Terms and Conditions
These Terms and Conditions (Terms) are incorporated by reference into each Order Forms (“Order Form”) by and between Namely, Inc. (on behalf of itself and its affiliates, “Namely”) and the entity identified in such Order Form (on behalf of itself and its Affiliates, the “Client”). Each of Namely and the Client are referred to herein as a “Party” and collectively as the “Parties”. These Terms, each Order Form, and, if applicable, the Data Processing Agreement, Subscription Services Terms, and the Supplemental Services Terms, as well as any Exhibits attached to each Order Form referencing these Terms are collectively referred to as the “Agreement.”
1. Definitions
“Active Resource” means a profile of an individual (including, for example, of an employee, contractor, or partner) on the Namely Platform. For Namely’s Human Resources application an Active Resource is any active user in the billing term, for the Payroll application an Active Resource is a unique user that was paid in the billing term, and for the Benefits Administration application an Active Resource is a benefits employee user during the billing term.
“Active Resource Fee” means the amount Namely shall charge Client, at the beginning of each billing term, for the amount of Active Resources maintained by Client at the time of accrual for the Platform or Services on a per employee, per month basis.
“Affiliate” means, with respect to any entity, any other present or future entity, controlling, controlled by, or under common control with such entity For the purposes of this definition, control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of the power to solely direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract, or otherwise.
“Aggregate Data” means the anonymous statistical and usage data derived from Client Data that is used in aggregated combination with other anonymous data. Aggregate Data shall not contain any personal information as defined by applicable privacy regulation.
“Client Data” means any proprietary or confidential content, information, data, or materials, including End User Data and Confidential Information, which is provided to or processed by Namely in connection with the provision of the Platform or Services. Client Data shall not include Aggregate Data as provided herein.
“Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business plans, services, payroll and benefits related information, information relating to the Disclosing Party’s employees, business practices, pricing, technology, software, product plans, and other information which by its nature is information that would reasonably be considered to be confidential information of the Disclosing Party, including information marked as “confidential” or some other proprietary designation.
“Documentation” means Namely’s user guides, manuals, and knowledge articles regarding usage of the Platform and related Services.
“End User Data” means all data and information collected from a Client’s employees or authorized end user, including, without limitation, any personal information as defined by applicable privacy laws and regulations hereunder.
“Go-Live Date” means: (a) for the Platform, the earlier of: (i) the date Account Administrator (as defined herein) first logs into the Platform; or (b) ten (10) days from the date Namely provides written confirmation of login credentials to the Account Administrator; (b) for payroll related Subscription Services (as provided on the applicable Order Form), the date Client submits to Namely its first payroll run in the Platform; (c) for the Benefits Administration Subscription Services (as provided on the applicable Order Form), ten (10) days from the date Account Administrator is notified by Namely of login credentials to the Benefits Administration application; and (d) for the Time related Subscription Services (as provided on the applicable Order Form), ten (10) days from the date Account Administrator is notified by Namely of login credentials to the Time application.
“Implementation Services” means the data migration, implementation, integration (e.g., APIs), and any other onboarding services as provided in an Order Form that Namely will complete to enter, import, or otherwise provide for the entry of data into the Namely Platform and the provision of Services.
“Intellectual Property” means any and all algorithms, application programming interfaces (APIs), apparatuses, concepts, Confidential Information, data, databases and data collections, deliverables, designs, Documentation, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing plans, marks (including brand names, logos, and slogans), methods, procedures, processes, software code (in any form including source code and executable object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any applicable jurisdiction (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred herein.
“Order Form” means a Namely provided ordering document for the provision of the Namely Platform, Subscription Services, Supplemental Services, or other Services to be provided by Namely to Client.
“Order Form Effective Date” means the date of Client’s signature or written endorsement on the applicable Order Form.
“Order Start Date” means the Start Date as provided on the applicable Order Form.
“Platform” means Namely’s proprietary application(s), software and/or website, including all functions, and features identified in an Order Form or otherwise made available by Namely to Client, and all technology resources and infrastructure (e.g., hardware, third party software, etc.) supporting the Services. The Platform shall include all updates, releases, improvements and corrections to the Platform as provided by Namely.
