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THIS WORKSTREAM ONLINE SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) IS ENTERED INTO BETWEEN WORKSTREAM, INC. (“WORKSTREAM”) AND ("YOU" OR "YOUR" OR "CUSTOMER") IDENTIFIED ON THE ORDER THAT INCORPORATES THIS AGREEMENT BY REFERENCE (THE “ORDER)”.  BY EXECUTING THE ORDER, CLICKING THE APPROPRIATE BUTTON, LOGGING INTO, INSTALLING, ASSESSING OR OTHERWISE USING THE SERVICES (DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY (IN WHICH SUCH ENTITY IS THE "CUSTOMER"). WORKSTREAM AND CUSTOMER MAY ALSO BE REFERRED TO INDIVIDUALLY AS "PARTY" OR COLLECTIVELY AS THE "PARTIES" UNDER THIS AGREEMENT. CERTAIN CAPITALIZED TERMS ARE DEFINED IN SECTION 1 (DEFINITIONS) AND OTHERS ARE DEFINED CONTEXTUALLY IN THIS AGREEMENT.

 

1. DEFINITIONS.

 

Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.  

Customer Data” means any content, data or materials that Customer and/or Users submitted to the Services.  Customer Data excludes Usage Data, any content from publicly available sources, and any suggestions, enhancement requests, recommendation, corrections of other “Feedback” relating to the use and operation of the Services as described in Section 5.4 below.

“Documentation” means the Workstream provided instructions, descriptions of Support, and other descriptive product information applicable to the Services available at https://help.workstream.us/en/ as may be updated from time to time.

"Harmful Code" means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.

Order” means the applicable ordering document, acceptable to Workstream, executed by the Parties referencing this Agreement that sets out the specific Services, Usage Levels, and amounts purchased by Customer hereunder.

“Services” means the cloud-based software-as-a-service (“SaaS”) hiring platform and Software functionality, and all Updates, offered on a subscription basis by Workstream via an Order that provides the functionality described in the Documentation.

"Software" means any Workstream provided software, scripts, apps provided to Customer by Workstream for use with the Services.

“Subscription Term” means the period Customer is entitled to use the Services as set forth in the applicable Order.

"Support" means support for the Services as further described in Section 2.4 below.

“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes as further described in Section 6.4 below.

“Updates” means all updates and enhancements that Workstream generally makes available, at no additional charge, to its customers of the Services identified in an Order and licensed hereunder pursuant to Section 2.3 below.

“Usage Data” means usage information reflecting access or use of the Services by Customer and/or Users.

“Usage Levels” means metrics used to determine Customer access and use of the Services, as set out in an Order.

“Users” means the individual or agent authorized by Customer to use the Services.  Users include employees, consultants, agents, customers and other third parties accessing the Services on Customer’s behalf pursuant to the terms of this Agreement.

 

2. PROVISION OF SERVICES

 

2.1 Access to Services.  Subject to all the terms and conditions of this Agreement, including timely payment of Fees (described below), during the Subscription Term, Workstream will make the Services available to Customer and its Users pursuant to an Order for Customer’s internal business use at the Usage Levels purchased by Customer.  Customer agrees that that its purchase and use of the Services are not contingent on any future functionality or features or dependent on any oral or written public comments made by Workstream regarding future functionality or features.

 

2.2 Protection of Customer DataWorkstream will maintain industry-standard administrative, technical, and physical safeguards designed for the protection of the security, confidentiality, integrity of Customer Data and will exercise commercially reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.  

 

2.3 Changes to Services.  Subject to Section 7.2 below, Workstream may issue new releases for the Services during the Subscription Term which may include Updates, or other modifications which will be included in the Fees set out in the Order. 

 

2.4 Support Services.  Subject to the terms and conditions of this Agreement, Workstream will exercise commercially reasonable efforts to (a) provide Support for the use of the Services, and (b) keep the Services operational and available to Customer, in each case in accordance with its standard policies and procedures, and make the Services available 24 hours a day, 7 days per week ("Service Level Commitment") except: (i) planned downtime (of which Workstream shall give at least "72" hours of notice and which Workstream shall schedule to the extent practicable during weekend hours between Friday and Monday Pacific Time), and (ii) any unavailability caused by circumstances beyond Workstream’s reasonable control, including for example Force Majeure Event, or other labor problem (other than one involving Workstream employees), Internet service provider failure or delay, Third Party Applications, or denial-of-service attack.   For the avoidance of doubt, such Support services do not include support for Third-Party Applications (as defined below).

