Workstream Subscription Services Agreement

THIS WORKSTREAM SUBSCRIPTION SERVICES AGREEMENT (“SUBSCRIPTION AGREEMENT”) IS ENTERED INTO BETWEEN WORKSTREAM, INC. (“WORKSTREAM”) AND ("YOU" OR "YOUR" OR "CUSTOMER") IDENTIFIED ON THE ORDER (AS DEFINED BELOW).  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 SUBSCRIPTION AGREEMENT. IF YOU ARE ENTERING INTO THIS SUBSCRIPTION 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 SUBSCRIPTION AGREEMENT, SERVICE-SPECIFIC TERMS (AS DEFINED BELOW) OR IN THE APPLICABLE ORDER.

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.  

“Agreement” means, collectively, this Subscription Agreement, each applicable Order, and any Service-Specific Terms (and all exhibits or schedules attached to any of the foregoing) entered into by the Parties. 

“Aggregate Data” means aggregated and de-identified data that does not reasonably identify Customer or any User or otherwise reveal the data was obtained in connection with Workstream’s relationship with Customer, may be derived, generated, or compiled from (i) any Customer Data or (ii) Usage Data.

“Beta Services” means services or features identified as alpha, beta, preview, early access or evaluation, or words of phrases with similar meaning. 

“Customer Data” means any content, data or materials that Customer and/or Users submitted or is submitted on their behalf to the Services or to Workstream in the connection to Customer use of the Services, other than Enrollment Data. Furthermore, Customer Data excludes Aggregate Data, Usage Data, any content from publicly available sources, Feedback (as defined below) and any other information, data, data models, content or materials owned or controlled by Workstream made available through or in connection to the Services.

“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/ or as otherwise provided or made available to Customer by Workstream, as may be updated from time to time. 

“Enrollment Data” means information and data provided to or collected from individuals by Workstream prior to such individual’s submission of any applications for employment or job opportunity with Customer. Enrollment Data does not include any data submitted by employees, contractors, or agents of Customer on behalf of such individuals. Enrollment Data will only be collected from individuals with their consent and may include such individuals name, email address, phone number and date of birth.

“Order” means the applicable ordering document, order page or user interface, 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 service and Software functionality provided as part of the Services, and all Updates, ordered on an Order that provides the functionality described in the Documentation.

“Service-Specific Terms” means additional terms that apply to certain Services set forth on Appendix 1 or otherwise set forth or referenced on the applicable Order.

"Software" means any 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 2.5 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.

“Third-Party Applications” means services, products, platform, technology, or content offered by third parties.

“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 compiled statistical and other information relating to the performance, operation, and use of the Services. Usage Data does not include any personally identifiable data.

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

“Users” means an individual authorized by Customer to use or access the Services on behalf of Customer 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 (defined 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 by Customer as set forth in such Order.  Customer agrees that its license 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. Customer acknowledges it is obtaining only a limited right to use the Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its Users) under the Agreement.  If you are an accountant, bookkeeper, financial services company, or other business entity that is a representative or agent of Customer (each a, “Third Party Agent”) using the Service or are managing your client’s or customer’s use of the Services, this Agreement and the Agent Terms of Service govern the Third Party Agent’s access to and use of the Services on behalf of the Customer.

2.2 Protection of Customer Data.  Workstream 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 protect against unauthorized disclosure or exposure of Customer Data.  

2.3 Service-Specific Terms.     Certain Services, or portions thereof, may be subject to additional terms, including third party terms and conditions, that are specific to the Services and are set forth in the Service-Specific Terms. By accessing or using Services covered by any Service-Specific Terms, you agree to the applicable Service-Specific Terms. If there is a conflict between these Terms and the Service-Specific Terms, the Service-Specific Terms will control with respect to the applicable Services or portions thereof.

2.4 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. Without limiting the foregoing, Workstream may add additional features at no additional charge, however these free features may be withdrawn without further notice or reductions in Fees. 

2.5 Support Services.  Subject to the terms and conditions of this Agreement and the terms of any express service level commitment set forth in any applicable Service-Specific Terms, 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, Customer network or systems outages or downtimes, or denial-of-service attack.   For the avoidance of doubt, such Support services do not include support for Third-Party Applications.