“Services” means collectively the Subscription Services and the Supplemental Services to be provided by Namely to Client in accordance with this Agreement.
“Start Count” means: (a) during the Initial Term of any Order Form, the number of Active Resources indicated on the corresponding Order Form; or (b) during any Renewal Term, the number of Active Resources in use by Client at the start of such Renewal Term or fifty (50) Active Resources, whichever is higher.
“Subscription Services” means the services identified on an Order Form and as further described in the Subscription Services Addendum. Subscription Services do not include Supplemental Services.
“Supplemental Services” means the services identified on an Order Form or other similar ordering documents and as further described in the Supplemental Services Addendum. Supplemental Services do not include Subscription Services and are subject to additional fees as provided in the Supplemental Services Terms.
“Third Party Services” means the services sold separately from Namely’s Professional and Subscription Services and sold exclusively pursuant to third party terms and conditions as provided in the third party supplemental URL, available at: https://www.namely.com/third-party/.
2. Subscription Services and Platform
2.1 Provision of Platform and Subscription Services. Subject to the provisions of this Agreement, Namely will make available to Client and its designated Affiliates and their end users on a non-exclusive and non-transferable basis: the Platform, Services, and Documentation in accordance with the applicable Order Form. Unless expressly provided otherwise, Namely will be responsible for: (i) hosting, operating, maintaining, and supporting the Platform and in accordance with the Platform SLA; (ii) providing standard support at no additional charge; and (iii) making available and implementing upgrades, enhancements, and error corrections when such upgrades, enhancements, and error corrections are generally made available.
2.2 Order Forms. These Terms are incorporated by reference into the initial Order Form and any subsequent Order Form(s), including all attachments thereto. If Client seeks to request additional Services or in some cases to access the Platform (e.g., post-termination access), the authorized representatives of the Parties shall execute a new Order Form. Any such Order Form shall be effective upon execution by Client. In the event of a conflict between these Terms and any active Order Form, the Order Form shall supersede.
2.3 Access and Usage. Client shall be solely responsible for providing its own internet access to the Platform. Namely may specify reasonable procedures in the Documentation according to which Client and end users may establish and obtain such access to, and use of the features and functions of the Platform and Services through the internet, including without limitation, provision of passwords, connectivity standards and protocols, or other relevant procedures. Subject to the terms of this Agreement, Namely hereby grants to Client the non-transferable (except as may otherwise be permitted in this Agreement), non-exclusive, non-sublicenseable, limited ability to access and use the Platform and Services in accordance with the applicable Order Form(s), Documentation, and other provisions of this Agreement. Third Party Services shall be provided solely in accordance with such Third Party Terms.
2.4 Account Administrator(s). As part of the Implementation Services, Client shall provide to Namely the name of a primary designee who will have specialized access to Client Platform including the ability to determine Client account internal permissions, the provisioning of Client’s end users, and other elevated access and permissions (“Client Administrator”). Client Administrator shall be responsible to maintain the Active Resource count of permissioned end users, and shall be a trusted contact designee to advise Namely on account related matters. Client Administrator may delegate responsibilities via the Namely Platform to other trusted contacts (each a “Trusted Contact” and, collectively, the “Trusted Contacts”) who may authorize Platform and account level changes as provided in the Platform. Client represents and warrants that Client Administrator shall have the authority to act on behalf of and bind the Client, and Client shall be responsible for the acts and omissions of the Client Administrator and Trusted Contacts.
2.5 Implementation. During Implementation, the Parties shall work together to enter initial Client Data and provision Trusted Contacts and end users into the Platform in accordance with the Implementation Services and Go-Live date listed in the applicable Order Form. Client is responsible for reviewing Client Data as implemented by Namely and such Client Data shall be deemed to be approved as entered once Client acknowledges the completion of Implementation Services. Upon completion of the Implementation Services, Client shall retain primary responsibility for entering and maintaining Client Data and reviewing Client Data for accuracy and integrity and hereby acknowledges and agrees that: (a) the quality of Services depends on the proper and regular maintenance of Client Data; (b) Client assumes responsibility for the accuracy and completeness of Client Data; and (c) except as otherwise provided herein, Namely shall not be held liable and assumes no responsibility for inaccurate Client Data entered by Client into the Platform. Should Client request a delay in the Go-Live date beyond the initial date presented in the applicable Order Form due to reasons outside of Namely’s sole control, additional fees may apply.
