INSPERITY® ORGPLUS® SUBSCRIPTION AGREEMENT
THIS INSPERITY ORGPLUS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO BETWEEN INSPERITY PERFORMANCE AND ORGANIZATIONAL MANAGEMENT, A DIVISION OF INSPERITY BUSINESS SERVICES, L.P. (“INSPERITY”) AND THE NATURAL PERSON OR LEGAL ENTITY THAT IS PURCHASING SUBSCRIPTION SERVICES OFFERED ONLINE (“CUSTOMER”). IF CUSTOMER IS A LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE/SHE IS AN EMPLOYEE OR AGENT OF CUSTOMER AND IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON CUSTOMER’S BEHALF AND TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. WRITTEN APPROVAL IN A NON-ELECTRONIC FORMAT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. CUSTOMER FURTHER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. Certain Defined Terms. The following terms have the following meanings. Other terms are defined elsewhere in this Agreement.
a. “Authorized Users” means those employees of Customer and those independent contractors to Customer who use the Subscription Materials through Customer (with Customer’s authorization and consent) after being issued valid User IDs for the Subscription Materials.
b. “Delivery Order” means Customer’s order for Subscription Services, including any amendments or modifications to such order form, as accepted by Insperity.
c. “Subscription Services” means (i) OrgPlus RealTime or OrgPlus RealTime Express, as selected in Customer’s Delivery Order and as made available by Insperity through the Web Site, (ii) any other Insperity organizational planning software that Insperity makes available and provides to Customer under this Agreement, and (iii) any all associated updates, enhancements and content provided to Customer hereunder and associated with the foregoing; in each case solely in the form and format made available by Insperity to Customer hereunder. Notwithstanding anything else, no source code of any Insperity software is or shall be provided to Customer as part of the Subscription Services hereunder.
d. “Subscription Materials” means the Subscription Services, the Professional Services provided to Customer (including any and all associated deliverables and materials provided to Customer in connection with such Professional Services), and the associated Insperity then-designated user documentation (“Documentation“); provided that the term “Subscription Materials” shall not include any third party software, third party content or third party service other than Third Party Components, whether or not the third party software, third party content or third party service at issue accompanies, is provided with, is made available or is accessed through, or operates in conjunction with, the Subscription Services and/or any other Subscription Materials.
e. “Term” means that period of time determined in accordance with Section 8.a. below for which Customer has fully paid all Subscription Fees as identified by Insperity.
f. “Third Party Components” means software, interfaces and firmware from a third party that is incorporated as an integral part into any of the Subscription Services.
g. “User ID” means, with respect to any particular Authorized User, the user name, user identification and associated password through which such Authorized User is able to gain access to and use the Subscription Materials.
h. “Web Site” means any website designated by Insperity for Customer to access the Subscription Materials.
2. License; Limitations and Restrictions.
a. License. Subject to the other terms and conditions of this Agreement, Insperity grants Customer a limited, non-sublicensable, non-exclusive, non-transferable right and license, solely during the period for which Customer maintains hereunder a paid subscription to the Subscription Materials, to access and use the Subscription Materials, and to permit and have Authorized Users access and use the Subscription Materials, but only in accordance with the Documentation and this Agreement; provided that, with respect to Subscription Services licensed hereunder to Customer, Customer’s and its Authorized User’s access and use of the Subscription Services shall be initiated in each instance only through the login page of the Web Site. The Subscription Materials to which Customer is provided access (or which are furnished to Customer) under this Agreement are licensed, not sold, to Customer. No use of the Subscription Materials, other than expressly and unambiguously permitted by this Agreement, is permitted.
b. Subscription Basis Only. For the avoidance of doubt: (i) all licenses granted hereunder to the Subscription Materials (including any Subscription Services) are granted on a subscription basis solely during the period for which Customer maintains hereunder a paid subscription to the Subscription Materials; and (ii) upon any termination of the Term, all such licenses shall terminate and Customer and its Authorized Users shall have no further right to access or use any of the Subscription Materials. Additional effects of termination of this Agreement, and additional restrictions and limitations regarding the Subscription Materials, are set forth elsewhere in this Agreement.
c. Use for Internal Business Purposes Only; Web Access. Customer and its Authorized Users shall use the Subscription Materials solely for Customer’s own internal business purposes in the field of use of Customer’s ordinary business activities. Without limiting in any way the foregoing sentence, Customer shall not allow any third party (except Authorized Users and then only in compliance with the confidentiality and other provisions of this Agreement) to access, operate or otherwise use in any way the Subscription Materials. Customer understands that it and its Authorized Users will access the Web Site via the World Wide Web. Customer, and not Insperity, is solely responsible for obtaining and maintaining all computer hardware, telecommunications equipment, other electronic equipment, software and services (including Internet connectivity) necessary for accessing and using the Internet and the World Wide Web.