 

3. USE OF SERVICES

 

3.1 Users. Only Users are permitted to access and use the Services. Customer shall be responsible for: (a) Users’ compliance with this Agreement and any Order(s) issued hereunder; (b) the accuracy and quality of Customer Data, the means by which Customer acquired Customer Data, and obtaining appropriate usage rights with respect to Customer Data; (c) maintaining the confidentiality of usernames, passwords, and other account information (as applicable); (d) all activities that occur under its Users’ usernames, passwords, or accounts as a result of Users’ access to the Services; and (e) ensuring Users’ use the Services only in accordance with (i) Documentation, and (ii) all applicable laws and government regulations. Customer shall notify Workstream immediately of any unauthorized use of, or access to, the Services. Customer acknowledges that Workstream may contact Customer and Users via email or SMS text messages in connection with their use of the Services. Customer and/or Users use of SMS text messages: (1) is subject to the terms and conditions of such providers, and (2) standard message and data rates may apply.  

 

3.2 Restrictions. Customer shall not: (a) make any Services available to any third party other than Customer or Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any Services, or include any Services in a service bureau or outsourcing offering; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (e) permit direct or indirect access to or use the Services in a way that circumvents the Usage Levels, or use the Services to access any Workstream intellectual property, except as expressly permitted under this Agreement, an Order, or the Documentation; (f) frame or mirror any part of the Services, other than framing on Customer’s own intranet(s) (as applicable), or otherwise for its own legitimate business purposes or as permitted in the Documentation; (g) access the Services in order to build a competitive product or service or to benchmark with a non-Workstream product or service; (h) reverse engineer, copy, or modify software included as part of the Services (except to the extent expressly permitted by applicable law in conflict with this restriction); (i) utilize the Services for improper, fraudulent, or other non-legitimate business purposes; (j) use the Services in a way that could be considered harmful, malicious, threatening, offensive, pornographic, defamatory, bigoted, hateful, indecent, or otherwise objectionable; (k) use the Services to send unsolicited communications, promotions, or advertisements in violation of applicable anti-spam or e-privacy law or regulations; (l) use any automated device or process such as a robot, spider, data-mining, web-scraping, or other means to circumvent, access, or use or integrate with the Services or its contents, including but not limited to other user account information; or (m) damage, interfere, disable, or impair the Services in any way.

 

3.3 Unlawful Use of Services. Customer acknowledges that the Services may only be used for legitimate transactions that are permitted by law. Illegal use of the Services will be deemed a material breach of this Agreement, and such Services may be terminated at Workstream’s discretion. 

 

3.4 Affiliates. Customer’s Affiliate(s) may purchase Services under this Agreement if such Affiliate directly enters into an Order with Workstream, and by doing so such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Each Affiliate’s Orders, and the corresponding Usages Levels, are separate and distinct from Customer’s and other Affiliates’ unless otherwise set forth on the Order.

 

3.5 Age Requirements for Users.  The Services are not intended for, and should not be used by, anyone under the age of 16, except as expressly permitted by applicable local laws.  In all jurisdictions outside of the European Union, if a User is under the age of 18 or the age of majority in the applicable jurisdiction, User's must use the Services under the supervision of a parent, legal guardian or legally responsible adult.  Customer is responsible for ensuring that all Users are at least 16 years old and/or are otherwise complying with this Section 3.5.

 

4. THIRD-PARTY APPLICATIONS.

 

Customer may choose to use the Services with third-party platform, service or product ("Third-Party Applications") not provided by Workstream as it deems appropriate, including without limitation SMS services as described in Section 3.1(above).   Use of such Third-Party Applications is subject to the applicable service provider’s terms and conditions, including the payment of applicable fees, and not this Agreement.  Workstream has no liability for Third-Party Applications or how such Third-Party Applications use Customer Data. If Customer enables a Third-Party Application with the Services, Workstream is expressly granted permission to access and/or exchange Customer Data with such the Third-Party Application on Customer’s behalf in accordance with the terms of this Agreement. 

5. PROPRIETARY RIGHTS AND LICENSES.

5.1  Ownership; Reservation of Rights.  As between Workstream and Customer, all rights, title, and interest in and to all intellectual property rights in the Services and Workstream’s Confidential Information are and will remain owned exclusively by Workstream and its licensors.  Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, templates, formats, and customization related to the Services created by or on behalf of Workstream will immediately vest in Workstream upon creation. Nothing in this Agreement will preclude or restrict Workstream from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. 

