Last Updated: June 10, 2020
This Truework Master Services Agreement (“Agreement”) is entered into by and between Customer and Zethos, Inc., a Delaware corporation (“Truework”). This Agreement governs Customer’s acquisition and use of Services provided by Truework. Capitalized terms have the definitions set forth herein.
BY ACCEPTING THIS AGREEMENT, EITHER BY (I) CLICKING “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX INDICATING ACCEPTANCE OF THIS AGREEMENT) AT THE TIME CUSTOMER REGISTERS FOR THE SERVICES OR (II) PLACING AN ORDER, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF CUSTOMER’S ACCEPTING THIS AGREEMENT (THE “EFFECTIVE DATE”).
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1.1 Applicable Laws and Regulations means all federal, state, provincial, regional, territorial and local laws, opinions, interpretive letters and official releases of or by any government, or any authority, department or agency thereof or self-regulatory organization, that relate to the processing of personal data or the confidentiality, security or protection of personal data, including but not limited to, any Laws in the European Union enacted by a Member State in response to the GDPR, the California Consumer Privacy Act and the Fair Credit Reporting Act (“FCRA”)
1.2 Current Customer Employee Count means a good faith estimate of the number of Customer employees’ data that are to be processed by the Services.
1.3 Customer means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
1.4 Customer Data means the non-public data provided by Customer to Truework to enable Truework’s provision of the Services.
1.5 GDPR means “Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.”
1.6 Order Form means any Truework ordering documentation or online sign-up, order page(s), or subscription flow that specifies the Services to be provided hereunder and references this Agreement.
1.7 Proprietary Information means business, technical, or financial information relating to a disclosing party’s business, including Customer Data. Proprietary Information of Truework includes non-public information regarding features, functionality, and performance of the Service.
1.8 Representatives means a party and its affiliates and its and their directors, officers, employees, agents, consultants or advisors
1.9 Security Breach means a (i) “personal data breach” (as defined in the GDPR) or (ii) any other event that compromises the security, confidentiality, or integrity of Customer Data.
1.10 Services means the Truework products and services that are provided to Customer by Truework or otherwise ordered by Customer under an Order Form.
1.11 Technical Support means the support services provided by Truework to Customer to assist in the use of the Services.
1.12 User means a legal person that Customer authorizes to administer the use of the Services.
2.1 Services Use. Subject to the terms of this Agreement, Truework will use commercially reasonable efforts to provide Customer the Services pursuant to this Agreement. Truework hosts the Services either directly or subcontracted through a third-party hosting provider.
2.2 License to Customer Data. Customer grants Truework a non-exclusive, worldwide, royalty-free, fully paid-up right and license to use, copy, process, modify and transmit the Customer Data in connection with providing the Services to Customer as outlined in this Agreement. Customer agrees that (i) the quality of the Services depends on the quality of the Customer Data, and (ii) Truework will not assume any responsibility for or undertake to verify the accuracy or completeness of the Customer Data provided by Customer, except as required by Applicable Law.
2.3 Customer Data Disclosure Limitations. Truework shall not use or disclose the Customer Data, except (a) in performance of the Services or as otherwise permitted herein; (b) as required to provide Technical Support to Customer; or (c) as required by Applicable Laws and Regulation, provided that Truework will provide reasonable advance written notice to Customer designed to permit Customer to oppose any such disclosure.
2.4 CCPA. To the extent that Customer Data constitutes “personal information,” as that term is defined in California Civil Code Section 1798.140(o), Customer warrants that Customer Data is disclosed to Truework for the business purpose of allowing Truework to provide the Services to Customer. Truework shall not: (i) sell Customer Data; (ii) retain, use, or disclose Customer Data for a commercial purpose other than providing the Services; nor (iii) retain, use, or disclose the Customer Data outside of the agreements between Customer and Truework.
2.5 HIPAA. Customer is not a Covered Entity as defined by 45 C.F.R. 160.103.
2.6 Services Support. Subject to the terms hereof, Truework will use reasonable efforts to provide Customer with Technical Support for the Services. Truework will use reasonable efforts to respond to Technical Support requests within one (1) business day, provided that Customer makes any such request following the procedure described on the Truework website.