d. Customer Responsible for Authorized Users. Customer shall be responsible for the acts and omissions of each of the Authorized Users and each such act or omission shall be attributable to Customer as if done (or omitted to be done, in the case of an omission) directly by Customer. Further, Customer shall ensure that each Authorized User at all times fully complies with all terms and conditions in this Agreement (except those pertaining to the payment by Customer of fees and to indemnification by Customer of Insperity) to the fullest extent this Agreement applies to Customer or such Authorized User. Subject to the foregoing sentence, any non-compliance with any provision of this Agreement by any Authorized User shall constitute a breach of this Agreement by Customer.
e. Certain Restrictions and Limitations. Customer shall not (and shall not allow any other person to): (i) reverse engineer, translate, decompile or disassemble any portion of the Subscription Materials (or any products or processes accessible through the Web Site), or otherwise discover or duplicate any content, data, technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any of the Subscription Materials, or attempt to do any of the foregoing, except and only to the extent that this limitation is expressly prohibited by applicable law notwithstanding this limitation; (ii) rent, lease, license, sublicense, export, sell, resell, lend, commercialize, transfer, assign, distribute, grant a lien, encumbrance or option, or make available, to any third party, any of the Subscription Materials (or any of the intellectual property and proprietary rights therein) in any way, whether or not for payment or other consideration, or attempt to do any of the foregoing, except that Customer may permit Authorized Users to access and use the Subscription Materials as expressly authorized under Section 2 of this Agreement; (iii) without limiting in any way clause (ii) immediately preceding, use any of the Subscription Materials to provide, or to assist in or further the provision of, any remote processing, service bureau services or other commercial services to any third party; (iv) alter or modify in any way any of the Subscription Materials (including any source, object or other code thereof) or make any derivative work based in any way upon any of the Subscription Materials; (v) create Internet “links” to any of the Subscription Materials or the Web Site or “frame” or “mirror” any of the Subscription Materials on any device; (vi) use any device, software or routine to interfere or attempt to interfere with the proper working of any of the Subscription Materials; (vii) take any action that imposes an unreasonable or disproportionately large load on the Subscription Materials infrastructure; (viii) use any data mining, robot, spider, crawler, cancelbot, Trojan horse, or any data gathering or extraction method or manual process in connection with use of any of the Subscription Materials; (ix) remove, alter, add to, or obscure any copyright, trade secret, or trademark notice or any user notice, warning, disclaimer, consent or advisory pertaining to or included in any of the Subscription Materials; (x) delete or revise any material posted by any other person or entity without their prior written consent or proper authority; (xi) post, transmit or store any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable or harmful, or that infringes on Insperity’s or any third party’s intellectual property or other rights; (xii) post, transmit or store any personal or confidential information about individuals or entities without the authorization to do so; or (xiii) print out or otherwise copy or use any personally identifiable information about users for purposes other than as intended by this Agreement.
f. Third Party Content and Third Party Services. As part of the Subscription Services, third party content and/or third party services may be made available to Customer or its Authorized Users. Customer and its Authorized Users may also have access to links (either by way of hyperlinks, icons or bookmarks) to specific third party web sites. Customer acknowledges and agrees that, notwithstanding that Insperity may provide links to third party web sites and may make available third party services and/or third party content through the Subscription Materials, SUCH THIRD PARTY WEB SITES, THIRD PARTY SERVICES AND THIRD PARTY CONTENT ARE NOT UNDER THE CONTROL OF INSPERITY AND ARE IN NO WAY ENDORSED BY OR THE RESPONSIBILITY OF INSPERITY.
g. Third Party Software and Third Party Components. The Subscription Services may include Third Party Components, and other third party software may be provided in conjunction with the Subscription Services, in each case either when the Subscription Services is originally licensed hereunder or otherwise made available to Customer and its Authorized Users from time-to-time. The use of the Third Party Components (including any updates or upgrades thereto) and other third party software may be subject to separate or additional terms and conditions. These separate or additional terms and conditions, if any, will be made available as specified in Section 2.h below. All third party software, including all Third Party Components, is provided by Insperity “AS IS” with no express or implied conditions, endorsements, guarantees, representations or warranties. Any acquisition by Customer or any of its Authorized Users of third party software other than any Third Party Component, and any exchange of data between Customer and any third party provider, is solely between Customer and the applicable third party provider. No separate purchase of third party products or services is required to use the Subscription Services.
h. Additional License Terms for Subscription Materials. Notwithstanding anything else, separate and/or additional terms and conditions may apply with respect to the Subscription Services, including any Third Party Components included therein and Insperity’s Desktop software (if purchased separately). These separate and/or additional terms and conditions, if any, will be made available within click-through agreement(s) made available through the Subscription Services when using the Subscription Services for the first time or, in the case of third party software other than any Third Party Component, when Customer or its Authorized Users use or install such third party software for the first time. Such separate and/or additional terms and conditions shall be binding upon Customer, and shall govern in the event of any conflict with any other provisions of this Agreement except with respect to Section 2.b (Subscription Basis Only) above, which shall govern and control in the event of any conflict between it and any such separate or additional term or condition.
