This Master Human Resources Online Portal and Professional Services Subscription  Agreement (the “Agreement”) and any applicable exhibits, schedules, statements of work, or addenda hereto, dated as of the “Effective Date,” is made and entered into by and between HR Konnect, LLC, a California Limited Liability Company, dba Konnect, with offices located at 530 Technology Drive, Suite 243, Irvine California 92618 ("Service Provider") and your company ("Customer" and together with Service Provider, the "Parties", and each a "Party").

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WHEREAS, Service Provider has the capability and capacity to provide a variety of Human Resources (“HR”) support services including, without limitation, the “Online Portal Subscription Services” and the “Professional Subscription Services” described in Section 1 below (hereinafter collectively referred to as the “Services”); and

 

WHEREAS, Customer desires to retain Service Provider to provide certain Services offered by Service Provider as described in each Statement of Work (each, a “SOW”) entered into between the Parties, and Service Provider is willing to perform such Services, under the terms and conditions set forth in each SOW and this Agreement;

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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1. Services.

 

1. 1 Online Portal Subscription Services.

(a) Provision of Online Portal Subscription Service. Service Provider will make certain “software-as-a-service” and other HR-related online service offerings available to Customer through its online portal including, without limitation, Service Provider’s Learning Management System,  to which Customer may subscribe pursuant to an SOW (the “Online Portal Subscription Service”). An  Online Portal Subscription Service includes any maintenance and support services offered by Service Provider to its customers generally as part of the relevant subscription, if any, but excludes implementation, configuration, consulting and other “Professional Subscription Services” (as defined in Section 1.2 below).

 

(b) Customer Authorized Users. Customer may provide access to, and use of, the Online Portal Subscription Service to its “Authorized Users” (as defined below) or allow them to receive the Professional Subscription Services; provided that, all such access, use and receipt by such Authorized  Users is subject to and in compliance with the SOW and this Agreement and Customer will at all times remain liable for its Authorized Users’ compliance with the SOW. For purposes of this Agreement, the term Authorized Users means Customer’s employees, consultants, clients, external users, contractors, agents or other third parties authorized to use the Online Portal  Subscription Service by Customer and have been assigned unique user identifications and passwords for access to and use of the Online Portal  Subscription Services.

 

(c) Customer Responsibilities and Use Restrictions. Customer is responsible for its and its Authorized User’s  use of the Online Portal Subscription Service in compliance with this Agreement and applicable law and  Customer will (i) be responsible for any unauthorized access to or use of the Online Portal Subscription Service, and notify Service Provider immediately of any such unauthorized access or use; and (ii) cooperate with any reasonable investigation by Service Provider of any outage, security problem or suspected breach of the Agreement by any such Authorized User or other third party. Customer will not, and will not permit its Authorized User, to Customer will not (i) use or access the Online Portal Subscription Service in violation of applicable laws, rules and regulations, including data privacy laws and regulations; (ii) sell, resell, license, lease, redistribute, or otherwise commercially exploit or make the Online Portal Subscription Service available to any third party other than to Users, or as otherwise expressly stated in an SOW or this Agreement; (iii) use the Online Portal Subscription Service to send or store infringing or unlawful material; (iv) attempt to gain unauthorized access to, or intentionally disrupt the integrity or performance of, the Online Portal Subscription Service or the data contained therein; (v) duplicate or reverse engineer the Online Portal Subscription Service, in whole or in part; or (vii) permit or assist any other party to do any of the foregoing.  Service Provider or any third party host or provider of the Online Portal Subscription Service may monitor use thereof to verify compliance with the terms of the SOW and this Agreement and by use thereof Customer on behalf of itself and its Authorized Users consents to such monitoring. Customer will respond to any reasonable inquiries from Service Provider or such third party host or provider to assess and verify such compliance.

 

1.2 Professional Subscription Services.

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(a)   Provision of Professional Subscription Services. Service Provider will make certain HR-related professional support services offerings available to Customer currently through a “core subscription,” “premium subscription” or “build your own” subscription-based models which include support services such as  HR compliance, strategic planning, counseling, project management, systems implementation, compensation analysis and review, recruitment, employee life-cycle management, policy development and training, talent assessment, diversity and inclusion compliance, leadership development, and other HR matters as described in each SOW entered into that describe the core, premium or customized HR professional support services to be performed by Service Provider (the “Professional Subscription Services”). If providing Professional Subscription Services on Customer premises, Service Provider personnel will comply with any reasonable Customer rules and regulations regarding safety and conduct which have been made known in writing in advance to Service Provider.  