2.6 Affiliate Participation. Namely agrees that an Affiliate of Client may procure access to the Platform and Services pursuant to the terms and conditions of this Agreement; provided, however, that Client must provide Namely with appropriate legal documentation establishing (a) such Affiliate’s legal status and affiliate relationship with Client, including, without limitation, such Affiliate’s EIN, and (b) Client’s authority to bind such Affiliate to the terms and conditions of this Agreement. In addition, Client agrees to provide Namely with any additional information or documentation reasonably requested by Namely to carry out the Services for such Affiliate. All licenses or Services procured by Client and by Affiliate(s) will be aggregated for purposes of determining any volume-based price discounts under this Agreement. Client acknowledges and agrees that Client shall be jointly and severally liable for any obligations of any participating Affiliate under the terms and conditions of this Agreement.
2.7 Use Limitations. Except as otherwise provided in this Agreement, Client will not: (i) sell, rent, lease, sublicense, or otherwise transfer or distribute the Platform, Documentation, or any copies of the Platform or Documentation; (ii) modify, translate, reverse engineer, decompile, disassemble the Platform; (iii) create derivative works based upon the Platform; (iv) create any copy of or “mirror” Platform; or (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Platform or Documentation.
2.8 Export Control and Sanctions. In its use of the Platform, Client agrees to comply with all export, import, and sanctions laws and regulations of the United States and other applicable jurisdictions, including the U.S. Export Administration Regulations (“EAR”) and Office Foreign Assets Control (“OFAC”) sanctions programs. Without limiting the foregoing: (i) Client represents and warrants that it is not subject to any U.S. government list of prohibited or restricted parties or located in a country/region that is subject to a U.S. government embargo or comprehensive sanctions (currently Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine); (ii) Client shall not (and shall not permit any of its users to) access or use the Platform in a U.S.-embargoed or comprehensively sanctioned country/region or otherwise in violation of any U.S. export restriction; and (iii) Client shall not use the Platform to support nuclear, chemical/biological weapons, or missile activities prohibited by Part 744 of the EAR.
2.9 Service Levels. Namely’s provision of the Platform and Subscription Services will meet or exceed the minimum service levels (each a “Service Level” and, collectively, the “Service Levels”) set forth and subject to the Subscription Services Addendum, where applicable. In the event Namely does not meet or exceed any SLA(s), Client will be entitled to the remedy set forth in such applicable SLA(s) provided that Client has met its obligations under the terms and conditions of such SLA(s).
2.10 Carrier Feeds. In the event Client engages Namely as its broker of record or purchases Namely’s Benefits Administration Services, Client agrees that Namely will use commercially reasonable efforts to implement one or more automated electronic data feeds (each a “Carrier Feed” and, collectively, the “Carrier Feeds”) to process and transfer benefits enrollment and eligibility data to insurance carriers, subject to the terms of this Agreement and the Carrier Feed Terms in the Supplemental Terms Addendum. Carrier Feeds may be implemented directly by Namely or through a Subcontractor (as defined herein). All fees for Namely’s provision of either Carrier Feeds or manual feed shall be governed by the applicable Order Form or ordering document. Carrier Feed builds shall commence upon configuration of Client’s Benefits Administration Services and once Client’s benefits enrollment data has been entered into the application. Following configuration of the Benefits Administration Services, Client shall certify the accuracy of all benefits enrollment data, and shall maintain primary responsibility and liability for the accuracy and completeness of its benefits enrollment data.