3. Professional Services.
a. Insperity Obligations. Insperity shall provide or arrange for the provision to Customer of the Professional Services, as agreed to by Insperity. As used herein, “Professional Services” means any technical, consultation or other professional services that Insperity agrees to provide (directly or indirectly through contractors) to Customer.
b. Customer Obligations. Customer shall perform its responsibilities in a professional and workmanlike manner, and, in addition to Customer’s other responsibilities under this Agreement, Customer shall cooperate with Insperity with respect to the Professional Services to the extent reasonably requested by Insperity or otherwise reasonably necessary for the provision to Customer of the Professional Services. In addition, Customer shall assign, and upon Insperity’s request, make available to Insperity, sufficient numbers of qualified Customer employees who are able to, and who work diligently and reasonably to, coordinate and fulfill performance of Customer’s responsibilities hereunder and facilitate performance by Insperity of the Professional Services. Insperity’s obligations with respect to the Professional Services at all times shall be subject to and conditioned upon Customer providing Insperity with all data and cooperation reasonably requested by Insperity or otherwise reasonably necessary for the provision to Customer of the Professional Services.
c. Rates for Professional Services. Any Professional Services provided shall be provided at the rates communicated by Insperity in writing or, if such rates are not so communicated, at Insperity’s then prevailing rates.
d. Remote Provision. Unless otherwise agreed by Insperity, none of the Professional Services will take place physically at any of Customer’s facilities, and all Professional Services shall be conducted either at Insperity’s facilities or via telephone, email or other form of electronic communication or connection as determined by Insperity.
a. User IDs and passwords. Customer shall comply with the procedures specified by Insperity from time to time regarding User IDs and passwords. Customer is solely responsible for maintaining the confidentiality of User IDs and passwords and restricting use of the Subscription Materials to only Customer and its Authorized Users. Without limiting the foregoing or any of its other obligations under this Agreement: (i) Customer at all times will be responsible for all use of the Subscription Materials accessed through any User ID; (ii) Customer will use its reasonable best efforts to prevent any third party from obtaining any User ID or password or using any User ID not assigned to such third party; and (iii) Customer will notify Insperity immediately of any actual or potential unauthorized access to or use of any such User ID or password, or access to or use of any of the Subscription Materials, of which Customer becomes aware.
b. User Content. Insperity has no obligation to monitor the Web Site or site-related services, including any forum, or any materials that Customer, its Authorized Users or other third parties transmit or post on to the Web Site. However, Customer acknowledges and agrees that Insperity has the right (but not the obligation) to monitor the Web Site and Web Site related services, and the materials Customer or its Authorized Users transmits or posts, to alter or remove any such materials (including any posting to the Web Site, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Web Site properly, to protect itself, its sponsors, its registered users and visitors, and to comply with legal obligations or governmental requests. Insperity reserves the right to refuse to post or to remove any information or materials, in whole or in part, that it deems in its sole discretion to be unacceptable, offensive or in violation of this Agreement. Insperity also reserves the right, in its sole discretion, to prohibit any Authorized User who violates the terms of this Agreement from using the Subscription Services and Professional Services. Such prohibition may occur without notice to Customer or the Authorized User.
c. Age of Users. Customer shall not register or attempt to register Authorized Users under the age of thirteen. Insperity acknowledges that Customer may register or attempt to register Authorized Users under the age of majority and that any click-through agreements are not enforceable against such Authorized Users. Customer agrees that it shall be directly responsible for the acts of any Authorized Users under the age of majority.
d. User Information. As part of the registration process, Authorized Users’ user name(s) will be established and each Authorized User will be asked to select a password. Insperity may refuse to allow Authorized Users to use a username that impersonates someone else, may be illegal, may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by Insperity in Insperity’s sole discretion. Customer will be responsible for the confidentiality and use of Customer’s and its Authorized Users’ password(s) and agrees not to distribute, transfer, resell use of or access to or otherwise make available the Subscription Services to any third party. If Customer believes that the Subscription Services or its specific account as an Authorized User of the Subscription Services is no longer secure, Customer must promptly contact Customer Support via designated e-mail address as instructed. CUSTOMER IS SOLELY AND ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF CUSTOMER’S AND ITS AUTHORIZED USERS’ USER NAME(S) AND PASSWORD(S) AND SOLELY AND ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH CUSTOMER’S ACCOUNT(S). CUSTOMER IS SOLELY AND ENTIRELY RESPONSIBLE AND LIABLE FOR ALL ACTIVITIES AND ACTIONS OF ITS AUTHORIZED USERS.
