Master Subscription Agreement

This Master Services Agreement (“Agreement”) is made and entered into by and between PeopleAdmin, Inc. (“Company”) a Delaware corporation, and Customer. PeopleAdmin offers access to its system which assists Customer in automating certain human resources administrative tasks (the “System”). The PeopleAdmin Systems is offered as a software as a service (SaaS) which is centrally hosted by PeopleAdmin and accessed by the Customer remotely via the web.

1.                     Services . During the term of this agreement, provided timely payment of the applicable fees, Company shall (i) provide Customer access to the System modules listed on any applicable Order Form (SaaS Services), along with associated Support (Support Services) and (ii) perform any professional services, including, but not limited to, implementation, training and other consulting services (Professional Services), listed on any applicable Order Form(s) and described in any attached Statement of Work (“SOW”). SaaS Services and Professional Services are referred to herein as the “Services”.Customer authorizes Company to provide the Services and agrees to pay the associated fees as set forth in the attached Exhibits and additional Exhibits or SOWs as the parties may agree to from time to time.

a.         SAAS Subscriptions .  Company will provide to Customer access to the System modules listed on any Order Form(s) for the Subscription term indicated therein. Access to the SaaS Services is limited to the version of the System in Company’s production environment. Company regularly updates the SaaS Services and reserves the right to add and/or substitute functionally equivalent features from time to time at its sole discretion. Company will provide Customer online access to and use of the SaaS Service via the Internet by use of a Company-approved Customer -provided browser.  The Service will be hosted on a server that is maintained by Company or its designated third party supplier or data center.

2.                     Affiliates. “Affiliate” means any entity including, but not limited to, a corporation, company, partnership, LLC/LP or joint venture that directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with a party. Control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, regardless of percentage, by contract or otherwise.

 

a.         Affiliates of either party may execute and Order Form and/or enter into a SOW under this Agreement. The contracting Affiliate assumes the rights, privileges, protections and responsibilities of the original contracting party under this Agreement with respect to the applicable SOW. The contracting Affiliate, and not the original contracting party, will be solely liable for its obligations (including payment) and liability of any name or nature under the Order Form or  SOW. A party will assert any claim arising out of or related to the Order Form or SOW (including, but not limited to, execution, inducement to enter into, performance, non-performance, or breach) only against the contracting Affiliate.

 

3.                     Term and Termination. This Agreement shall be effective for the period of time indicated on the applicable Order Form ("Initial Term") and shall automatically renew for successive one year terms ("Renewal Terms") at the fee then in effect for the option selected by the Customer, unless terminated as set forth herein. .The Effective Date for the Initial Term is upon Company’s notification to Customer of completion of the implementation of the SaaS Subscription set forth on the Order Form. Either party may terminate this Agreement, for any reason, with at least ninety (90) days’ prior written notice to the other party, with such termination to be effective at the end of the Initial Term or any Renewal Term as applicable.

 

4.                     Billing and Payment.   Fees are due to Company no later than 30 days following the date of execution of the Order Form.  Interest accrues on past due balances at the lesser of a 1½% per month or the highest rate allowed by law.  If Customer fails to make timely payments of any undisputed fees, Customer shall be in material breach of the Agreement.  In the event of such payment breach, Company will be entitled to suspend any or all Services upon 10 days written notice to Customer and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Company. Payment of fees is under no circumstances subject or conditioned by the delivery of future products or functionality not otherwise set forth in the Agreement. PeopleAdmin will submit an invoice for the subsequent term’s Service Fee, plus the applicable annual fee increase, to Customer at least sixty (60) days before the expiration of the Initial Term or any Renewal Term.  If an undisputed amount owed by Customer for the Initial Term, or any subsequent Renewal Terms becomes more than sixty (60) days past due, Customer’s access to the PeopleAdmin System may be interrupted until payment is received.

a.         Taxes .Unless expressly provided otherwise, the prices in the Agreement do not include taxes. Customer agrees to pay any taxes, other than those based on Company’s net income, arising out of the Agreement.  If Customer is tax-exempt, Customer agrees to send Company a copy of its tax-exempt certificate upon execution of this Agreement.Customer agrees to indemnify Company from any liability or expense incurred by Company as a result of Customer’s failure or delay in paying taxes due.

