This Master Terms of Service (“Terms”) is incorporated into the Order Form and constitutes an agreement between Customer, as identified in the Order Form (“Customer” or “You”) and StaffWizard, LLC, a Texas limited liability company (“StaffWizard”) regarding the access to and use of the Platform and related Professional Services.

By executing the Order Form, you agree to be bound by the terms of the Agreement. Further, by using the Services (whether or not you are a registered User), you accept and agree to be bound by the terms of the Agreement and to abide by all Applicable Laws. Therefore, you should read these Terms carefully. These Terms are binding upon you and may be modified from time to time. Once modified, you will be required to accept the revised Terms via click-through to continue using the Services.

FAILURE TO AGREE TO THESE TERMS AND ANY SUCH REVISED TERMS WILL PROHIBIT YOU FROM ACCESSING AND USING THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND TO ABIDE BY ALL APPLICABLE LAW, YOU MUST IMMEDIATELY DISCONTINUE USE OF THE SERVICES.

1. DEFINITIONS

Capitalized terms have the meanings provided in this section or as specified in the body of the Agreement.

• Acceptable Use Policy means StaffWizard’s Acceptable Use Policy referenced in the Agreement or the Order Form. The acceptable Use Policy is located staffwizard.com/AUS or such other URL as StaffWizard may specify, which is hereby incorporated by reference. StaffWizard may modify the Acceptable Use Policy by posting a new version on its website.
• Agreement means the Master Terms of Service, the Acceptable Use Policy, the Privacy Policy, the SLA, all other incorporated documents, and unless the context requires otherwise, includes all Order Forms, and any addendums, exhibits or attachments to any of the foregoing including any future modifications thereof.
• Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Affiliates of StaffWizard, Inc. include any of its corporate Affiliates which may be specified or otherwise assigned rights or obligations under these Terms or any Order Form.
• API means application programming interface.
• Applicable Laws means all applicable laws, rules and regulations issued by any governmental entity.
• Customer Data means all electronic data or information submitted by Customer to the Platform.
• Documentation means any proprietary information or documentation StaffWizard makes available to you for use with the Platform, including any documentation available online through the Platform dashboard or otherwise.
• Fees means all fees specified in all Order Forms for the Services.
• Master Terms of Service means this document is located www.staffwizard.com/MTS or such other URL as StaffWizard may specify, which is hereby incorporated by reference. StaffWizard may modify the Master Terms of Service by posting a new version on its website.
• Order Form means each StaffWizard ordering document signed by both Parties which references these Terms, identifies the Services ordered by Customer from StaffWizard, sets forth the prices for the Services, and contains other applicable information terms and conditions, including any addendum, exhibit, attachment or any amendment.
• Platform means, collectively, the all-in-one scheduling, dispatching, invoicing, HR and payroll management solution provided via online, web- based software applications, mobile applications and the related software-as-a-service platform and system provided by StaffWizard and marketed as the StaffWizard software platform, ordered by Customer pursuant to this Agreement as specified in one or more Order Form(s).
• Privacy Policy means StaffWizard’s Privacy Policy referenced in the Agreement or the Order Form. The Privacy Policy is located www.staffwizard.com/PP or such other URL as StaffWizard may specify, which is hereby incorporated by reference. StaffWizard may modify the Privacy Policy by posting a new version on its website.
• Professional Services means configuration, training and such other services as may be described in an Order Form.
• Services means the provision of the Platform, Support Services, the Professional Services, and any other services specified an Order Form.
• SLA means StaffWizard’s Service Level & Support Services Terms referenced in the Agreement or an Order Form. The SLA is located [www.staffwizard.com/SLA] or such other URL as StaffWizard may specify, which is hereby incorporated by reference. StaffWizard may modify the SLA by posting a new version on its website.
• Social Media Network means websites such as Twitter, Facebook, Google, or other websites that solicit content from users and makes such content available for re-syndication and/or publication via an API and are utilized by Customer via the Platform.
• Social Media Network Content means all content originally posted by third parties to a Social Media Network.
• Social Media Network TOS means the terms of service, rules, guidelines, and any applicable requirements or terms and conditions of any Social Media Network with respect to access and use of, or other rights with respect to, a Social Media Network or Social Media Network Content.
• Support Services means the support services StaffWizard provides under the SLA
• Term means the time period for the provision of the Services, as specified in an Order Form.
• User means an authorized individual to use the Platform in accordance with the Agreement. The rights of any User to use the Platform cannot be shared or used by more than one individual (unless such right is reassigned in its entirety to another authorized User).