5.2 Customer Data. As between Customer and Workstream, Customer Data, and Customer Confidential Information are and will remain owned exclusively by Customer. Customer hereby grants Workstream and its subprocessors (as applicable) a worldwide, limited-term license to utilize Customer Data (subject to Section 2.2 above) as necessary for Workstream to analyze, host, copy, transmit, display, access, and otherwise use Customer Data to provide the Services in accordance with this Agreement and each Order executed hereunder. 

5.3 Usage Data. Customer agrees that Workstream and its Affiliates (as applicable) may collect, use, and otherwise process Usage Data for its own internal analysis, analytics, and other lawful purposes (e.g., improving the Workstream Services). Workstream will only disclose Usage Data if such data is (a) aggregated and (b) does not disclose the identity of Customer or its Users or any Customer Confidential Information. 

5.4 Feedback. To the extent that Customer or its Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation (“Feedback”), Customer hereby grants Workstream an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such Feedback without any restrictions or attribution. 

6. FEES AND PAYMENT.

6.1 Fees. Customer shall pay Workstream all undisputed fees set forth in the applicable Order (“Fees”). Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and all Fees paid are non-refundable.  Fees for renewal Subscription Terms are at Workstream's then-current rates, regardless of any discounted pricing set forth in a prior Order.

6.2 Payment Terms.  Unless otherwise stated in an applicable Order, all Fees will be billed annually in advance and in United States dollars.  All invoices for Fees are due and payable within the timeframe set forth in the applicable Order, without deduction or set off.   If Customer provides Workstream with credit card information for payment, Customer acknowledges (a) that an invoice may not be sent and Customer authorizes Workstream to charge the credit card for the Services as set forth in the Order and/or for additional subscriptions added during the Subscription Term (as applicable), and (b) Customer will promptly update its account information with any changes to the credit card information provided.  Interest accrues from the due date at the higher of 1.5% per month or the highest rate allowed by law (“Late Payment Interest”), plus all expenses of collection. Customer is responsible for providing complete and accurate billing and contact information to Workstream and notifying Workstream of any changes to such information.  If Customer fails to pay any undisputed portion of a past due invoice within 30 days after receiving notice that its account is overdue, Workstream may, without limiting its other rights and remedies, suspend the applicable Services until such amounts are paid in full (“Suspension for Non-Payment”).  Workstream will not be obligated to continue to provide Services without payment of applicable Fees.

6.3 Use of Purchase Orders.  No additional or inconsistent terms of any purchase order, or other form provided by Customer, will modify or supplement this Agreement, regardless of any failure of Workstream to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.

6.4 Taxes. Unless otherwise provided, Fees do not include any Taxes. Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on Workstream’s net income or property. If Workstream includes on the invoice such Taxes for which Customer is responsible, the tax amount invoiced shall be paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on a Workstream invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.

7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE WARRANTIES, AND DISCLAIMERS.

7.1 General Warranty.  Each Party represents and warrants that (a) it has the legal power to enter into and perform under this Agreement and (b) it shall comply with all applicable laws in its performance hereunder.

7.2 Workstream Limited Services Warranty.  Workstream warrants that (a) the Services will perform materially in accordance with the applicable Documentation; (b) Workstream will not materially decrease the functionality of the Services during the current subscription Term; (c) Workstream will use industry standard measures to prevent Workstream from introducing Harmful Code through the Services. Customer’s exclusive remedy and Workstream’s entire liability for a breach of the above warranties will be the correction of the deficient service that caused the breach of warranty, provision of comparable functionality, or if, Workstream cannot accomplish the foregoing in a commercially reasonable manner, Workstream may terminate the deficient service and refund Customer the Fees for the terminated Services that Customer prepaid to Workstream, prorated to cover the remaining portion of the Subscription Term following notice of the breach of warranty.

7.3 Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY OR ITS LICENSORS MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WORKSTREAM DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD-PARTY ACCESS TO CUSTOMER DATA.  

8. INDEMNIFICATION.

8.1 Workstream Indemnification. 

(a) Workstream shall defend any claim brought against Customer by a third-party to the extent such claim alleges that Customer’s use of the Services (as authorized by this Agreement) infringes any valid and enforceable third-party U.S. intellectual property rights.  Workstream will indemnify and pay all damages (including reasonable attorney’s fees) finally awarded against Customer by a court of competent jurisdiction (or amounts agreed in monetary settlement) in any such Claim.