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, including but limited to all telemarketing regulations and laws governing the sending of SMS text messages. Customer agrees that use of any SMS Text message functionality offered through the Service is (1) subject to the terms and conditions of the applicable telecommunication providers, and (2) standard message and data rates may apply. 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 is subject to the terms and conditions of such providers, and any applicable provider message and data rates.  

3.2 General 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 the Agreement; (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;  (m) damage, interfere, disable, or impair the Services in any way or (n) use the Services in violation of any restrictions or obligations set for in any applicable Service-Specific Terms.

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 the Agreement, and such Services may be terminated at Workstream’s discretion. 

3.4 Affiliates. Customer’s Affiliate(s) may purchase Services under the 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 the 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 13, except as expressly permitted by applicable local laws. 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 13 years old and/or are otherwise complying with this Section. Customer will promptly notify Workstream of any unauthorized use of or access to the Services. 

3.6 Beta Services. 

1. Use In Customer’s Discretion. Despite anything to the contrary in the Agreement: (i) Customer may choose to use Beta Services in its sole discretion on an “AS IS” basis, without any warranty, liability, indemnity, or performance obligations; (ii) Beta Services may not be supported and may be changed at any time without notice; (iii) Beta Services may not be as reliable or available as the Services; (iv) the Beta Services may not operate properly, may not perform all functions for which it is intended or represented, and may not operate error free; (v) Beta Services have not been subjected to the same security measures and auditing to which the other Services have been subjected; and (vi) WORKSTREAM WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH OR USE OF BETA SERVICES AND CUSTOMER USES AT ITS OWN RISK.
2. Discontinuing Beta Services. Workstream may discontinue Beta Services, or revoke Customer’s access to Beta Services, at any time for any or no reason, in Workstream sole discretion, without any liability to Customer. Discontinuing Beta Services, or making Beta Services inaccessible to Customer, may have the effect of making some or all of Customer Data inaccessible to Customer.
3. Support. Beta Service is not subject to any support commitments.
4. Feedback. Workstream offers Beta Services in order to get user Feedback. In exchange for using Beta Services, Customer agrees that Workstream may contact Customer and its Users to obtain Feedback regarding Beta Services.  
5. Confidential. Beta Services are confidential until officially launched by Workstream and Customer will treat the Beta Services, and any documentation, specifications, or instructions related to the Beta Services, as Confidential Information of Workstream. 

3.7 Customer Is Responsible for Certain Information and Obligations Relating to the Services. 

1. Service Administrator. 

   Customer will designate and authorize either itself and/or one or more individuals or third party representatives with authority to (i) act on Customer’s behalf, (ii) provide information on Customer’s behalf, and (iii) bind Customer and/or Customer’s business with respect to the Services (each such individual, an “Service Administrator”). A Service Administrator is authorized by Customer to access the Services by entering a confidential user ID and password. Such account login information will entitle the Service Administrator, depending on their designation and the permissions given by Customer, to have the authority to input information and access, review, modify, and/or provide approvals on Customer’s behalf.

2. Agent Administrators. Customer may choose to invite a Third Party Agent to act as a Service Administrator for the Customer (a “Agent Administrator”). For the avoidance of doubt, the term “Service Administrator” as used in Agreement includes Agent Administrators. In addition to the actions, rights, and responsibilities applicable to Customer’s Service Administrators, Customer’s Agent Administrators are subject to their compliance with this Agreement and the Third Party Agent Terms. Customer understands and agrees that Agent Administrator may be enabled to take certain actions within the Service, including but not limited to inviting additional Agent Administrators to manage the Service on behalf of the Customer, enabling Services on behalf of Customer, and managing certain Service Administrator permissions on Customer’s behalf. Customer may also authorize Agent Administrators to pay Customer’s Fees (as defined below) on Customer’s behalf, subject to Section 6 below. Customer understands and agrees that by permitting an Agent Administrator to access Customer’s Service, Customer is authorizing such Agent Administrator to act as an authorized representative of the Customer with regard to Customer’s use of the Service, and that such Agent Administrator is authorized to provide information to Workstream at Workstream’s request regarding the Customer and Customer use of the Services, including without limitation, information about the Customer Bank Account and Customer’s payment of Fees (among other things).
3. Authorized Actions. Customer is solely responsible for all actions taken under any Service that Customer has access to. Any actions taken under Service that Customer has access to will be deemed authorized by Customer, regardless of Customer’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by Customer, User, or a Service Administrator, and (ii) actions that Customer, User ora Service Administrator (or anyone that Workstream reasonably believes to be any of the foregoing) directs or instructs Workstream to take on its behalf. Customer agrees that, to the fullest extent permitted by law, the provision of Service login credentials (e.g., username and password) or identity verification credentials to Workstream by Customer or a Service Administrator, together with any actions authorized by such foregoing parties via the Service (e.g., clicking the “Submit” or other buttons) or otherwise (e.g., verbally telling a Workstream representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
4. Information and Instructions. 