• SERVICES
  • Provision of Services. StaffWizard will provide to Customer the Services pursuant to the Agreement during the applicable Term.
  • Only Customer and its Users may access and use the Services through StaffWizard’s designated website and/or mobile application. Customer’s rights are limited to the access provided under the Agreement. No other access, or license to the Platform, is granted under these Terms. There are no implied licenses. StaffWizard reserves all rights not expressly granted to Customer under these Terms. Customer agrees to provide StaffWizard upon request with reasonable access to all such sites, and reasonable remote access (which may include remote desktop sessions), solely for purposes of performing Services in accordance with the Agreement.
  • Service Availability. StaffWizard will use commercially reasonable efforts to make the Services generally available in accordance with the SLA. Specifically excluded from the availability percentage calculation provided in the SLA is (a) scheduled maintenance, (b) voluntary down periods initiated by a User, (c) down periods due to force majeure events or other events that are not under StaffWizard’s control, (d) internet unavailability, (e) issues associated with User-provided hardware, software and other equipment, (f) down periods resulting from misuse by a User (e.g., an unapproved hack or denial of service attack initiated by a User), and (g) illegal third-party activity (e.g., virus attack or network intrusion attempts). Service Availability and the Services Levels do not apply to third party products. Customer expressly understands that it is solely responsible for obtaining all necessary rights and licenses to the use of any third-party software that may interact with the Services.
  • Security and Access Control. StaffWizard will implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access by physical and electronic intrusion. You agree that StaffWizard will not, under any circumstances, be held responsible or liable for situations (1) where data or transmissions are accessed by third parties through illegal or illicit means or (2) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses or flaws unknown to StaffWizard at the time. StaffWizard will promptly report to you any unauthorized access to Customer Data promptly upon StaffWizard’s discovery.
  • Support Services. StaffWizard will provide the Support Services as forth in the SLA, which include (a) technical support and workarounds so that the Services operate in material conformance with the Documentation and (b) the provision of updates thereto, if and when available. Updates include bug fixes, patches, error corrections, minor and major releases, non-new Platform changes, or modifications or revisions that enhance existing performance. Updates exclude new products, modules, or functionality for which StaffWizard generally charges a separate fee. Customer agrees to report all Support requests through its Designated User(s) to StaffWizard, as specified in the SLA. StaffWizard is under no obligation to provide Support Services with respect to: (1) Services that have been altered or modified by anyone other than StaffWizard or its licensors; (2) Services used other than in accordance with the Documentation; (3) discrepancies that do not significantly impair or affect the operation of the Services; (4) errors or malfunction caused by User or its Users’ failure to comply with the minimum system requirement documentation as provided by StaffWizard or by use of non-conforming data, or (5) errors, delays and malfunction caused by any systems or programs not supplied by StaffWizard, including but not limited to internet access, third-party software integration or interoperability and third-party systems.
  • Professional Services. If you engage StaffWizard for any Professional Services, Customer will make available to StaffWizard certain of Customer personnel, business information and other relevant information as StaffWizard requires in the performance of the Professional Services. Customer will ensure that competent personnel are available during normal working hours to provide information and other support to StaffWizard while providing the Professional Services. Customer acknowledges that the timeliness or provision of Professional Services may be dependent on such Customer’s personnel availability and cooperation.
  • Customer must provide StaffWizard with good faith cooperation and access to such information, facilities, personnel, and equipment as StaffWizard may be require in order to provide the Services, to determine actual usage by a User, and to determine compliance with this Agreement, including, but not limited to, providing security access, information, and software interfaces to Customer’s applications and personnel, as StaffWizard may request. You acknowledge and agree that StaffWizard’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Services. StaffWizard is entitled to rely on all of Customer’s decisions and approvals. Customer will follow the instructions and policies established by StaffWizard from time to time and communicated to you.
  • Third-Party Applications. StaffWizard may offer Customer the ability to use third-party applications in combination with the Platform. Any such third-party application will be subject to your acceptance. In connection with any such third-party application, Customer acknowledges and agrees that StaffWizard may allow the third-party providers access to Customer Data as required for the interoperation of such third-party application with the Platform. The use of a third- party application with the Platform may also require Customer to agree to a separate agreement or terms and conditions with the provider of the third- party application, which will govern Customer’s use of such third-party application.