5.                     Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use; (b) not violate or tamper with the security of any Company computer equipment or program;. If Company has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Company may suspend the Services immediately with or without notice to Customer. Company may terminate the Agreement as contemplated in Section 3 if Customer fails to adhere to the foregoing acceptable use standards.

a.         Customer is solely responsible for obtaining and maintaining at its own expense all equipment needed to access the SaaS Services. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the data it submits to the Services.

b.         No Liability for Customer Procedures . Company carries out procedures specified solely by Customer, and Company expressly denies all liability for Company’s implementation of Customer’s procedures including, but not limited to, Customer’s hiring and screening criteria and any of Customer’s practices that are discriminatory or otherwise in violation of applicable law.  Customer is solely responsible for determining the scope and extent of the Services provided by Company, and Customer is entirely responsible for reviewing the Services provided by Company on Customer’s behalf to ensure compliance with Customer’s procedures.  Company makes no attempt to determine or advise as to whether the Customer’s procedures comply with any statutory or regulatory requirements, including but not limited to any statutory or regulatory requirements related to hiring, employment, race, color, ancestry, religion, citizenship, gender, sexual orientation, age, marital status, pregnancy, veteran status, national origin, disability, or any federal, state or local statutes governing the employer/employee relationship.  To the extent, however, that Customer’s procedures or criteria clearly violate any of these laws, PeopleAdmin reserves the right to refuse to implement such procedures or criteria.  Company also will not be liable for Customer’s failure to comply with applicable laws, regulations, or Customer’s own privacy policy (if any) or for loss of data.

c.         Customer is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user.Customer is entirely responsible for any and all activities that occur under Customer’s account. Customer agrees to immediately notify Company of any unauthorized use of Customer's account or any other breach of security known to Customer. Company shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements. PeopleAdmin will maintain Customer’s passwords as confidential and will not disclose them to third parties.

6.                     Warranty and Disclaimer. Company warrants that the services will be performed in all material respects in accordance with the services policies referenced in the applicable SOW or Order Form.

COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERUPTED, OR THAT PEOPLEADMIN WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PEOPLEADMIN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

 

THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES. COMPANY HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE.

7.                      Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNITY OBLIGATIONS, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID TO PEOPLEADMIN BY CUSTOMER DURING THE PREVIOUS TWELVE (12) MONTHS.

8.                     Confidential Information. . “ Confidential Information ” means any proprietary or confidential information that at the time of disclosure is marked as “proprietary” or “confidential,” is reasonably identifiable as the disclosing party’s proprietary or confidential information, or should reasonably be considered as proprietary or confidential under the circumstances of disclosure. Confidential Information includes Customer’s job applicant information, personnel data, and hiring criteria, Customer’s and Company’s forms, Company’s software used to provide the System, and the terms of this Agreement.  Each party agrees that it (i) will not copy or use any of the other party’s Confidential Information in any way, except as permitted by this Agreement or as required to achieve the purposes of this Agreement, (ii) will not disclose any of the other party’s Confidential Information to any third party, except to that party’s attorneys and accountants who need to know such information and who are subject to confidentiality obligations at least as stringent as those in this Agreement, and (iii) will protect the other party’s Confidential Information as well as it protects its own information of a similar nature using at least reasonable care.  The receiving party may disclose the Confidential Information of the disclosing party in response to a valid court order, law, or other governmental action, provided that, to the extent permitted by law, (i) the disclosing party is notified in writing before disclosure of the information and given a reasonable opportunity to obtain a protective order, and (ii) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt to limit or prevent the disclosure of the Confidential Information. Information is not Confidential Information if a party can clearly show that it (i) became known to the receiving party prior to receipt from the disclosing party, (ii) has become publicly known, except through breach of this Agreement, or (iii) is independently developed without reference to Confidential Information.

a.         Injunctive Relief . In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.