5. Customer Data.
a. Generally. During the Term of this Agreement, Insperity will store on its, or its designated third parties, servers any Customer Data which Customer or its Authorized Users input into the Subscription Services. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer owns all right, title and interest in and to all of its Customer Data, and, as between Insperity and Customer, such Customer Data shall be Customer’s Confidential Information. Insperity makes no warranty of any kind with respect to any of the Customer Data. ANY DATA STORAGE IS SUBJECT TO HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO CUSTOMER AND/OR CUSTOMER DATA, AND/OR CUSTOMER’S DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. INSPERITY SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, MANIPULATION, OMISSIONS, DELAYS, DAMAGES OR LOSSES.
b. Data Accessibility. Customer may, at any time during the Term, run reports or otherwise access the Customer Data from the Web Site. Customer understands and agrees, however, that Insperity’s obligations and Customer’s rights under this Section 5.b at all times shall be subject to application of all applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally. Customer further understands and agrees that Insperity may delete or erase any or all Customer Data at any time following the Term of this Agreement.
c. Monitoring of the Web Site. Insperity does not evaluate or censor the information posted to the Web Site and is not involved in the actual use of the Subscription Materials. Consequently, Insperity has no control over the quality, safety or legality of the information posted to the Web Site, or the truth or accuracy of such information.
d. Authentication. Because user authentication on the Internet is difficult, Insperity cannot and does not confirm that users are who they claim to be. Because Insperity does not and cannot be involved in user-to-user transactions or control the behavior of the Web Site’s users, in the event of a dispute with one or more Authorized Users, Customer releases Insperity (and its subsidiaries, suppliers, affiliates, agents, officers, directors and employees, both current and former) from all claims, demands and damages (actual and consequential, direct and indirect) of any kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. Customer assumes all risks related to its Authorized Users use with the Subscription Services.
e. Accuracy of Information. Customer acknowledges and agrees that Customer is solely responsible for the form, content and accuracy of any Customer Data and any information or material posted to the Web Site.
6. Payment Terms.
a. Subscription Fee Payment Terms. Customer shall pay to Insperity all Subscription Fees for the Subscription Materials prior to the use of any Subscription Materials. As used herein, “Subscription Fees” means the fees payable by Customer for the access and use of Subscription Materials and for certain related services provided hereunder. Subscription Fees shall be quoted and payable in US dollars, shall be based on the quantity of Subscription Services purchased and not actual usage, and payment obligations are non-cancelable and Subscription Fees paid are non-refundable, except as expressly provided otherwise in the Agreement or applicable Delivery Order. Monthly or quarterly Subscription Fees will be made by pre-payment for each applicable measuring period (i.e., month or quarter) and may be made using an authorized credit card or by electronic funds transfer (additional bank charges, transfer fees and all other related expenses are the responsibility of Customer). Yearly Subscription Fee payments will be invoiced in advanced and are due and payable within thirty (30) days of the date of invoice.
b. Professional Services Payment Terms. Professional Services shall be invoiced separately. Customer shall pay in full each invoice rendered by Insperity in accordance with this Agreement within the time period set forth in the invoice, or if no time period is specified, Customer shall pay such invoice in full within thirty (30) days after the date of such invoice.
c. General Payment Terms. Except as expressly provided otherwise in the Agreement, all payments shall be made by check, credit card (but only those then-currently accepted by Insperity), electronic funds transfer or other method of payment acceptable to Insperity. Notwithstanding the foregoing provisions or anything else in this Agreement, the failure by Insperity to invoice Customer for any particular amount owing by Customer shall not relieve Customer in any way of its obligation to pay such amount. Except as otherwise expressly provided in this Agreement, all amounts paid to Insperity are non-refundable. Unless otherwise mutually agreed by the parties in writing, all fees are expressed in U.S. dollars and all payments will be made in U.S. dollars.
d. Fee Adjustments. Subscription Fees may be adjusted by Insperity at any time by posting the new Subscription Fees to the Web Site or otherwise communicating such Subscription Fees to the Customer. Any adjustments to the Subscription Fees shall not apply to Subscription Fees already paid by the Customer.
e. Expenses. Customer shall pay or reimburse to Insperity all out-of-pocket expenses (including travel expenses) actually incurred by or on behalf of Insperity in performance of its obligations under this Agreement. Subject to those express limitations, Insperity will incur costs for Customer’s account in accordance with the same travel and expense policies then-applicable to Insperity’s reimbursement of Insperity personnel. Insperity’s general corporate overhead will not be considered to be an expense that is reimbursable by Customer hereunder.
f. Additional Products and Services. Notwithstanding anything herein to the contrary, if Customer requests and Insperity provides or arranges for any products or services outside the scope of those specified in this Agreement, Customer will pay Insperity for such additional products or services at Insperity’s then prevailing rates.