• RESPONSIBILITIES AND RESTRICTIONS
  • StaffWizard Responsibilities. StaffWizard will provide the Services to Customer during the Term in accordance with this Agreement.
  • Customer Responsibilities. Customer is responsible for all activity that occurs under Customer’s accounts by or on behalf of Customer or a User. Customer agrees to (a) be solely responsible for all User activity, which must be in accordance with this Agreement and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the StaffWizard obligations set forth in the Agreement), (c) obtain and maintain during the Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify StaffWizard promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations.
  • Customer will not (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the Platform or any third-party application or third-party data or content contained therein, (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under the Agreement or the Documentation.
  • Privacy and Data Protection. All Customer Data is subject to the StaffWizard Privacy Policy. In the event you or any Customer Data is sourced from the European Union, or the Services otherwise involve special privacy or data protection provisions (whether applicable in the European Union or otherwise, such as the California Consumer Privacy Act), additional provisions relating to privacy and data protection under the Privacy Policy will apply to this Agreement or Order Form and become a part of this Agreement.
  • Acceptable Use Policy. Customer and all its Users must comply with the requirements of the Acceptable Use Policy. The Acceptable Use Policy outlines unacceptable use of the Platform and Services and is in addition to any other terms and conditions under which StaffWizard provides the Services to you.

• MESSAGING; SOCIAL MEDIA NETWORKS
  • The Platform may provide Users the ability to text or otherwise message supervisors or other Users as part of the Services. All such messaging through the Platform will be subject to the StaffWizard Acceptable Use Policy.
  • Social Media Network Terms of Service. Customer understands and agrees that upon authentication of a Social Media Network account through the Platform, Customer is subject to compliance with the applicable Social Media Network TOS. Customer acknowledges that the Social Media Network TOS govern the collection and use of information submitted by individuals through Social Media Networks and Customer will comply with all Social Media Network TOS. The Social Media Network TOS may change or include new terms and conditions from time to time and Customer (and its Users) will be bound by any such changes or new terms and conditions.
  • No Liability for Social Media Networks or Content. StaffWizard does not control the Social Media Networks and Social Media Network Content is not created or edited by StaffWizard. As such, StaffWizard expressly disclaims and has no responsibility or liability for Social Media Network or Social Media Network Content.

• FEES AND PAYMENT
  • Customer agrees to pay all Fees. Customer agrees to reimburse StaffWizard for all travel and living expenses incurred in the performance of Professional Services, provided that any material expenses will be subject to Customer’s advance approval. Except as otherwise specified in an Order Form, (a) Fees will be quoted and paid in United States dollars, (b) payment obligations are non-cancelable, and (3) Fees paid are non-refundable.
  • Company Purchaser Order. If you require a purchase order, you will provide StaffWizard with a valid purchase order within five (5) days from the execution of the applicable Order Form. Any terms and conditions on any purchase order will not be deemed a part of the Agreement or otherwise binding on StaffWizard whatsoever.
  • Invoicing and Payment. StaffWizard will invoice Customer in accordance with the Order Form. Unless otherwise stated in the Order Form, Fees are due twenty (20) days from the date of the invoice. Customer is responsible for providing StaffWizard with complete, accurate and up to date billing and contact information.
  • Late Fees. If StaffWizard does not receive any Fees by the due date, then at StaffWizard’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
  • Suspension of Services. Except with respect to any disputed Fees, if any Fees are thirty (30) or more days past due, StaffWizard may, without limiting StaffWizard’s other rights and remedies, suspend Customer’s use of the Platform and Services until such amounts are paid in full.
  • Payment Disputes. In order to dispute an invoice and as a condition to withhold any payment, you must notify StaffWizard in writing and provide sufficiently detailed support of the invoice dispute within ten (10) days of your receipt of the invoice. If you fail to do so, you will have waived any right to dispute the invoice and the invoice will be deemed accurate and valid. You must pay the undisputed portion of any disputed invoice.
  • The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature. Customer is responsible for paying all taxes associated with Customer’s purchases hereunder except for those based on StaffWizard’s net income, property, or employee withholdings. Customer may not deduct any taxes from the payments to StaffWizard, except as required by law, in which case the amount payable will be increased as necessary, so that after making all required deductions and withholdings, StaffWizard receives and retains (free from any tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
  • Audit Rights. StaffWizard may audit Customer’s compliance with this Agreement at any time during the Term. Customer must cooperate following any request in connection with such audit. If StaffWizard determines that Customer has allowed unauthorized access to the Services or has otherwise violated any terms of the Agreement, and as a result additional Fees are owed to StaffWizard, StaffWizard will invoice Customer for such unauthorized use and such Fees will be payable pursuant to the terms of the Agreement. The results of any audit will not limit any other rights or remedies of StaffWizard.