   Customer is solely responsible for (i) following instructions that Workstream provides to Customer with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Service, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by Customer.

5. Passwords and Credentials. Customer will, and will cause authorized users of Customer’s Service, including but not limited to Service Administrators, to take reasonable steps to adequately secure, and keep confidential, any Customer Service passwords or credentials, and any information accessible via the Customer Services. If Customer believes or suspects that Customer’s Services or passwords or credentials for Customer’s Service have been disclosed to, accessed by, or compromised by unauthorized persons, Customer must immediately notify Workstream. Workstream reserves the right to prevent access to the Services if Workstream has reason to believe that Customer’s Service or passwords or credentials for Customer’s Service have been compromised.
6.   Updates to Customer Information. Customer is responsible for timely providing Workstream with the information required for Workstream to perform the Services. Customer may furnish such information directly to Workstream or through  a Service Administrator, Third Party Agent or vendor of Customer. Furthermore, Customer represents and warrants to Workstream that for any information that Customer shares with Workstream, whether directly or through its Service Administrator, Third Party Agent or vendor of Customer, Customer will have the authority to share such information. Customer is solely responsible for the accuracy and completeness of information and related data transfer provided to Workstream, and Customer will ensure that any such information, whether provided by Customer or a Service Administrator, Third Party Agent or vendor of Company, is accurate and complete. Moreover, Customer is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Workstream, whether directly or through a Service Administrator, of any changes to the information provided to Workstream.
7. Customer Materials. 

   Customer, whether directly or through its Service Administrators, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Customer Materials”) posted to the Service by Workstream (or otherwise made available to Customer by Workstream) for Customer’s review, and Customer or its Service Administrators must notify Workstream of any inaccuracies in the Customer Materials as soon as possible, or within the time period specified in communications received from Workstream.

8. Third-Party Notices. Customer, whether directly or through its Service Administrators, is also obligated to promptly notify Workstream of any third-party notices that Customer may receive which could affect Workstream’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against Customer or Workstream in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services.

4. THIRD-PARTY APPLICATIONS.

Customer may choose to use the Services with Third-Party Applications not provided by Workstream as it deems appropriate, including without limitation SMS services as herein.   Use of such Third-Party Applications is subject to the applicable service provider’s terms and conditions, including the payment of applicable fees, for which Customer is solely responsible for such obligations.  Workstream has no liability for Third-Party Applications or how such Third-Party Applications use Customer Data or the data security of such Third-Party Application. 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 the 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, Workstream’s Confidential Information, Feedback, Aggregate Data, and Usage Data 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 Feedback, concepts, ideas, techniques, or know-how of or related to the Services. 

5.2 Customer Data. Subject to Section 5.3, as between Customer and Workstream, Customer Data, and Customer Confidential Information are and will remain owned exclusively by Customer. Customer hereby grants Workstream and each of its subprocessors (as applicable) a worldwide, limited-term license to utilize as necessary for Workstream to analyze, host, copy, transmit, display, access, and otherwise use Customer Data to provide, operate and improve the Services in accordance with this Agreement and each Order executed hereunder. 

5.3 Enrollment Data. Nothing in this Agreement shall prevent Workstream from using the Enrollment Data for any lawful business purpose. 