g. Audit. Customer shall maintain complete and accurate records relating to its obligations under this Agreement or to any amounts payable to Insperity in relation to this Agreement, which records shall contain sufficient information to permit Insperity to confirm Customer’s compliance with this Agreement. Customer shall retain such records throughout the Term and for at least two (2) years after termination of this Agreement, during which time Insperity, or Insperity-appointed auditors (which auditors shall be reasonably acceptable to Customer and shall agree to maintain the confidentiality of Customer information obtained by them in the course of their audit work), shall have the right, at Insperity’s expense, upon thirty (30) days’ prior written notice, no more frequently than one (1) time per calendar year, to inspect such records and Customer’s facilities during normal business hours to verify Customer’s compliance with this Agreement. Without limiting in any way the foregoing provisions of this paragraph, Insperity shall also have the right, at any time during and throughout the Term, to (i) without further notice to Customer, monitor and audit usage of the Subscription Materials for the purpose of determining compliance with this Agreement, and (ii) request via written notice that Customer certify its compliance with the Subscription Services restrictions and limitations in this Agreement; and Customer shall fully comply with each such request within thirty (30) days after receipt of the associated notice from Insperity.
h. Taxes. Customer shall pay all (or shall reimburse Insperity if Insperity pays any) taxes, customs, duties and assessments (exclusive of taxes based on the net income of Insperity), however designated, including excise, sales and use taxes now or hereafter imposed under the authority of any federal, state or local taxing jurisdiction with respect to this Agreement or any of the Subscription Materials or Professional Services provided hereunder. However, if Customer claims an exemption from any taxes, then (i) Customer shall provide to Insperity appropriate evidence of such exemption, prior to payment of such taxes, (ii) Insperity shall not charge or withhold tax from which Customer is exempt, and (iii) Customer shall be responsible for any taxes that should have been withheld and any associated penalties, and will promptly reimburse Insperity for any such amounts incurred by Insperity.
i. Suspension of Use; Late Charge; Costs of Collection. Without limiting any of Insperity’s other rights or remedies, if Customer is thirty (30) or more days past-due on any amount owing to Insperity, Insperity shall have the right to suspend Customer’s and its Authorized Users’ access to and use of the Subscription Materials and access to the Customer Data in Insperity’s possession or under its control, in each case until Customer pays in full the amount past-due. In addition, all amounts not paid when due are subject to a late payment charge of ten percent (10%) per annum simple interest (or, if less, the maximum rate allowed by applicable law) from the due date until the date of payment. Customer shall be responsible for all reasonable costs of collection, including reasonable attorney’s fees, that Insperity may incur with respect to unpaid amounts due and payable by Customer under this Agreement.
7. Availability, Maintenance and Support.
a. Availability. Insperity will use reasonable efforts to make the Subscription Services and the Documentation therefor, as licensed to Customer hereunder, available twenty four (24) hours per day, seven (7) days per week (except for scheduled maintenance downtime, as posted from time to time on the Web Site). Insperity will maintain the Subscription Materials as Insperity, in its sole discretion, deems necessary and advisable.
b. Errors. Insperity will promptly investigate any Error in any of the Subscription Services that is reported to Insperity via its telephone support number or email support address by any of the Support Contacts (either as initially designated to Insperity or any succeeding Support Contacts) and provide the following error correction services for Errors (as defined below):
For Critical Errors -Insperity will initiate work within one business day to verify the Error and diligently pursue an Error Correction. A “Critical Error ” is an Error that materially impairs substantial functions of the Subscription Services.
For Non Critical Errors -Insperity will use reasonable commercial efforts to correct the Error in future releases. A “Non-Critical Error” is any Error other than Critical Error.
Insperity does not warrant or represent that all Errors can be corrected.
c. Assistance. Customer will reasonably assist Insperity in verifying, reproducing, and correcting Errors. For example, assistance may include providing telecommunications connections to Customer’s computer equipment and providing sample output and other diagnostic information. Insperity’s assistance and support regarding the Subscription Materials (limited to that outlined above in this Section 7) will be provided only to the Support Contacts and only during Insperity’s normal support hours (as posted on the Web Site), Monday through Friday (weekends and holidays excluded).
d. Definitions. As used herein: “Error” means any error in the functionality or performance of the applicable Subscription Services that Insperity is able to verify and reproduce under conditions substantially identical to those reported by Customer; ” Error Correction” means either (i) a Subscription Services modification that corrects the Error at issue in all material respects, or (ii) a procedure or routine that, when included in the regular operation of such Subscription Services, eliminates the adverse effect of the Error at issue in all material respects; “Specifications” means the written functional performance specifications prepared by or on behalf of Insperity for the applicable Subscription Services, which are identified by Insperity as the specifications therefore; and ” Support Contacts” means those Customer employees (not to exceed two at any given time, unless agreed upon by both parties) designated in writing by Customer hereunder to be its technical support contacts for the purposes of reporting Errors and interacting and communicating with Insperity regarding Errors; Customer shall provide Insperity with at least three (3) business days’ prior written notice of any change in the Support Contacts, and Customer shall ensure that each Support Contact is at all times trained and competent with respect to the Subscription Services and efficiently interfaces with Insperity on support matters.
e. Force Majeure. Insperity shall not be liable for failure to perform any of its obligations under this Agreement if such failure is caused by an event outside of its reasonable control, including but not limited to, an act of God, war, terrorism or natural disaster.