(b) if any such Claim is brought or threatened, or if Workstream reasonably believes that the Services may become the subject of an infringement Claim, Workstream may, at its sole option and expense (1) procure for Customer the right to continue to use the applicable Services; (2) modify the Services to make it non-infringing; (3) replace the affected aspect of the Services with non-infringing technology having substantially similar capabilities; or (4) if Workstream determines none of the foregoing is commercially practicable, terminate the Agreement upon thirty (30) days written notice and refund Customer any prepaid fees for the remainder of the applicable Subscription Term. 

(c)  Workstream’s defense and indemnity obligations do not apply to (1) any modification to the Services made by anyone other than Workstream, to the extent that the Services would not be infringing but for such modification, (2) any use of the Services in combination with software, products or services not provided by Workstream, to the extent that the Services would not be infringing but for such combination, (3) Customer’s use of the Services not in compliance with the terms of this Agreement, to the extent the Services would not be infringing but for such non-compliance.  

This indemnity states Workstream’s entire liability, and Customer’s exclusive remedy, for any third-party Claims as described in Section 8.1.

8.2 Customer Indemnification. Customer will defend Workstream from and against any third-party claim (“Claim”) to the extent resulting from (a) Customer Data (if used by Workstream in compliance with this Agreement) or (b) an alleged breach of Section 7.1(b) above. Customer will indemnify and pay all damages (including reasonable attorney’s fees) finally awarded against Workstream (or amounts agreed in monetary settlement) with respect to such Claim. 

This indemnity states Customer’s entire liability, and WORKSTREAM’s exclusive remedy, for any third-party claims as described in this Section 8.2.

8.3 Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a) prompt written notice, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of, any claim, provided the indemnified Party’s prior written consent shall be required with regard to any settlement that imposes any obligation or liability on the indemnified Party.  The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.  

9. CONFIDENTIALITY.  

9.1 Definition and Exclusions.  As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in an Order), the Services, documentation, business and marketing plans, technology and technical information, product designs, and certification and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third-party without breach of any obligation owed to Disclosing Party.

9.2 Obligations.  Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.

9.3 Disclosures Required by Law.  If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with reasonable prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.

9.4 Remedies.  Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 9.

9.5 Return or Destruction.  Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.

10. LIMITATION OF LIABILITY

10.1 Exclusion of Damages.  NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, REVENUES, GOODWILL OR BUSINESS INTERRUPTION, SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

10.2 Limitation of Liability.  A PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ALL DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WILL NOT EXCEED THE FEES PAID OR PAYABLE TO WORKSTREAM GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.  THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND THIS LIMIT.  THE LIABILITY LIMITATIONS UNDER THIS SECTION 10.2 WILL NOT APPLY TO (A) CUSTOMER’S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT, (B) CUSTOMER’S MATERIAL BREACH OF SECTION 3.2 (RESTRICTIONS), (C) AMOUNTS FINALLY DETERMINED PURSUANT TO EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8, OR (D) EITHER PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT. 

11. TERM AND TERMINATION.

11.1 Term of Agreement.  This Agreement will commence on the Effective Date and continue until terminated as permitted herein (the “Term”).  If there are no active Orders, this Agreement may be terminated by either Party upon ninety (90) days’ prior written notice.

11.2 Subscription Term. The initial Subscription Term and any applicable renewal subscription Term will commence and expire in accordance with the start date and end date set forth in the Order. Unless otherwise specified in an Order, a Subscription Term will automatically renew for one (1) year on the same terms, unless either Party gives the other Party written notice of non-renewal at least thirty (30) days before the end of the relevant subscription Term. Any new service subsequently added to Customer’s subscription will be coterminous with the current subscription Term.

11.3 Suspension. In the event of Customer’s or a User’s breach of this Agreement, including without limitation for Suspension for Non-Payment or violation of the restrictions in Section 3.2 above, Workstream, in its reasonable discretion, may suspend Customer or a User’s access to or use of the Services. Notwithstanding the foregoing, Workstream shall use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Customer or a User via email before taking the foregoing actions. 

11.4 Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of the breach from the non-breaching Party, or with immediate effect where such material breach cannot be cured. For the avoidance of doubt, Customer’s noncompliance with Section 3.2 is deemed a material breach of this Agreement. This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within thirty (30) days. 

11.5 Effect of Termination. Upon the termination of this Agreement for any reason: (a) all outstanding Orders and access to the Services will automatically terminate; (b) Customer and its Users shall immediately cease access and use of the Services, other than for retrieval purposes provided in (d); (c) all outstanding payment obligations of Customer will become due and payable immediately; and (d) for thirty (30) days following the termination of this Agreement Workstream shall make Customer Data available to Customer, at Customer’s request, solely for purpose of allowing Customer to retrieve Customer Data. After thirty (30) days, Workstream will have no obligation to maintain or provide any Customer Data, and thereafter may delete or destroy all copies of Customer Data, except if Workstream is required to retain a copy of such Customer Data for legal purposes, on condition that such copy remains subject to the confidentiality provisions of this Agreement. 