2.7 Users. As part of the registration process, Customer will identify an administrative username and related password for Customer’s Truework account. Truework reserves the right to refuse registration of or cancel passwords it deems inappropriate. Customer is responsible for the acts and omissions of all Users, as well as for all access to and use of the Services by any third-party logging in under a username registered to Customer. Customer acknowledges that Customer’s access information, including usernames and passwords, will be Customer’s “key” to the Services; accordingly, Customer will be responsible for maintaining the confidentiality of such access information. Customer will: (i) notify Truework promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another User or provide false identity information to gain access to or use the Services.
2.8 Security/Data Integrity. Truework and Customer will maintain reasonable administrative, physical, and technical safeguards designed to preclude the interception and maintain the confidentiality of Customer Data. Upon Customer request and mutual execution of a non-disclosure agreement, Truework will provide a report summarizing its current data security certifications. A party experiencing an actual or suspected Security Breach shall notify the other party without undue delay after becoming aware of such breach, and in no event less than 24 hours after it became aware of such an event. Such Security Breach notification shall at least describe the nature of the Security Breach including where possible, the categories and the approximate number of data subjects concerned and the categories and the approximate number of personal data records concerned; describe the likely consequences of the Security Breach; and describe the measures taken or that the breached party proposes to take to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.
3.1 Customer Employee Reporting. Customer shall provide Truework with a Current Customer Employee Count upon entering into this Agreement.
3.2 Services Restrictions. Customer will neither directly nor indirectly (a) knowingly interfere with the performance of the Services; (b) disrupt the integrity or performance of the Services or the Customer Data, or (c) attempt to gain unauthorized access to the Services or its related systems or networks.
3.3 Requirements and Permitted Use. Customer represents, covenants, and warrants that (a) Customer will use the Services only in compliance with all Applicable Laws and Regulations; and (b) the Customer Data and any other data that Customer provides in connection with the Services is true and accurate to the best of Customer’s knowledge.
3.4 Furnisher. Customer acknowledges that it is a “Furnisher” under the FCRA. The current “Furnisher Notice” is available at www.truework.com/static/notices/furnishernotice.pdf.
4.1 Proprietary Information. Each party (a “Receiving Party”) understands that the other party (a “Disclosing Party”) has disclosed or may disclose Proprietary Information to the other party. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and use at least the same degree of care as is would use to protect its proprietary information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information, except to its Representatives who need to know to provide the Services. The Receiving Party’s Representatives must be bound by obligations of confidentiality substantially similar to those of this Agreement. The Receiving Party shall be liable for the acts and omissions of its Representatives. The Disclosing Party agrees that the preceding shall not apply to any that the Receiving Party can document (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives, or (b) was in its possession or known by it before receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by Applicable Laws and Regulation. For clarity, Customer Data transmitted to Truework to be processed by the Services is not subject to the preceding exceptions. In the event of disclosure is compelled by Applicable Laws and Regulations, the Receiving Party shall (x) promptly notify the Disclosing Party in writing; (y) consult with and assist the Disclosing Party, at the Disclosing Party’s expense, to attempt to obtain an injunction or other appropriate remedy to prevent such disclosure; and (z) reasonable cooperate with the Disclosing Party, at the Disclosing Party’s expense, to obtain a protective order or other reliable assurance that confidential treatment will be accorded to any Proprietary Information that is so disclosed.
4.2 Ownership. Customer shall own all right, title, and interest in and to the Customer Data. Truework shall own and retain all right, title, and interest in and to, including intellectual property rights, (a) the Services, and all improvements, enhancements or modifications to them, (b) all documentation and materials it makes available in connection with the Truework Services. No rights or licenses are granted except as expressly set forth herein.
5.1 Services Fees. If Customer has purchased a subscription or has otherwise agreed to pay any fees in an Order Form, Customer will pay Truework the then applicable fees described in the Order Form following the terms therein (the “Fees”), and Customer agrees that Truework may bill Customer’s credit card or other payment methods for Fees or any applicable charges. Undisputed fees shall be paid by Customer within thirty (30) days of receipt of an invoice or a later time that such Fees are due as specified in the Order Form. Truework reserves the right to change the Fees or applicable charges and to institute new Fees with thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Truework has billed Customer incorrectly, Customer must contact Truework no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared to receive an adjustment or credit.