• PROPRIETARY RIGHTS
  • StaffWizard Ownership. Subject to any rights expressly granted to Customer in the Agreement, including information presented in any form and any intellectual property rights, StaffWizard and its licensors, as applicable, reserve all rights, title and interest in and to the Platform, the Services, and any attendant intellectual property rights.
  • Customer Ownership and Licenses. As between StaffWizard and Customer, Customer owns all right, title, and interest in and to (a) all Customer Data and (b) any information Customer supplies to StaffWizard. Customer grants StaffWizard a non-exclusive, royalty-free, worldwide right to access and use such information to provide the Services to Customer, and otherwise comply with any governmental obligations concerning Customer Data and any such information.
  • Feedback and Derivative Works. Customer is not required to provide (a) any suggestions, enhancement requests, recommendations, or other feedback or (b) any ideas, technology, developments, derivative works, or other intellectual property related to the Services or any test features, services or products to which Customer is given access. If Customer does so, Customer acknowledges and agrees that all right, title and interest in any such responses and intellectual property rights thereto are deemed assigned to and owned by StaffWizard.

• CONFIDENTIALITY
  • Definition of Confidential Information. “Confidential Information” means all confidential information disclosed by a Party (“Discloser“) to the other Party (“Recipient“), 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. Customer Confidential Information will include Customer Data. StaffWizard Confidential Information includes, but is not limited to, the Platform, information or technology used in connection with the Services, the Agreement and all Order Forms. Confidential Information of each Discloser also includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information, as proven by its records.
  • Protection of Confidential Information. Recipient will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information to its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
  • Protection of Customer Data. StaffWizard will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except (a) to provide the Services, and (b) to prevent or address service or technical problems in connection with support matters, StaffWizard will not modify Customer Data.
  • Compelled Disclosure. Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.