 

(b) Service Provider Obligations. Service Provider shall:

      (i) Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:

 

(A) A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the "Service Provider Contract Manager"); and

 

(B) A number of employees, contractors or other third party providers or subcontractors that it deems sufficient to perform the Services set forth in each Statement of Work (collectively, with the Service Provider Contract Manager, "Provider Representatives"), provided that such Provider Representatives are qualified individuals with suitable education, training and skills to provide the Professional Subscription Services. In this regard, Service Provider will determine, in its sole discretion which of its Provider Representatives are assigned to perform the Professional Subscription Services, and may reassign any Provider Representative during the term of an SOW, including, without limitation, upon the resignation, termination, death, or disability of an existing Provider Representative; or at the reasonable request of Customer, in which case Service Provider shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.

 

(ii) Additionally, Service Provider may use affiliates, subcontractors and other third parties in the performance of any of the Services, provided that no such use of affiliates, subcontractors or other third parties will relieve Service Provider of its obligations.

 

(iii) Maintain reasonably complete and accurate records relating to the provision of the Services under this Agreement. Nothing contained herein shall be deemed to grant Customer  or any third party, by implication, estoppel or otherwise, any right to inspect or examine any of Service Provider’s data, documents, instruments, records, software, systems, premises or plants related to or in any way connected with the Services and Service Provider shall have no duty to disclose any financial statements, balance sheets, or any other business records to Customer, Customer’s representatives or any third party which may request same.

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(c ) Customer Obligations. Customer shall:

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(i) Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the "Customer Contract Manager"), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.

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(ii) Require that the Customer Contract Manager respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services.

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(iii) Cooperate with Service Provider in its performance of the Services and provide access to Customer's premises, systems, employees, contractors, information and equipment as required to enable Service Provider to provide the Services.  Service Provider shall not be liable for any delays to the extent caused by any failure or delay by Customer to fulfill its obligations under any SOW; inaccurate information provided by Customer; Customer-requested changes to the scope of the Services under a SOW; changes in Customer personnel; or (v) other factors beyond Service Provider’s reasonable control.

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(iv) Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Provider's provision of the Services.

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1.3  Customer Acknowledgment.  Customer acknowledges that (i) Professional Subscription Services purchased hereunder are ordered separately from any Online Portal Service; and (ii) Customer may acquire rights to use the Online Portal Service without purchasing Professional Subscription Services and vice versa.

2. Statements of Work. Service Provider shall provide to Customer the agreed upon Services set out in one or more SOWs executed by each Party from time to time. Any tangible work product including, without limitation, any documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf Customer by the Service Provider in the course of performing the Services or otherwise resulting from the performance of the Services, including any items identified as such in the Statement of Work that is required to be delivered to Customer by Service Provider shall be deemed a “Deliverable.” Service Provider shall have no obligation to provide Services or deliver Deliverables that are not specified in a SOW. The details of the method and manner for performance of the Services by the Service Provider shall be under its own control, Customer being interested only in the results thereof. Any additional or conflicting terms or conditions contained in an SOW from those contained in this Agreement will be disregarded, null and void, and the terms of the Agreement will govern all SOWs.

 

3. Change Orders. Customer may submit written requests to Service Provider to change the scope of any of the Services described in a SOW each such request, a “Change Order Request”). If Service Provider elects to consider a Change Order Request, then Service Provider will promptly notify Customer if Service Provider believes that the Change Order Request requires an adjustment to the fees or to the schedule for the performance of the Services. In such event, the Parties agree to negotiate in good faith a reasonable and equitable adjustment to the fees and/or schedule, as applicable. Service Provider will continue to perform Services pursuant to the existing SOW and will have no obligation to perform any Change Order Request unless and until the Parties have agreed in writing to such an equitable adjustment. Any such adjustment shall be reflected in a new or amended written SOW signed by each of the Parties.