8. Term and Termination.
a. Term. This Agreement is effective from the date Customer accepts this Agreement by making an online purchase of Subscription Services from Insperity. This Agreement shall remain in effect for an initial period as agreed upon in the Delivery Order for Subscription Services and as accepted by Customer upon purchase (“Initial Term“) and shall automatically renew for additional subsequent twelve (12) month terms (each a ” Renewal Term“) until terminated in accordance with this Agreement. . The initial term collectively with each renewal term shall be the “Term” of this Agreement.
b. Termination for Convenience. Customer may terminate this Agreement, effective upon thirty (30) days’ prior written notice to Insperity along with Customer’s inclusion of payment for all Subscription Fees remaining through the end of the then-current Term, if the Subscription Fees were not prepaid. If the Subscription Fees were prepaid, Customer forfeits any prepaid amounts for Subscription Fees for the then-current Term.
c. Termination for Cause. Either party may terminate this Agreement, effective upon written notice of termination to the other party, upon any of the following: (i) the failure of the other party to remedy, within thirty (30) days after written notice of the breach, such other party’s material breach of this Agreement; or (ii) the insolvency, bankruptcy, reorganization under the bankruptcy laws, or assignment for benefit of creditors of the other party.
d. Effect of Termination. Upon termination of this Agreement for any reason, (i) all licenses granted to Customer under this Agreement shall immediately terminate, (ii) Customer shall immediately discontinue all use of the Subscription Materials and shall ensure that all Authorized Users discontinue all use of the Subscription Materials, and (iii) subject to Section 5 (Customer Data) of this Agreement, each party will return or, at the request of the other party destroy all Confidential Information belonging to the other party. Termination of this Agreement will not affect any rights or obligations of the parties which are intended to survive its termination including (A) Customer’s payment obligations arising under this Agreement, (B) all license restrictions set forth in this Agreement, (C) the applicable provisions ofSection 2.b, Sections 5-6, and Sections 8-13, and (D) the terms defined in Section 1 and elsewhere in this Agreement (but only for the purposes of interpreting other surviving provisions of this Agreement). Further, any rights or obligations which are expressly stated in this Agreement as surviving any termination hereof shall so survive. Additionally, except in connection with a termination of this Agreement by Customer due to Insperity’s material breach or a termination by Insperity under Section 7 (Availability, Maintenance and Support) above, in connection with or as a result of any termination of this Agreement Insperity will not provide any refund to Customer of any prepaid Subscription Fees or other fees prepaid by Customer and Customer shall not be relieved of any obligation to pay Subscription Fees for the remaining months of Customer’s then-current Subscription Services Term.
9. Intellectual Property.
a. Intellectual Property Rights. As between the parties, Customer will retain all Rights in and to all content and information originating with Customer and its Authorized Users and provided or submitted by Customer or its Authorized Users to Insperity through the Subscription Service (” Customer Data“) (excluding Feedback) and Customer’s Confidential Information (collectively, the “Customer Property“); subject only to Insperity license rights pursuant to this Agreement. As between the parties, Insperity shall exclusively own all right, title and interest (“Rights“) in and to the Subscription Materials and Insperity’s Confidential Information and all derivative works and modifications thereof, Feedback, and intellectual property rights related to any of the foregoing (collectively, the ” Insperity Property“); subject only to Customer’s license rights hereunder. Without any additional consideration, Customer hereby automatically and irrevocably assigns to Insperity all Rights in and to all Insperity Property. Subject to Insperity’s confidentiality obligations under this Agreement, Customer grants Insperity a non-exclusive, worldwide, non-transferable, fully-paid-up, royalty-free right and license to reproduce, distribute, store, transmit, modify and otherwise use Customer Property as reasonably required for Insperity to perform its obligations hereunder during the Term. Nothing herein restricts or limits Insperity’s rights to create, distribute, or otherwise use any elements of the Subscription Materials or any modifications thereof.
b. Customer Feedback. Customer or its Authorized Users may provide feedback, comments, suggestions for improvement, forms, reports, notes, comments, or surveys on the Subscription Materials (“Feedback“). Insperity shall have the right to use Feedback furnished to it by Customer or its Authorized Users in any manner whatsoever and without any limitations. All Feedback provided by Customer or its Authorized Users will be the property of Insperity and may not be communicated to any third party. Insperity may use, copy, modify or distribute, including by incorporating into the Web Site or Subscription Materials, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users relating to the operation of the Web Site or the Subscription Materials.
