Master subscription agreement.

Last Updated on December 16, 2021
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This Onwards HR Master Subscription Agreement (“MSA”) is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between Onwards HR Inc., a Delaware corporation with a place of business at 3423 Piedmont Road NE, Atlanta, Georgia 30305 (“Onwards HR”), and the customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.

Section 1.

Services. The “Services” mean the products and services that are ordered by Customer from Onwards HR in an Order Form referencing this MSA . Services exclude any products or services provided by third parties, even if Customer has connected those products or services to the Services. Subject to the terms and conditions of this MSA, Onwards HR will make the Services available to Customer during the Term.

‍Section 2. Fees and Payment.‍

‍2.1. Fees. Customer will pay the fees specified in the Order Form (the “Fees”).

‍2.2. Payment; Taxes. Onwards HR will invoice Customer for Fees, either within the Services or directly, within thirty (30) days of the Effective Date or otherwise as specified in the Order Form. Customer will pay all invoiced Fees net forty-five (45) days from the date of the invoice. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Customer, except for taxes on Onwards HR based on Onwards HR’s income or receipts. 

‍Section 3. Term and Termination.‍

‍3.1. Term and Renewal. This MSA commences on the Effective Date and will remain in effect through the term specified in the Order Form, and will renew as specified in the Order Form unless otherwise terminated in accordance with this Section (collectively the “Term”). If the Order Form does not specify, the Term will be one year and will automatically renew for successive one-year periods unless Customer provides Onwards HR with notice of termination at least forty five(45) days prior to the end of the Term.

‍3.2. Termination for Cause. A Party may terminate this MSA for cause (a) upon notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately by Onwards HR if Customer makes one of the Prohibited Uses below. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice, and any violation of the Prohibited Uses clause below will be considered material breaches of this MSA.

‍3.3. Effect of Termination and Survival. Upon termination of an Order Form or this MSA (a) with respect to termination of the entire MSA, all Order Forms will concurrently terminate, (b) Customer will have no further right to use the Services under the terminated or canceled Order Forms and Onwards HR will remove Customer’s access to same, and (c) unless otherwise specified in writing, Customer will not be entitled to any refund of fees paid. The following Sections will survive termination: Section 2 (Fees and Payment), Section 5 (Confidentiality), Section 6.2 (Data Practices-Ownership), Section 8 (Intellectual Property Rights), Section 9.3 (Disclaimers), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 12 (Miscellaneous). Termination of this MSA will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA. 

‍Section 4. Ownership, License, and Use of the Services.‍

‍4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (“Intellectual Property Rights”). Onwards HR will retain Intellectual Property Rights in the Services and all components of, or used to, provide the Services or created by the Services or by Onwards HR in the course of providing the Services (the “Services Information”). Customer will retain Intellectual Property Rights in all information it provides to Onwards HR as part of this MSA (other than Feedback as described below), including but not limited to in the course of its use of the Services (the “Customer Information”). 

‍4.2. Feedback. Customer may, under this MSA, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Onwards HR (the “Feedback”). Customer provides Onwards HR a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback. Onwards HR also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback.

‍4.3. Licenses. Onwards HR hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to and license to access and use the Services as set forth in the Order Form all subject to the terms and conditions of this MSA and the Order Form. Customer hereby grants Onwards HR a non-exclusive, non-transferable, non-sublicensable right and license to use the Customer Information solely to provide the Services to Customer. 

‍4.4. Authorized Users. Customer may designate and provide access to the Services to employees, agents, or authorized contractors (each an “Authorized User”). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of this MSA by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Onwards HR of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this MSA by Customer.

‍4.5. Prohibited Uses. Customer and Authorized Users will not: (a) “frame,” distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Onwards HR any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Onwards HR Competitor; or (i) extract information from the Services in furtherance of competing with Onwards HR. A “Onwards HR Competitor” is any entity that provides the same or similar goods and services to those provided to Onwards HR, as would be determined by a commercially reasonable individual. 

‍Section 5. Confidentiality. If the parties have a separate mutual nondisclosure agreement, that agreement will control (the “Separate MNDA”). Otherwise, as used herein, the “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information and Customer Information are Confidential Information under this MSA, or confidential under the Separate MNDA, as applicable. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of Onwards HR, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. 

‍Section 6. Privacy and Security Practices. Onwards HR operates the Services and handles Customer information, pursuant to our Privacy Policy (the “Privacy Policy”). Onwards HR’s current security and data protection practices are set forth in our Security Statement (the “Security Statement”).

‍Section 7. Representations, Warranties, and Disclaimers.‍

‍7.1. Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.

‍7.2. Warranties. Onwards HR warrants that during an applicable Term (a) the Security Statement accurately describes the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Information; and (b) the Services will perform materially in accordance with any applicable documentation provided to Customer. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Section 3 (Term and Termination) herein. 