 

4. Acceptance of Deliverables. Unless otherwise specified in an SOW, all Professional Subscription Services and Deliverables are deemed accepted by Customer upon receipt. If the SOW specifies that a Deliverable is subject to acceptance testing, then following Service Provider’s delivery of such Deliverable, Customer will have seven (7) calendar days (or such other time period as may be specified in the SOW) (“Acceptance Period”) to accept or reject such Deliverable, provided that such Deliverable will be deemed accepted on the earlier of (a) when such Deliverable passes the acceptance criteria specified in the SOW (“Acceptance Criteria”), (b) when Customer makes productive use of such Deliverable, or (c) as of the last day of the Acceptance Period if Customer: (i) does not expressly accept the Deliverable within the Acceptance Period; or (ii) fails to notify Service Provider that it is rejecting the Deliverable, or fails to specify the basis for that rejection, within the Acceptance Period. If a Deliverable fails to substantially comply with the Acceptance Criteria, Customer may reject the Deliverable by notice to Service Provider within the Acceptance Period, specifying the basis for the rejection and a precise description of the defect(s) found. Immaterial defects are not grounds to withhold acceptance. Service Provider will have a reasonable period to rework and resubmit a rejected Deliverable, and the Acceptance Period will reset on notification by Service Provider that the rectified Deliverable is ready for acceptance testing.

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5. Fees and Expenses.

 

5.1 Fees. Unless otherwise provided in the applicable Statement of Work, fees for the applicable Services contracted for pursuant each Statement of Work are billed by Service Provider on the 15th of each month and are due by the 1st of the following month. In addition to all other rights and remedies available to Service Provider under this Agreement and at law, if any invoice is not paid within seven (7) days of its due date, Service Provider has the right to suspend Services. All fees are non-refundable, except as otherwise expressly provided for herein.

 

5.2 Expenses. Customer shall reimburse Service Provider for all expenses incurred in accordance with the Statement of Work at the same time as fees are paid pursuant to Section 5.1. Expenses will be charged on a pass-through basis without markup or margin applied. Any individual expenses in excess of $500 shall be accompanied by receipts and reasonable supporting documentation.

 

5.3 Taxes. Customer is responsible for paying all taxes which may include state, local, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental taxes or assessments of any nature including, without limitation, value-added taxes, sales, use, goods and services, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed on the Online Portal Subscription Service, Professional Subscription Services and any other services provided by Service Provider to Customer (“Taxes”), except that Service Provider is responsible for paying all Taxes imposed on Service Provider’s income, property, and employees. If Service Provider has a legal obligation to pay or collect Taxes for which Customer is responsible under any SOW or this Agreement, the appropriate amount shall be computed based on Customer’s address listed on the SOW, and invoiced to and paid by Customer, unless Customer provides Service Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. Invoiced fees exclude, and may not be reduced to account for, Taxes.

 

5.4 Late Payment. Customer may not withhold or offset fees due to Service Provider. If Customer fails to timely pay invoiced amounts, Service Provider may, without limiting its other rights and remedies, temporarily suspend all Services without liability if the Customer fails to pay any amounts/fees when due hereunder and such failure continues for ten (10) days following written notice thereof until all such amounts are paid. All late payments shall bear interest at the lesser of the rate of 10% per month or the highest rate permissible under California law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.

 

6. Limited Warranty and Limitation of Liability.

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6.1 Authorization/Execution. Each Party represents to the other Party that it has full authority to enter into this Agreement and each applicable SOW and to perform its respective obligations hereunder and thereunder.

 

6.2 Service Provider’s Warranties. Service Provider warrants that:

 

(a) It shall perform the Services in accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement.

 

(b) The Professional Subscription Services will be performed in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services.

 

(c)  The Online Portal Subscription Services will conform in all material respects to the functional specifications, user guidelines and other specific terms of use set forth in the Service Provider’s online specific terms of use and online user guides for the Online Portal  Subscription Service, which may be updated by Service Provider from time to time.

 

(d)  Notwithstanding anything to the contrary contained in this Agreement or in any SOW, no representations or warranties by Service Provider apply to any “Free Trial Service” which may be provided by Service Provider to Customer at any time during the period of time for which the Services or the Online Portal Subscription. For purposes of this Agreement, the term “Free Trial Service” means any product, service, software, application, or function that Service Provider makes available to Customer to try at Customer’s option, at no charge, which is designated as beta, pilot, preview, trial, evaluation, free trial, test, or by other similar designation.

