Last Updated: October 15, 2021
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, SUBSCRIPTION, STATEMENT OF WORK, OR SIMILAR, 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 Data means the non-public data provided by Customer to Truework to enable Truework’s provision of the Services.
1.4 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.”
1.5 Go Live Date means the date after which any required integration work between Customer’s systems and the Services is substantially completed to allow the Services to function as described in the Services documentation.
1.6 Implementation Services means the consulting services provided by Truework to enable the Integration Technology, as described in an Order Form or a Statement of Work.
1.7 Integration Technology means the software and the know-how provided by Truework to Customer that enables the transmission, storage, and processing of Customer Data by Truework.
1.8 Order Form means a document executed by both parties that details the subscriptions purchased by Customer, including the subscription quantities, subscription start, and end dates. If the parties execute multiple Order Forms related to this Agreement, each Order Form will each have a unique identification, and each such Order Form will form a separate contract between the parties.
1.9 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.
1.10 Representatives means a party and its affiliates and its and their directors, officers, employees, agents, consultants or advisors.
1.11 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.
1.12 Technical Support means the support services provided by Truework to Customer to assist in the use of the Services.
1.13 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 described in the Order Form that expressly incorporates the terms of this Agreement. Truework hosts the Services either directly or subcontracted through a third-party hosting provider.
2.2 Integration Software Licenses. Truework grants to Customer during the Services Term the worldwide, non-exclusive, limited, non-transferable, royalty free right to use any Integration Technology provided by Truework for the sole and exclusive purpose of enabling Customer’s use of the Services.
2.3 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.
2.4 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.
2.5 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.
2.6 Services Support. Subject to the terms hereof, Truework will use reasonable efforts to provide Customer with Technical Support for the Integration Technology and 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. The customer shall provide Truework with a Current Customer Employee Count upon execution of the Agreement, and on every anniversary of the Order Form.
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 Integration Technology, 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.
6.1 Term/Termination. Unless earlier terminated as set forth below, the Agreement will continue while there is an active subscription or SOW. If this Agreement or has not otherwise terminated early, each subscription described in an Order Form will continue for the Service Term and will be automatically renewed for additional periods of the same duration as the initial Service Term (collectively, the “Service Term”). Either party may provide the other party with written notice of non-renewal of such subscription no less than sixty (60) days before the expiration of the then-current Service Term. Either party may terminate this Agreement (or any relevant Order Form) upon the other party’s material breach that remains uncured for thirty (30) days following written notice. Truework reserves the right to modify or discontinue offering any portion or version of the Services effective as of the conclusion of Customer’s then-current Service Term.
6.2.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 as required by Applicable Law and Regulation, including the Fair Credit Reporting Act, 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.
8.1 Indemnification. Each party will defend the other party and its officers, directors, contractors, affiliates, and agents, against any third-party claim, demand, suit or proceeding (“Claim”) alleging that the party violated Applicable Laws and Regulations, and each party will indemnify and hold harmless the other party from any damages, attorney fees, and costs finally awarded to such third-parties as a result of, or for any amounts paid under a settlement of such Claim made following the terms of Section 8.2 (Indemnification Procedure).
8.2 Indemnification Procedure. Any claim for indemnification hereunder requires that the indemnified party (i) promptly give the indemnifying party written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim, provided that the indemnifying party may participate in the defense of the Claim with counsel of its choosing at its own expense and further provided that the indemnified party shall not be responsible for any settlement that it does not approve in writing, such approval not to be unreasonably withheld and (iii) give the indemnifying party all reasonable assistance, at indemnifying party’s expense.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (A) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR INTENTIONAL ACTS, BODILY INJURY TO A PERSON, (B) A PARTY’S INDEMNITY OBLIGATIONS OR (C) A BREACH OF SECTION 4.1 (PROPRIETARY INFORMATION) TO THE EXTENT NOT RELATED TO A SECURITY BREACH, EACH PARTY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (D) FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (E) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (F) FOR ANY AMOUNTS THAT EXCEED $100,000 IN AGGREGATE, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE PRECEDING, ANY LIMITATION IN THIS SECTION 9 DOES NOT INCLUDE CUSTOMER’S PAYMENT OBLIGATIONS ARISING FROM 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. All notices under this Agreement must be 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. 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 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 website.