‍7.3. Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND Onwards HR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT Onwards HR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM Onwards HR OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA. THE PARTIES ADDITIONALLY AGREE THAT Onwards HR WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CLIENT’S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CLIENT IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE. 

‍Section 8. Indemnification.‍

‍8.1. Indemnification by Onwards HR. Onwards HR will indemnify and hold Customer harmless from any third party claim against Customer arising out of Customer’s use or purchase of the services as permitted hereunder alleging that such Services infringe or misappropriate a third party’s valid patent, copyright, trademark, or trade secret. Onwards HR will, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Onwards HR for such defense, provided that (a) Customer promptly notifies Onwards HR of the threat or notice of such claim; (b) Onwards HR will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Onwards HR will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent); and (c) Customer fully cooperates with Onwards HR in connection therewith. If use of a Service by Customer has become, or, in Onwards HR’s opinion, is likely to become, the subject of any such claim, Onwards HR may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Onwards HR, terminate this MSA and repay, on a pro-rata basis, any Fees previously paid to Onwards HR for the corresponding unused portion of the Term for related Services. Onwards HR will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Services by anyone other than Onwards HR; or (z) the combination, operation or use of the Services with other hardware or software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Onwards HR to Customer and constitute Customer’s sole remedy with respect to an infringement claim brought by reason of access to or use of a Service by Customer or Authorized Users. 

‍8.2. Indemnification by Customer. Customer will indemnify and hold Onwards HR harmless against any third party claim arising out of (a) Prohibited Uses in breach of this MSA as set forth above; or (b) alleging that Customer Information infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret; provided (i) Onwards HR promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by Onwards HR without prior written consent); and (iii) Onwards HR fully cooperates in connection therewith.

‍SECTION 9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF THE PROHIBITED USES SECTION ABOVE, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS MSA, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF Onwards HR), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS MSA OR THE SERVICES REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS MSA OR THE SERVICES WILL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; PROVIDED THAT LIABILITY UNDER THE PARTIES’ INDEMNIFICATION OBLIGATIONS OR FOR BREACHES OF CONFIDENTIALITY WILL NOT IN THE AGGREGATE EXCEED TEN TIMES THAT AMOUNT; AND FURTHER PROVIDED THAT LIABILITY FOR DAMAGES DUE TO PROHIBITED USES UNDER THIS MSA WILL BE UNCAPPED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Onwards HR WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. Onwards HR HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS MSA. 

‍Section 10. Miscellaneous.‍10.1. Entire Agreement. This MSA, any active Order Forms, and the Separate MNDA, if applicable, constitute the entire agreement, and supersedes all prior agreements, between Onwards HR and Customer regarding the subject matter hereof.

‍10.2. Assignment. Either Party may, without the consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets provided that (1) the other Party is provided prior notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

‍10.3. Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.

‍10.4. Relationship of the Parties. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

‍10.5. Notices. All notices provided by Onwards HR to Customer under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Customer on the Order Form, or (b) electronic mail to the electronic mail address provided for Customer’s account owner. Customer must give notice to Onwards HR either in writing by Courier or U.S. mail to PO Box 3081 Alpharetta, GA 30023 Attn: Legal Department or by email to legal@Onwards HR.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

‍10.6. Governing Law, Jurisdiction, Venue. This MSA will be governed by the laws of the State of Georgia, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in a court of general jurisdiction in Fulton County, Georgia. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Services by Customer, its agents, or Authorized Users.

‍10.7. Export Compliance. The Services and other software or components of the Services that Onwards HR may provide or make available to Customer are subject to U.S. export control and economic sanctions laws as administered and enforced by the Office of Foreign Assets and Control of the United States Department of Treasury. Customer will not access or use the Services if Customer or any Authorized Users are located in any jurisdiction in which the provision of the Services, software, or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer will not provide access to the Services to any government, entity, or individual located in any Prohibited Jurisdiction. Customer represents and warrants that (a) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it will not permit any individuals under its control to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) it will comply with all applicable laws regarding the transmission of technical data exported from the United States and the countries in which it and Authorized Users are located.

‍10.8. Anti-Corruption. Customer represents and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Onwards HR’s employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to Onwards HR.

‍10.9. Publicity and Marketing. Onwards HR may use Customer’s name, logo, and trademarks solely to identify Customer as a client of Onwards HR on Onwards HR’s website and other marketing materials and in accordance with Customer’s trademark usage guidelines. Onwards HR may share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes to develop and promote Services. Onwards HR never will disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer or any identifiable individual as the source of the information.

‍10.10. Amendments. Onwards HR may amend this MSA from time to time, in which case the new MSA will supersede prior versions. Onwards HR will notify Customer not less than ten (10) days prior to the effective date of any such amendment and Customer’s continued use of the Services following the effective date of any such amendment may be relied upon by Onwards HR as consent to any such amendment. Onwards HR’s failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.