 

6.3  Warranty Disclaimers. THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT CONSTITUTE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SERVICE PROVIDER WITH RESPECT TO THE SERVICES AND THE DELIVERABLES. SERVICE PROVIDER MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR THE DELIVERABLES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICE PROVIDER DOES NOT WARRANT THAT THE ONLINE PORTAL SUBSCRIPTION SERVICE WILL BE ERROR FREE OR UNINTERRUPTED.

 

6.4  Customer’s Sole and Exclusive Remedies.

 

(a) Customer shall promptly (and in any event within thirty (30) calendar days of the performance of the relevant Services or delivery of any Deliverables) notify Service Provider of any non-conformance of such warranty, specifying in reasonable detail the manner in which Service Provider has failed to conform to the warranty in Section 6.2. If Service Provider confirms the non-conformity, Service Provider will: (a) correct or reperform any nonconforming elements of the impacted Service(s) and/or Deliverable(s)  (or in the case of the Online Portal Subscription Service, deployment of a corrected version of the non-conforming Online Portal Subscription Service, or provision of a workaround) at no charge to Customer so that they conform to the warranty; and (b) if Service Provider is unable to provide such remedy after using commercially reasonable efforts, provide a refund of the fees paid for the nonconforming elements of the impacted Service(s) and/or Deliverable(s). Immaterial defects shall not be deemed to be a breach of any of Service Provider’s warranties under Section 6.2 above.

 

(b)  If, in Service Provider’s opinion, any of the Services and/or Deliverables becomes (or is likely to become) the subject of a claim of infringement of any third party's intellectual property rights, Service Provider may, at its option and at no cost to Customer: (a) procure for Customer the right to continue to use the impacted Service and/or Deliverable; (b) replace or modify the impacted Service and/or Deliverable to make it non-infringing and functionally equivalent; or, only if neither of the foregoing remedies can be provided under commercially reasonable terms, seek the remedy outlined in Section 6.4(c) below.

 

(c) Only if Service Provider fails to provide any of the remedies outlined in Sections 6.4 (a) or (b) above, as applicable, after using commercially reasonable efforts within a reasonable time (but no more than thirty 30 days) after Customer's written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.2 below. In the event the Agreement is terminated pursuant to this Section, Service Provider shall, within thirty 30 days after the effective date of termination, refund to Customer any pre-paid fees paid by the Customer as of the date of termination for the impacted Service(s) and/or Deliverable(s), less a deduction equal to the fees for receipt or use of such Deliverable(s) and/or Service(s) up to and including the date of termination on a prorated basis.  The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty 30 days after delivery of such Service or Deliverable to Customer.

 

6.5 Exceptions. Service Provider shall have no liability under this Agreement for any claims or losses to the extent arising from (a) combining the Service or Deliverable with products, applications, deliverables, services or processes not provided by Service Provider; (b) Customer Data; (c) modifying or altering the Service or Deliverable; (d) Customer continuing any infringing activity after being notified of the alleged infringement; or (e) using the Service not in accordance with the documentation or in breach of the applicable SOW or this Agreement.

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7. Proprietary Rights.

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7.1 Service Provider Ownership. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any Deliverables (except for any Confidential Information of Customer or customer materials shall be owned by Service Provider, subject to Service Provider).

 

7.2 License to Intellectual Property Rights in Deliverables Service Provider hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Customer Ownership. Customer retains all right, title and interest in and to all Customer written or electronic materials, information or data submitted by Customer to Service Provider for use in connection with the Services (the “Customer Data”). Customer is responsible for the acquisition, accuracy and legality of Customer Data. This Agreement does not grant Service Provider any ownership rights to Customer Data.

 

