website where these Terms of Service and/or the HRC Privacy Policy are hosted or through notice given to Customer in the manner provided for in the Agreement. Customer’s continued use of the Services following any such notice constitutes Customer’s acceptance of these Terms of Service and/or the HRC Privacy Policy as so modified.
  8. Independent Contractors. The parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in the Agreement shall be interpreted as constituting either party the joint venturer, employee or partner of the other party or as conferring upon either party the power of authority to bind the other party in any transaction with third parties.
    1. Attorneys’ Fees. Should either party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of the Agreement, the prevailing party shall be entitled to recover from the losing party all reasonable attorneys’ fees and costs related to the Action.
    2. Third-Party Beneficiaries. The Agreement does not confer any third-party beneficiary rights upon any person or entity except as expressly set forth herein.