a. Confidential Information Defined. The term “Confidential Information” means the provisions of this Agreement (which shall be the Confidential Information of both parties, subject to the following sentence), and any and all information, written or oral, provided or made available by or on behalf of one party or its affiliates, contractors, or vendors to the other party or its affiliates, contractors, or vendors in connection with this Agreement, whether or not designated as confidential. Insperity may disclose an accurate summary of the relationship formed hereunder, provided that Insperity does not reveal any associated pricing information, or other relationship details not included in prior disclosures that Customer has previously and expressly designated as being excluded from this disclosure right. Information of a third party to whom a party owes a duty of confidentiality will be treated as Confidential Information of that party if it meets the description above. However, Confidential Information does not include information that: was or is publicly available other than as a result of breach of this Agreement by Recipient; was or is lawfully received by the Recipient free of any obligation of confidentiality; or is independently developed by or on behalf of the Recipient without use of the Discloser’s Confidential Information
b. Restrictions on Use and Disclosure. Each party (“Recipient“) will not access or use the Confidential Information of the other (“Discloser“) for any purposes other than performance of its obligations or receipt of benefits hereunder and shall maintain such information in the strictest confidence. Recipient may disclose the Discloser’s Confidential Information to Recipient’s employees, attorneys, advisors, and contractors who have a legitimate “need to know”, provided that Recipient ensures that all such entities and persons are obligated to and do comply with confidentiality obligations consistent with (and no less restrictive than) this Section 10, but in no event may Customer disclose any of Insperity’s Confidential Information to any competitors of Insperity or any known employees or contractors of any competitors of Insperity. Recipient may disclose the Discloser’s Confidential Information to the extent such disclosure is necessary in connection with the enforcement of this Agreement; or necessary to comply with any legal or regulatory requirements, provided that the Recipient gives the Discloser prompt notice when permissible of the compelled disclosure and reasonably cooperates at Discloser’s expense, with the Discloser in seeking a protective order or any other protections available to limit the disclosure of the Discloser’s Confidential Information.
c. Equitable Relief. Each party agrees that its compliance with its obligations under this Section 10 are necessary to protect the business, goodwill and proprietary interests of the other party, and that such first party’s breach of any such obligations may give rise to irreparable injury to the other party that cannot be adequately compensated with monetary damages. Therefore, each party agrees that the other party shall be entitled to seek injunctive relief against the breach or threatened breach of such provisions or seek specific enforcement of such provisions, without posting a bond, in addition to any other legal or equitable remedies that may be available.
11. Disclaimer of Warranties. NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO INSPERITY’S EXPRESS WRITTEN WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SUBSCRIPTION MATERIALS, SERVICES, AND OTHER INSPERITY-SUPPLIED MATERIALS ARE PROVIDED “AS IS”, AND INSPERITY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING: (A) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT INSPERITY KNOWS, HAS REASON TO KNOW, OR HAS BEEN ADVISED OF ANY SUCH PURPOSE); (B) ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY CUSOTMER AS A RESULT OF PROVISION OR USE OF THE SUBSCRIPTION MATERIALS, SERVICES, OR OTHER MATERIALS PROVIDED HEREUNDER; (C) ANY WARRANTY OF UNINTERRUPTED, TIMELY, OR ERROR-FREE OPERATION OF ANY SUBSCRIPTION MATERIALS OR PROVISION OF SERVICES; AND (D) ANY WARRANTY REGARDING INTEGRITY OR RELIABIITY OF ANY DATA.
12. Limitation of Liability and Damages. NOTWITHSTANDING ANYTHING ELSE, INSPERITY SHALL NOT BE LIABLE WITH RESPECT TO ANY SOFTWARE, SERVICES AND/OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY CHARACTER, INCLUDING LOSS OF REVENUE OR PROFITS OR LOST BUSINESS, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OF ANY KIND. FURTHER, NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF INSPERITY AND ANY OF ITS SUPPLIERS OR LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER, SHALL BE LIMITED TO CUSTOMER’S ACTUAL DIRECT DAMAGES, NOT TO EXCEED IN THE AGGREGATE, FOR ALL CAUSES OF ACTION IN CONNECTION WITH THIS AGREEMENT, THE SUBSCRIPTION FEES PAID BY CUSTOMER TO INSPERITY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT, ACTION, OR OMISSION GIVING RISE TO LIABILITY FOR WHICH DAMAGES ARE RECOVERED. THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
13. General Provisions.
a. Governing Law; Disputes; Venue and Jurisdiction. This Agreement shall be construed, governed and enforced in all respects in accordance with the laws of the state of Texas and any applicable federal laws of the United States of America, without regard to the application of principles of conflicts of laws of any state and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the jurisdiction of the state and federal courts located in Harris County, Texas, and agree that said courts have the sole and exclusive jurisdiction over any and all disputes and causes of action that arise out of or relate to this Agreement. Subject to Section 12, the prevailing party in any such dispute or action will be entitled to recover all legal expenses incurred in connection with the action, including its costs, both taxable and non-taxable, and reasonable attorneys’ fees. This Section will survive any termination of this Agreement.