7.3 Personal Identifiable Information. In the course of the provision of the Services, Service Provider may have access to certain information that can be used to distinguish or trace an individual’s identity, such as name and social security number, alone, or when combined with other personal and identifying information which is linked or linkable to a specific individual, such as date, place of birth, mother’s maiden name, etc. (“PII”) of Customer’s. If Service Provider has access to, collects or otherwise Customer discloses to Service Provider Customer’s PII, Service Provider shall (i) limit access to such Customer’s PII to its Provider Representative(s) who need access to such Customer PII only necessary to perform the Services required under the particular SOWs; and (ii) implement commercially reasonable administrative, technical and physical safeguards to help protect against unauthorized access to or disclosure of such PII. Moreover, each Party acknowledges and agrees that (i) it will not disclose, transmit or otherwise use such PII except as necessary to fulfill its respective obligations under this Agreement, or as expressly set forth in its respective privacy policy; and (ii) each Party has certain ownership and use rights in the same or similar PII provided to it by the end user and such PII will be and remain the separate confidential and proprietary information of that Party and subject to each Party’s respective policies. Moreover, Customer will ensure that all of its PII will be encrypted or otherwise safeguarded when transferred to Service Provider and Service Provider will use such PII solely for the purpose of providing the Services, supporting the Service Provider’s platform, and for the limited purposes set forth in this Agreement, unless otherwise authorized by Customer in writing.

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7.4 Retrieval on Termination. For a period of 30 days following expiration or termination of the term of the Online Portal Subscription Service, Service Provider will, upon request, at Service Provider’s then prevailing rate, make available for download a file of Customer Data in the current format in which it is stored on Service Provider’s platform. After such 30-day period, Service Provider will have no obligation to maintain or provide any Customer Data and will thereafter (unless legally prohibited) delete all Customer Data in its systems or otherwise in its possession or under its control.

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7.5 Statistical Information. Service Provider will collect and use quantitative data derived from the performance, use, and operation of the Services, together with Customer Data on an anonymized basis, to provide, maintain, support, develop, and improve the Service and for Service Provider machine learning, artificial intelligence technologies and analytics; provided that in no event will Service Provider (a) disclose Customer Data in a non-aggregated form, or (b) incorporate Customer Data in a form that could identify Customer, Customer Data or any individual.

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7.6 Feedback. If Customer or its Authorized Users decide in their sole discretion to provide  (the “Feedback”), Service Provider will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any such Feedback into its products and services. Service Provider has no obligation to use Feedback. Customer has no obligation to provide Feedback.

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8. Confidentiality. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party employees (or in the case of Service Provider, any of its Provider Representatives) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

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If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.

 

Notwithstanding anything to the contrary in this Agreement, Receiving Party shall be entitled to retain, for legal archival purposes to evidence its compliance with this Agreement, and copies of electronically exchanged Confidential Information held in backup systems in accordance with its routine information technology backup process; provided that, in each case, such retained Confidential Information remains subject to the confidentiality obligations set forth herein.

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9. Term and Termination for Breach, Remedies.

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9.1 Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the expiration of all “Subscription Terms” specified in all Statements of Work, unless sooner terminated pursuant to Section 9.2. For purposes of this Agreement, “Subscription Term” means the fixed term, if any, for the applicable Service(s) set forth in each SOW, including renewals and extensions, if any.

 

9.2 Termination for Breach.

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(a) The non-defaulting Party may terminate an SOW, effective upon written notice to the other Party (the Defaulting Party”) if the Defaulting Party breaches any material term thereunder and fails to cure such breach within thirty (30) days after written notice from the non-breaching party (or if such breach cannot be corrected through the exercise of reasonable diligence within such 30-day period, if the Defaulting Party does not commence to correct such failure within such 30-day period and thereafter diligently prosecute same to completion). Such written notice shall specify in detail the alleged material breach.

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(b) The non-defaulting er Party may terminate this Agreement, effective upon written notice to the "Defaulting Party"), if the Defaulting Party:

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(i) Breaches any material term of this Agreement, and such breach is incapable of cure, or if capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.

 

(ii) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) business days after filing.

 

(iii) Is dissolved or liquidated or takes any corporate action for such purpose.

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(iv) Makes a general assignment for the benefit of creditors.

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(v) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

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(c) Notwithstanding anything to the contrary in Section 9.2(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (i) and such failure continues for seven (7) days after Customer's receipt of written notice of nonpayment; or (ii) more than two (2) times in any three (3) month period.9.3  

 

9.3  Remedies for Breach. Except as otherwise expressly prohibited or limited by this Agreement, each Party shall be free  (without restriction as to the number of times it may seek) damages, costs and remedies that may be available under this Agreement or applicable law or in equity and shall be entitled to offset the amount of any damages and costs obtained in a final determination of monetary damages or costs (as permitted by this Agreement) against the other Party against any amounts otherwise due to such other Party under this Agreement.