5.4 Aggregate Data and Usage Data. Customer agrees that Workstream and its Affiliates (as applicable) may create a data set consisting of Aggregate Data and Usage Data. Workstream may use this Aggregate Data or Usage Data (i) provide and maintain Services; (ii) improve or offer new Services; (iii) measure performance of Services; or (iv) for any other lawful business purpose as Workstream so desires, in Workstream’s sole discretion, including industry analysis, benchmarking, analytics, and marketing. Except as necessary to deliver the Services, Workstream will not provide third parties identifiable data regarding Customer or Customer’s Users.

5.5 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. 

5.6. Customer Data Use. This Agreement constitutes Customer’s instructions to Workstream to process Customer Data. Workstream, its personnel and Subcontractors will only process, access, use, store, and transfer Customer Data as Customer instructs to deliver the Services and to fulfill Workstream’s obligations in the Agreement. If Customer accesses or uses multiple Services, Customer acknowledges and agrees that Workstream may transfer Customer Data between those Services. Workstream will inform Customer of any legal requirement which prevents it from complying with Customer’s instructions, unless prohibited from doing so by applicable law or on important grounds of public interest. 

5.7 Limited Trademark License. Customer grants Workstream the limited, worldwide, and revocable license to include Customer’s logo, branding, and trademarks in the Service for purposes providing Consumer the Services contemplated under this Agreement.

6. FEES AND PAYMENT.

6.1 Fees. Customer shall pay (or have paid on its behalf) 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. The Parties agree that Workstream may permit and Customer may authorize a third-party to pay the Fees on behalf of Customer with Workstream’s prior express written consent. In the event such third-party fails to pay all or some of the Fees pursuant agreed payment terms on behalf of Customer, Customer agrees that Customer will remain responsible for and pay such unpaid Fees (along with any associated bank fees or costs of collection reasonably incurred by Workstream) and shall pay to Workstream pursuant to the terms of this Agreement.  

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 or debit 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 or debit 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 the 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.

6.5. Recurring Billing. If Customer chooses a recurring payment plan, Workstream will automatically charge Customer’s credit card or debit card the monthly or annual amount in accordance with the Order until your service is terminated. By choosing a recurring payment plan, Customer acknowledges that such Services have a recurring payment feature, and Customer accepts responsibility for all recurring charges prior to cancellation. WORKSTREAM MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY WORKSTREAM) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE SUCH PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WORKSTREAM REASONABLY COULD ACT.

7. REPRESENTATIONS, WARRANTIES, DISCLAIMERS.

7.1 General Warranty.  Each Party represents and warrants that (a) it has the legal power to enter 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 and (b) Workstream will not materially decrease the functionality of the Services during the current Subscription Term. 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 written notice from Customer of the breach of warranty.

7.3 Customer Representation and Warranty. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Data (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by the Agreement; (ii) Company’s use of the Customer Data in accordance with the Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party, including but limited to the Customer’s privacy policy; and (iii) Customer shall at all times be responsible for ensuring Customer’s and its Users’ use of the Services, including any Customer content, employment listings and messaging posted or upload to the Services complies with all laws, including but not limited to the Fair Credit Reporting Act and similar laws, anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and any applicable local, state or federal employment, wage transparency, data protection or privacy laws. 

7.4 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.  SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

TO THE EXTENT ANY ERROR RESULTS FROM WORKSTREAM’S RELIANCE ON INFORMATION PROVIDED BY OR ON BEHALF OF CUSTOMER, USER, OR AGENT ADMINISTRATOR, OR ANYONE THAT WORKSTREAM REASONABLY BELIEVES TO BE (INCLUDING AN AUTHORIZED REPRESENTATIVE OF) CUSTOMER, USER OR AGENT ADMINISTRATOR) (EACH, A “RESULTING ERROR”), THEN WORKSTREAM MAY ATTEMPT TO CORRECT THE RESULTING ERROR, BUT MAKES NO WARRANTIES OR GUARANTEES THAT IT WILL BE ABLE TO PARTIALLY OR FULLY CORRECT THE RESULTING ERROR AND WILL NOT BE LIABLE FOR ANY FAILURE TO PARTIALLY OR FULLY CORRECT SUCH RESULTING ERROR.