• WARRANTIES AND DISCLAIMERS
  • Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into the Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any disabling code or malware, and (c) it will comply with all Applicable Laws with respect to its rights and obligations pursuant to this Agreement.
  • Customer Warranties. Customer warrants that Customer will: (a) timely and fully perform its obligations under the Agreement; (b) ensure its Users comply with all Documentation provided by StaffWizard and use the Platform and Services in compliance with the Documentation and all Applicable Laws; (c) not alter, recast, revise, modify, translate, reformat, reverse engineer, compile, disassemble or decompile the software for the Platform or any portion thereof, or modify or make derivative works based upon such Platform software, or obtain possession of any source code to such Platform software); (d) make no representations to its Users or third parties regarding the Software or the Services that are not expressly authorized to be made in the Agreement; (e) not sublicense, sell, resell, transfer, assign, distribute, provide as a service bureau, outsource, or software-as-service or otherwise commercially exploit or make available to any third party the Platform or Services in any way; (f) cooperate with StaffWizard in its provision of the Services including providing such technical assistance and information as reasonably requested by StaffWizard; and (h) have licenses for all standard off the shelf third party software used by Customer in connection with its access to the Services. Customer agrees to produce evidence of all such rights and licenses upon StaffWizard’s request.
  • StaffWizard Warranties. StaffWizard warrants that (a) the Platform will perform substantially in accordance with the Documentation, (b) the functionality of the Platform will perform according to the SLA during the Term (excluding any Social Media Networks), and (c) the Support Services and Professional Services will be performed in a professional and workmanlike manner. For any breach of the foregoing warranties, Customer’s exclusive remedy will be as provided herein
  • EXCEPT AS EXPRESSLY PROVIDED HEREIN, STAFFWIZARD MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WHETHER ORAL OR WRITTEN, AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF ACCURACY, IMPLIED WARRANTY OF NON-INFRINGEMENT, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING UNDER ANY UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT THE SERVICES, OR ANY INFORMATION, SOFTWARE, APPLICATION, SERVICES, EFFORTS, OR ANY SYSTEM PROVIDED BY STAFFWIZARD WILL FULFILL ANY PARTICULAR PURPOSES OR NEEDS OF CUSTOMER OR ANY AFFILIATE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, STAFFWIZARD WILL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF CUSTOMER DATA OR INFORMATION PROVIDED BY CUSTOMER, ITS USERS, OR THIRD PARTIES FOR OR VIA THE SERVICES NOR FOR ANY INACCURATE RESULTS DUE TO THE PROCESSING OF ANY SUCH POOR OR INACCURATE CUSTOMER DATA UNDER THE SERVICES. EXCEPT TO THE LIMITED EXTENT OTHERWISE EXPRESSLY PROVIDED UNDER THIS AGREEMENT, STAFFWIZARD MAKES NO GUARANTEE OR WARRANTY OF TIMELINESS OF DELIVERY OF THE SERVICES TO, OR THE PROCESSING OF ANY INFORMATION OR CUSTOMER DATA PROVIDED BY, CUSTOMER OR ITS USERS, OR THAT THE SERVICES WILL BE PROVIDED UNINTERRUPTED OT ERROR-FREE. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT SERVICE FEATURES THAT INTEROPERATE WITH SOCIAL MEDIA NETWORKS DEPEND ON THE CONTINUING AVAILABILITY OF THOSE SOCIAL MEDIA NETWORKS’ APIs AND PROGRAMS FOR USE WITH THE PLATFORM. SERVICES MAY BE IMPACTED, INTERRUPTED OR MAY CEASE IF ANY SOCIAL MEDIA NETWORK CEASES TO MAKE ITS APIs OR PROGRAMS AVAILABLE AT ALL OR ON REASONABLE TERMS OR IF ANY SOCIAL MEDIA NETWORK EXPERIENCES AN OUTAGE, ANY MALFUNCTIONS OR ANY CHANGE IN THEIR SERVICES, PRACTICES OR FUNCTIONALITY.

• INDEMNIFICATION
  • Indemnification by StaffWizard. StaffWizard will defend, indemnify and hold harmless Customer against any claim, demand, suit, or proceeding (“Claim“) made or brought against Customer by a third party alleging that the provision of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party; provided that Customer (a) promptly gives StaffWizard written notice of the Claim, (b) gives StaffWizard sole control of the defense and settlement of the Claim (provided that StaffWizard may not settle any Claim without Customer’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Customer of all liability), and (c) provides to StaffWizard all reasonable cooperation and assistance in defense and settlement of any such Claim, at StaffWizard’s expense. StaffWizard has no obligation to indemnify a Claim if it arises from: (1) Customer Data, (2) materials provided by Customer, or (3) unauthorized modification or use of the Services, or otherwise relating to Customer’s acts or omissions not in accordance with, or in breach of, the terms of this Agreement.
  • Indemnification by Customer. Customer will defend, indemnify and hold harmless StaffWizard against any Claim made or brought against StaffWizard by a third party (a) relating to or arising from Customer’s use of the Services, or use of the Services in violation of this Agreement, or (b) relating to or arising from Social Media Network TOS or any other terms and conditions of a third party agreed to by Customer in connection with, or relating to, the Services; provided that StaffWizard (1) promptly gives Customer written notice of the Claim, (2) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without StaffWizard’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases StaffWizard of all liability), and (3) provides to Customer all reasonable assistance cooperation and assistance in defense and settlement of any such Claim, at Customer’s expense.
  • Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section.

• LIMITATIONS OF LIABILITY AND DAMAGES
  • Limitation of Liability. EXCEPT FOR (A) DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
  • Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, ITS SUBSIDIARIES, OR ITS ASSOCIATED COMPANIES, BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES, OR ANY THIRD PARTY FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR COSTS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE PROVISIONING, USE OR PERFORMANCE OF OR INABILITY TO USE THE SERVICES, DOCUMENTATION, OR ANY PORTION THEREOF, LOSS OF DATA, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THE AGREEMENT, EVEN IF SUCH PARTY, ITS AFFILIATES, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR ITS USERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
  • Limitation of Claims. No action arising out of the Agreement, regardless of form, may be brought by either Party or any third party more than one (1) year after the date the cause of action accrued.