11.6 Surviving Provisions. The Sections titled “Fees and Payment,” “Ownership,” “Confidentiality,” “Representations, Warranties, Exclusive Remedies and Disclaimers,” “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination of this Agreement.

12. GENERAL PROVISIONS.

12.1 Publicity and References.  With written consent of Customer, Workstream will have the revocable limited right to use Customer's company name and logo as a reference customer on client lists published by Workstream and in Workstream's marketing materials, in accordance with Customer's guidelines.  Customer may separately agree that Workstream may announce the relationship in a press release or similar communication provided that Workstream obtains Customer's prior written approval, not to be unreasonably withheld.  Upon Customer's written request, Workstream will remove any such marks from Workstream's website and, to the extent commercially feasible, Workstream's marketing materials.

12.2 Relationship of the Parties. The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties is created hereby. If you are an employee, contractor, or other member of the workforce, or a representative of a direct competitor of Workstream, you may not access the Services, except with the prior written consent of Workstream. There are no third-party beneficiaries to this Agreement and no third-party beneficiary rights shall be recognized hereunder.

12.3 Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each Party set forth on the Order, or to such other address as either Party may substitute by written notice to the other. Any required notice under this Agreement or any Order may be provided to the email address in the signature block, or where otherwise indicated, followed by the hard copy notice required. The hard copy notice may be waived by both Parties via the email notice. Customer must provide their email address for notices in the Order or in the signature block herein, if applicable.   Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit via certified mail, or upon confirmation of receipt if sent by email.  

12.4 Modifications.  Workstream may modify the terms of this Agreement (including any terms or policies referenced herein as applicable) from time to time, with notice to Customer as set forth in Section 12.3 (Notices) or by posting the updated and/or modified Agreement on Workstream’s website.  Customer can review the most current version of the Agreement at any time by visiting the website.  The revised Agreement will become effective on (a) the date set forth in the notice or (b) the effective date of the posted change, whichever is later.  If Customer (or any User) access or uses the Services after the effective date, such use will constitute Customer’s acceptance of any revised terms and conditions.

12.5 Waivers; Severability. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

12.6 Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, pandemics or epidemics (or similar regional health crisis), actions or decrees of governmental bodies, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes that are (i) beyond the reasonable control of and without fault or negligence of the affected Party, (ii) hinders, delays or prevents such Party in performing any of its obligations, and (iii) by the exercise of reasonable diligence such Party is unable to prevent or provide against, (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. For the avoidance of doubt, issues relating to COVID-19 will not be considered a Force Majeure Event.

12.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity. If an assignment of this Agreement occurs pursuant to a merger, reorganization or sale of all or substantially all assets or equity, the assigning party agrees to notify the other party within 30 days of such assignment. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.8 Subcontractors.  Workstream may use subcontractors and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate, provided that Workstream remains responsible for the performance of each subcontractor. 

12.9 Compliance. Each Party agrees to comply fully with all applicable laws, rules and regulations, including but not limited to all applicable anti-bribery and anti-corruption laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act (the "Anti-Corruption" laws). Each Party agrees to comply with all applicable rules and regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Services.

12.10 Government End-Users.  Elements of the Services. and Documentation are “commercial items,” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in FAR 12.212 and DFARS 227.7202.  Consistent with FAR 12.212 or DFARS 227.7202, as applicable, the Services and Documentation are made available to U.S. Government end users only as a commercial item, with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

12.11 Governing Law and Arbitration. This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising under or in connection with this Agreement shall be submitted to JAMS or a successor organization for binding arbitration by a single arbitrator in San Francisco, California, provided that a Party may also seek injunctive relief as provided in Section 9.4 in a court of competent jurisdiction.  The Parties agree to use good faith efforts to conduct the arbitration hearing within one hundred eighty (180) days of the filing of an arbitration demand with JAMS by any Party hereto, and a decision shall be rendered by the arbitrator within thirty (30) days of the conclusion of the hearing.  The arbitrator shall have complete authority to render any and all relief, legal and equitable, appropriate under this Agreement. The arbitrator shall award costs of the proceeding, including reasonable attorney’s fees, to the Party determined to have substantially prevailed. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in and serving San Francisco, California, for the enforcement of arbitral awards or injunctive relief in accordance with Section 9.4.