ANY ADVICE, TRAINING OR INFORMATION GIVEN BY WORKSTREAM IN THE COURSE OF OFFERING OR IMPLEMENTATION OF THE SERVICES (“CONTENT”) IS FOR INFORMATIONAL PURPOSES, IS NOT INTENDED AS LEGAL, TAX, ACCOUNTING OR EMPLOYMENT ADVICE FOR ANY PURPOSE, AND SHOULD NOT BE CONSIDERED AS LEGAL, TAX, ACCOUNTING OR EMPLOYMENT ADVICE OR OPINION.  USE OF WORKSTREAM SERVICE DOES NOT CREATE, AND IS NOT INTENDED TO CREATE, ANY ATTORNEY CLIENT RELATIONSHIP OR OTHER ADVISORY RELATIONSHIP. CUSTOMER IS SOLELY RESPONSIBLE FOR OBTAINING ITS OWN LEGAL, TAX, ACCOUNTING OR EMPLOYMENT ADVICE.

8. INDEMNIFICATION.

8.1 Workstream Indemnification. 

1. Third Party Claims. Workstream will defend Customer from and against any third-party claim (“Claim”) 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.
2. Workstream Determination. 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. 
3. Limitations. 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) use of a superseded version of the software as part of the Service if the infringement would have been avoided by the use of an updated release of such software (4) any AI Functionality (as defined herein), and (4) Customer’s use of the Services not in compliance with the terms of this Agreement or Customer’s breach of this Agreement, to the extent the Services would not be infringing but for such non-compliance or breach.

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

8.2 Customer Indemnification. Customer will defend Workstream from and against any Claim to the extent resulting from (a) Customer Data (if used by Workstream in compliance with this Agreement), (b) an alleged breach of Sections 3.2 or 7.1 or (c) Customer’s violation of any applicable law, including any local, state or federal employment or wage transparency law. 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 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.  

8.4. Duty to Mitigate. If Customer becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Workstream or Customer in connection with this Agreement, Customer must use reasonable efforts to mitigate any loss that may give rise to such a Claim.

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 BREACH OF SECTIONS 3.2 AND 3.6(C), (C) AMOUNTS FINALLY DETERMINED PURSUANT TO EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8, OR (D) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL 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 or until the expiration of the term set forth in the last in force Order (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 each applicable Order. Unless otherwise specified in an Order, the Subscription Term will automatically renew on the same terms for each subsequent renewal Subscription Term unless a Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the end of the applicable 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 commercially 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 Section 3.6(a)(v), Section 3.6(b), Section 3.6(c), Section 5, Section 6, Section 7, Section 8, Section 9, Section 10,  11, and 12 will survive any termination of this Agreement and any provisions of any applicable Service-Specific Terms that by their nature would continue beyond expiration, termination or cancellation of this Agreement or applicable Service-Specific Terms (including, without limitation, the warranties, indemnification obligations, confidentiality requirements and ownership and property rights) shall survive any such expiration, termination or cancellation.

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. 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 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.

Appendix 1

Specific Service Terms

Team Management Services 

If Workstream makes all or part of the Team Management Services suite available to Customer pursuant to this Agreement, the Team Management Services Terms available at workstream.us/tmterms are incorporated herein and shall govern the provision and use of those Services. 

Team Management Services product suite consists of a combination of one or more of the following Service features as set forth on the applicable Order:

• Documents & Signatures Service
• OnBoarding Service
• Surveys Service
• Records & Chat Service

Payroll Services

If Workstream makes the Payroll Services available to Customer pursuant to this Agreement, the Payroll Services Terms available at workstream.us/payrollterms are incorporated herein and shall govern the provision and use of those Services.

AI Functionality Services

If Workstream makes the AI Functionality (as defined in the AI Terms) available to Customer pursuant to this Agreement, the AI Functionality Services Terms available at workstream.us/aiterms (“AI Terms”) are incorporated herein and shall govern the provision and use of those Services.

BenAdmin Services

If Workstream makes the BenAdmin Services (as defined in the BenAdmin Terms) available to Customer pursuant to this Agreement, the BenAdmin Terms available at workstream.us/benadminterms are incorporated herein and shall govern the provision and use of those Services.