• TERM AND TERMINATION
  • Term of Agreement. The Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Order Forms under the Agreement or (b) the termination of the Agreement in accordance with this Section. Upon termination of the Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Services. Upon termination of any Order Form, the Services provided pursuant to such Order Form will cease and Customer must stop using such Services. If any Order Form has a Term of more than twelve (12) months, in the event StaffWizard or any of its licensors determine to materially change or cease offering any material element of the Services, StaffWizard may effect such change or cessation following reasonable notice thereof to Customer and the relevant Order Form will be amended to reflect such change.
  • Automatic Renewal. Subscriptions for the Services commence on the Order Date specified in the applicable Order Form and continue for the subscription Term specified therein, unless otherwise terminated. Except as otherwise specified herein or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one (1) year (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the end of the applicable Term or Renewal Term.
  • Termination for Cause. A Party may terminate this Agreement or any applicable Order Form for cause: (a) upon 30 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period, (b) immediately for material violations of confidentiality obligations, or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  • Termination for Convenience. StaffWizard may terminate this Agreement upon thirty (30) days prior written notice to Customer.
  • Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect. Upon any termination for cause by Customer, and subject to any amounts due and owing to StaffWizard as of the date of termination, StaffWizard will refund Customer a pro-rata portion of any prepaid Fees for the Services that cover the remainder of the Term after the effective date of termination and a pro-rata portion of any prepaid Professional Services or Support Services Fees that have not been delivered as of the effective date of termination. Upon any termination for cause by StaffWizard, Customer will pay any unpaid Fees covering the remainder of the Term of all subscriptions under the applicable Order Forms after the effective date of termination and for any Support Services and Professional Services provided up to the date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to StaffWizard for the period prior to the effective date of termination.
  • Downloading of Customer Data. During any Term under an Order Form, on a rolling 24-month basis (unless otherwise provided in any Order Form) and for the period 30 days after termination or expiration of the Agreement or the applicable Order Form, Customer may download Customer Data used in connection with such Order Form, in comma separated value (.csv) format, using the tools of the Platform. After expiration of the applicable rolling 24 month or 30-day period, StaffWizard will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete, or make permanently unreadable all Customer Data in StaffWizard systems or otherwise in StaffWizard possession or under StaffWizard control.

• DISPUTE RESOLUTION, GOVERNING LAW & NOTICES
  • Dispute Resolution; Governing Law. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to the Agreement will be brought in the state or federal courts located in Dallas, Dallas County, Texas. The Parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement will be governed by the laws of the State of Texas, excluding choice of law principles. [IF APPLICABLE: Notwithstanding the above, for Customers headquartered in the European Union Economic Area, as set forth in the Order Form, claims or causes of action relating to this Agreement will be brought in the courts of England and Wales and the Parties agree to submit to the exclusive personal jurisdiction of such courts. For such Customers, this Agreement will be governed by the English law, excluding choice of law principles.]
  • Waiver of Jury Trial. The Parties waive the right to a trial by jury.

• NOTICES

Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder will be in writing and will be deemed to have been given upon: (a) delivery by traceable courier, (b) upon delivery via mailing (confirmed receipt signature/return receipt requested), or (c) the second business day after sending by confirmed facsimile. Notices to StaffWizard will be addressed to the CEO at StaffWizard’s headquarters address set forth on the Order Form, or in the case of Customer, sent to the address and contact set forth on the Order Form, or as designated from time to time in writing by the Parties. Billing-related notices will be addressed to the relevant billing contact designated by Customer on the Order Form.

• GENERAL PROVISIONS
  • No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any Order Form and no statement or other information made or provided orally or otherwise will be binding unless specifically set forth in an Order Form.
  • Export Compliance. Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports or otherwise restricted from doing business with any U.S. company, and Customer will not access or use the Services in violation of any U.S. or international export embargo, prohibition or restriction.
  • Force Majeure. Neither Party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, pandemic, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labor disputes or governmental demands or restrictions.
  • Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
  • No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
  • Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the 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, the provision will 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 of this Agreement will remain in effect.
  • Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of StaffWizard. Notwithstanding the foregoing, Customer may assign this Agreement in its entirety (including all Order Forms) upon notice to StaffWizard, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
  • Order of Precedence. To the extent of any conflict or inconsistency between the provisions in the body of the Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
  • Entire Agreement. The Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement or any Order Form will be effective unless in writing and signed by each Party.

Date modified:  July 23, 2021