 

9.                      Customer Responsibility. Customer is solely responsible for the content of communications transmitted by Customer using the Services, and shall defend, indemnify and hold harmless Company from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications. Customer is not permitted to resell the Services. Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs. Customer is responsible for establishing designated points of contact to interface with PeopleAdmin.

10.                  Rights Granted. Subject to the terms of this Agreement, Company grants Customer a limited, non-exclusive, personal, non-transferable right to access the Services during the Term of this Agreement solely for internal use.Customer shall not (i) sell, market, rent, sub-license, or license any aspect of PeopleAdmin System or Intellectual Property or otherwise use the Services for any purpose other than as specifically provided in this Agreement, (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the System in whole or in part, for competitive purposes or otherwise, (iii) allow access to, provide, divulge or make available the System to any user other than those who have licenses to access; (iv) write or develop any derivative works based upon the System; (v) modify, adapt, translate or otherwise make any changes to the System or any part thereof; (vi) use the System to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without Company’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the System or (viii) remove from the System identification, patent, copyright, trademark or other notices or circumvent or disable any security devices functionality or features. Customer obtains no ownership rights or any other rights in the Intellectual Property or the PeopleAdmin System, other than those specified in this Agreement.  Customer grants Company a limited license to use Customer’s transactional and performance data related to Customer’s use of the Services (e.g., statistical information about the number of job applications processed) solely on an aggregated and de-identified basis as part of Company’s overall statistics for marketing and analytical purposes, provided that PeopleAdmin does not reveal Customer’s job applicant information, personnel data, or hiring criteria.

11.                   Customer Data. All data is owned by Customer and is to be strictly held as confidential. PeopleAdmin will delete and destroy all copies of data once the Agreement is terminated with or without default. Customer has the option to receive a backup of data prior to deletion per section 10. All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to PeopleAdmin. Any modification to the Software performed by Customer directly or indirectly extending the current capabilities shall be the property of Company and all copyrights and other rights are hereby assigned to Company.

 

12.      General Provisions.

a.         This Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the parties and shall be binding on the parties when accepted by Customer. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party. No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon PeopleAdmin or effective for any purpose, unless accepted by PeopleAdmin in writing

 

b.         It is further expressly understood and agreed that, there being no expectations to the contrary between the parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, Company’s industry or between the parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.

 

c.           Independent Contractor .  The relationship of Company and Customer established by this Agreement is that of independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct or control the day‑to-day activities of the other, (ii) establish Company as a hiring or human resources consultant to Customer, (iii) establish the parties as partners, franchisee-franchiser, co‑owners or otherwise as participants in a joint or common undertaking, or (iv) otherwise give rise to fiduciary obligations between the parties.

 

d.         Neither this Agreement nor any right or obligation hereunder shall be assigned or delegated, in whole or part, by either party without the prior express written consent of the other, which shall not be unreasonably withheld and for which no additional consideration shall be necessary; provided, however, that either party may, without the written consent of the other, assign this Agreement and its rights and delegate its obligations hereunder to an Affiliate, or in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction. Any purported assignment in violation of this section shall be void. Subject to this section, this Agreement is binding upon and is for the benefit of the parties and their respective successors and permitted assigns.

 

e.         If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

13.                  Waiver. No delay or failure of Company or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Company or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.

 

14.                  Force Majeure. Except for payment of fees, non-performance by either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

 

15.                  Governing Law. This Agreement shall be governed by and construed in according with the laws of the State of Texas without regard to its conflict of laws principles. All actions, suits, or legal proceedings arising out of or related to this Agreement will be brought only in the federal or state courts located in Travis County, Texas and the parties consent to the exclusive jurisdiction of such courts.

 

16.                  Entire Agreement. This Agreement, including any executed SOWs or Order Forms, is the complete and exclusive statement of the mutual understanding of the parties and supersedes any and all previous written and oral agreements, negotiations, and communications relating to its subject matter. This Agreement and any SOWs may only be modified or amended in a writing signed by both parties.