 

9.4 Survival. The rights and obligations of the Parties set forth in Sections 1.1(b) and (c), and in Sections 4 through 26 (for any periods limited in any such provisions), and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

 

9.5 Effect of Termination. Upon termination or expiration of an Online Portal Subscription Service SOW, Service Provider will terminate access to the applicable Online Portal Subscription Service, and all rights and licenses granted to Customer by Service Provider pursuant to the SOW and this Agreement thereto shall terminate immediately.

 

9.6 Transition Services. Upon expiration or termination of the Online Portal Subscription Services, Customer may request that Service Provider provide transition services to facilitate the orderly transfer of Customer Data to Customer or its designee. Transition services will be provided at Service Provider then-current professional services rates. Online Portal Subscription Service fees will be payable during the transition period to the extent Customer requests Service Provider maintain the Customer Data beyond the period specified in the SOW.

 

9.7 Arbitration. The Parties agree to use all reasonable efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations, the Parties are unable to resolve the dispute, the Parties agree that, except as expressly stated herein, any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in San Francisco County before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the industry. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either Party may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision. The prevailing party in any arbitration or other legal action related to this Agreement is entitled to recover its reasonable attorneys’ fees and costs from the other Party.

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10. Limitation of Liability.

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10.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL SERVICE PROVIDER OR ANY SERVICE PROVIDER REPRESENTATIVE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

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10.2 UNLIMITED LIABILITY. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT A PARTY’S LIABILITY FOR: DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S NEGLIGENCE; ITS FRAUD OR FRAUDULENT MISREPRESENTATION; ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; OR LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.

 

11. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.

 

12. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 12.

 

Notice to Customer:

[CUSTOMER NAME]

[CUSTOMER ADDRESS]

 

Attention: [TITLE OF OFFICER TO RECEIVE NOTICES]

Email: EMAIL OF OFFICER TO RECEIVE NOTICES

 

Notice to Service Provider:

HR Konnect, LLC

530 Technology Drive, Suite 243

Irvine California 92618

Attention: Customer Experience

Email: customerexperience@hrkonnect.com

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13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to/the court may] modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

14. Amendments. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

 

15. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

16. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement, including by virtue of any merger or corporate reorganization which may be deemed an assignment, without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider's assets without Customer's consent.

 

17. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

 

18. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

19. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

20. Choice of Law. This Agreement and all related documents, including all SOWs,  and all matters arising out of or relating to this Agreement and all SOWs, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.

 

21. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Northern District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in the City and County of San Francisco, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Northern District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in the City and County of San Francisco. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each Party waives any right to jury trial in connection with any dispute arising out of or related to this Agreement. Notwithstanding the foregoing, each Party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed in their entirety.

 

22. Injunctive Relief. Any breach of Sections 1.2(c) or 8 will result in irreparable and continuing damage for which there will be no adequate remedy at law. Each Party is entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.

 

23. Export Control Laws. The Services and any associated technical data are subject to U.S. export control laws and regulations and may be subject to export or import laws and regulations in other countries. Service Provider authorizes use of the Services and associated technical data only with third party software and hardware obtained and used in compliance with export control laws and regulations. Service Provider and Customer, on behalf of itself and its Authorized Users, represents that it/they is/are not named on the U.S. Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons or on any other U.S. Government lists of denied or sanctioned parties. Service Provider and Customer, on behalf of itself and its Authorized Users, represents that it/they shall comply with applicable export control laws and regulations in providing and using the Services. Without limiting the foregoing, Customer will not and will not permit its Authorized Users to access and use the Services if they are: (i) located in a country that is subject to a U.S. government embargo; (ii) listed on any U.S. government list of prohibited or restricted parties; or (iii) otherwise in violation of any U.S. export law or regulation.

 

24. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. This Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

25. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or other potential disaster or catastrophe, such as an epidemic or pandemic,  or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other  events beyond the control of the Impacted Party.

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The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of more than ninety (90) consecutive days following written notice given by it under this Section 25, the other Party may thereafter terminate this Agreement upon thirty (30) days' written notice. Service Provider’s sole liability shall be to refund any unused pre-paid Service fees, if any, for the period after the effective date of termination.

 

26. Conflict.  In the event of a conflict between this Agreement or any SOW, the terms of this Agreement shall control.

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[Signature Captured on SOW]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.

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