b. Assignment; Binding Effect. Neither this Agreement, nor any of the rights or obligations set forth herein or arising hereunder, may be assigned or delegated in whole or in part by Customer without the prior written consent of Insperity. Any purported assignment in violation of the preceding sentence shall be null and void and shall have no effect. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns.
c. Notices. Except as otherwise expressly provided by this Agreement, all notices and other communications which are required to be given by this Agreement or which are otherwise made pursuant to this Agreement will be in writing and delivered either by hand, certified or registered mail, overnight courier, or confirmed facsimile, addressed in case of the Customer to the address or facsimile number provided by Customer during registration and/or purchase of the Subscription Services and in case of Insperity to the attention of General Counsel, 19001 Crescent Springs Drive, Kingwood, TX 77339. All communications will be deemed received only upon actual delivery, if delivered by hand, confirmed facsimile, or overnight courier. Notices and communications may be sent by email, but any such emailed notice or communication must be copied and confirmed to the other party by way of one of the other methods described above in this paragraph, and such notice or communication, when copied and confirmed by way of such other method, will be deemed received in accordance with the above provisions of this paragraph.
d. U.S. Government Rights. Each of the Subscription Materials is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, if Customer is or acts on behalf of an agency or other instrumentality of the U.S. federal government , then Customer acquires only those rights in the Subscription Materials that are expressly provided by this Agreement.
e. Export Restrictions. Customer acknowledges that the Subscription Materials are subject to U.S. export jurisdiction. Customer agrees to comply with all applicable international and national laws that apply to the Subscription Materials, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
f. Waiver of UCITA. THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE IN ANY FORM (” UCITA“), SHALL NOT APPLY TO THIS AGREEMENT AND, TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT-OUT OF ITS APPLICABILITY PURSUANT TO ITS PROVISIONS.
g. All Services Performed in the US. Customer acknowledges and agrees that all obligations of Insperity are limited to the governing laws of the United States and that all Subscription Materials including the Subscription Services and any services provided by Insperity are made available in the United States and delivered or accessed in the United States.
h. Headings and Captions; Certain Definitions. Headings and captions used in this Agreement (including in any Delivery Order) are for convenience only and are not to be used in the interpretation of this Agreement. For purposes of interpreting this Agreement: (i) the terms ” herein,” “hereof,” “hereto,” “hereunder,” “hereinafter,” and similar terms shall refer to this Agreement as a whole and not merely to the specific section, subsection, paragraph or clause where such terms may appear; (ii) the terms “includes” and “including,” whether or not following by “without limitation” or “but not limited to” shall mean “including, without limitation,”; (iii) references to Sections are to the referenced Section of this Agreement, unless otherwise noted; and (iv) the term “or” is used in this Agreement in the inclusive sense of “and/or,” unless the context dictates otherwise.
i. Legal Advice. Customer acknowledges that Insperity is not providing any legal advice and use of the Subscription Materials does not ensure compliance with any local, state or federal governing employment laws. Customer should contact its HR advisor or attorney for any questions regarding the applicability of any policies contained in the Subscription Materials.
j. Other. In the event that any provision of this Agreement are held to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The parties are independent contractors under this Agreement. A party shall not be liable for any delays or failure to perform (other than any license, payment, or confidentiality obligations) as a result of causes beyond the reasonable control of such party and not due to the negligence on the part of the party claiming excuse for delay or failure; the party claiming excuse must promptly notify the other of the event and its expected duration and use its reasonable efforts to mitigate its effects and perform hereunder. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. Except as otherwise expressly set forth in this Agreement, any stated remedies are not exclusive, the exercise thereof shall not constitute an election of remedies, and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or equity. No waiver of this Agreement will be binding unless in writing and signed by the party waiving its rights. Each party represents that it has received legal advice from its own attorney(s) regarding this Agreement; it has not received or relied upon any legal or other comments, advice, or work product from any of the other party’s attorneys; and it has read and fully understands this Agreement. No provision of this Agreement, because of any ambiguity or otherwise, shall be construed against a party because such party or its legal counsel drafted that provision, and any rule of law or any legal decision that would otherwise require such a construction has no application and is expressly waived by the parties. This Agreement may be executed electronically and will have the same effect as original manual signatures.
k. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous discussions, agreements and understandings of every kind and nature between the parties. Neither party will be bound by any representation, warranty, covenant, term or condition other than as expressly set forth in this Agreement. Without limiting the foregoing: (i) requests for information, requests for proposal and responses thereto, sales collateral, and background information provided by either party to assist the other in evaluating their relationship are not contractual materials and are not binding; and (ii) no purchase order from Customer relating to this Agreement shall be binding in any respect on Insperity.