5.2 Taxes. Customer shall be responsible for all taxes associated with its purchase and use of the Services other than U.S. taxes based on Truework’s net income.
6.1 Term. The term of this Agreement will commence on the Effective Date and continue until Customer’s account is terminated as set forth below.
6.2 Termination. Customer may terminate Customer’s account at any time through the account management tools made available through the Services. Truework may terminate or suspend Customer’s account in the event Customer commits any material breach of any provision of this Agreement and fails to fix that breach within five (5) days after written notice of that breach. Truework may also terminate or suspend Customer’s account immediately for cause if: (a) there is reason to believe Customer’s use of the Services is fraudulent or negatively impacting the operating capability of Truework; (b) Truework determines, in its sole discretion, that providing the Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (c) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceedings. If Truework suspends Customer’s account, Truework will make a reasonable attempt to notify Customer. If Truework suspends Customer’s account, Truework will make a reasonable attempt to notify Customer. Truework may also terminate Customer’s access to any component of the Services and/or Customer’s account for any reason or no reason; provided that if Customer has subscribed to any portion of the Services, in Truework’s election, either (i) such termination will be effective upon expiration of Customer’s subscription or (ii) Truework will provide Customer with a pro rata refund of prepaid Fees for unearned Services. Except as expressly set forth above, no refund will be provided in the event of any suspension or termination of Customer’s account or access to any component of the Services.
6.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including Section 3 (Restrictions and Responsibilities), the terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination, and Section 10 (Miscellaneous) below.
6.4 Data Destruction. Upon termination or expiration of the Agreement, Truework will destroy all Customer Data in its possession, provided that Truework will retain Customer Data and any related records if Truework discloses Customer Data to third parties in connection with the Services.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER’S USE OF THE SERVICES, INCLUDING ANY INFORMATION, GUIDANCE, RECOMMENDATIONS OR RESULTS PROVIDED IN CONNECTION WITH THE SERVICES IS AT CUSTOMER’S SOLE RISK. FURTHERMORE, CUSTOMER UNDERSTANDS THAT THE SERVICES RELY ON THE INFORMATION PROVIDED BY CUSTOMER, CUSTOMER’S EMPLOYEES OR THIRD PARTIES, AND TRUEWORK DOES NOT INDEPENDENTLY VERIFY SUCH INFORMATION. TRUEWORK DOES NOT WARRANT THAT (A) THE SERVICES WILL BE TIMELY OR ERROR-FREE, (B) THE RESULTS OR INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (C) THE QUALITY OF THE SERVICES OR ANY INFORMATION OR DATA PROVIDED IN CONNECTION WITH THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. TRUEWORK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
Customer will indemnify, defend and hold harmless Truework against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to Customer’s activities under this Agreement or Customer’s use or misuse of the Service (“Claim”). Truework will cooperate as reasonably required in the defense of any such claim, at Customer’s expense. Truework reserves the right, at Customer’s expense, to retain separate counsel for itself in connection with any such Claim or, if Customer has not responded reasonably to such Claim, to assume the exclusive defense and control of such Claim. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Truework in connection with any Claim. Customer will also be liable to Truework for any costs and attorneys’ fees Truework incurs to successfully establish or enforce Truework’s right to indemnification under this Section.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL TRUEWORK BE LIABLE TO CUSTOMER FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF TRUEWORK HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (II) DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
10.1 Legal Provisions. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Each party may not assign this Agreement except with the other party’s prior written consent, except that either party may assign this Agreement as a whole to an affiliate or a successor to substantially all of its assets or business related to this Agreement, provided that if Customer assigns this Agreement, the employees covered by the Services will be limited to those employees of Customer that were employees immediately before the closing of the transaction that resulted in such assignment. This Agreement is the complete and exclusive statement of the mutual understanding of the parties. It supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. This Agreement creates no agency, partnership, joint venture, or employment, and each party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. Any notices required or permitted to be given under this Agreement will be given in writing and have been properly given: when received if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Customer must be sent to Customer’s email as set forth in Customer’s account information. Notices to Truework must be sent to the following address: Zethos, Inc., 325 Pacific Avenue, San Francisco, CA 94111, Attn: Ethan Winchell. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. Neither party is liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
10.2 Publicity. Customer agrees that Truework may refer to Customer in Truework marketing materials and web site.