2.11 Beta Program Participation. From time to time, Namely may test features and products and make them available to Client prior to full release (each, a “Beta Program”). Client agrees to participate in such Beta Programs and that such participation is voluntary and intended solely for the purpose of Client’s evaluation of the Beta Program. Client further agrees to assist Namely in testing and evaluating such Beta Programs. Client agrees to promptly notify Namely of any and all functional flaws, errors, anomalies, inefficiencies, or other problems directly or indirectly related to a Beta Program known to or discovered by Client through its participation in a Beta Program. Client’s participation in a Beta Program shall commence on the date Client is provided access to such Beta Program and shall terminate automatically upon the earliest to occur of: (a) Namely, at its sole discretion, removing Client’s access to such Beta Program; (b) Namely notifying Client of such Beta Program’s termination; or (c) or Client notifying Namely in writing that it no longer wishes to participate in the Beta Program. CLIENT’S PARTICIPATION IN ANY BETA PROGRAM IS ON AN “AS IS” BASIS AND NAMELY MAKES NO WARRANTY OF ANY KIND REGARDING THE BETA PROGRAM. NAMELY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, EXPRESS, STATUTORY, OR OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED, EXPRESS, STATUTORY, OR OTHER WARRANTIES IN THE BETA PROGRAM, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. NAMELY FURTHER DISCLAIMS THAT THE OPERATION OF THE BETA PROGRAM OR ANY OTHER THIRD PARTY SOFTWARE INTEGRATED TO THE BETA PROGRAM, WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT DEFECTS IN THE BETA PROGRAM WILL BE CORRECTED. NOTWITHSTANDING ANYTHING TO THE CONTRARY OR IMPLIED HEREIN, NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
3. Proprietary Rights
3.1 Client Data. Namely acknowledges and agrees that, as between the Parties, Client exclusively owns all right, title, and interest in and to Client’s Confidential Information and the Client Data, including all intellectual property rights therein, irrespective of whether such Client Data is stored or processed through or in the Services or Platform. Client hereby grants Namely a worldwide, non-exclusive, royalty free license to use, access, process, reproduce, perform, display, modify, distribute, and transmit Client Data on the Platform and in connection with providing Services to Client. Except for the limited rights and licenses granted herein by Client to Namely, no other license is granted to Namely.
3.2 Namely. Except for the limited rights provided herein and expressly granted to Client, no license or other right is granted to Client, no other use of the Platform is authorized. Namely shall and hereby retains all rights, title, and interest (including all intellectual and proprietary rights) in and to the Platform, the Services, including all modifications, copies, and derivative works thereof, and all Namely trademarks, names, logos, all rights to patent, copyright, trade secret, and other proprietary or intellectual property rights.
3.3 Feedback. As related to the Platform and Services, all Client: (a) suggestions for correction, change, or modification; (b) evaluation data; (c) benchmark tests; and (d) feedback, information, and recommendations provided to Namely (collectively, the “Feedback”) will be the property of Namely, and Client shall and hereby does assign any rights in such Feedback to Namely on an irrevocable and royalty-free basis.
3.4 Marks and Publicity. Namely and Client trademarks, trade names, service marks, and logos, whether registered or not (“Marks”) are and shall remain the sole and exclusive property of the respective owning party, which owns all right, title, and interest therein. Namely may use Client’s name and/or Marks within Namely’s product literature, press release(s), social media, and other marketing materials solely to identify Client as a client of Namely. Any other use by a Party of the other Party’s name and/or Marks shall require the prior written consent of such other Party.
3.5 Aggregate Data. Client acknowledges and hereby agrees that Namely may obtain and aggregate certain technical and usage data relating to Client’s use of Namely’s Platform and Services. Namely may, during and after the term of this Agreement, use Client’s Aggregate Data for any business purpose, including, without limitation, (a) providing, analyzing, improving, supporting, and operating the Platform and the Services and (b) generating industry benchmarks, insights, recommendations, or similar reports for distribution and consumption by Client and other Namely clients and prospects. For the sake of clarity, this section does not give Namely the right to identify Client or its employees as the source of any Aggregate Data.
4. Fees
4.1 Fees. Subject to the other provisions of this Section, Client shall pay to Namely the amounts set forth in the applicable Order Form or ordering document, and upon Namely’s invoice for the provision and use of the Platform and the Subscription Services (the “Subscription Fees”), along with the additional charges set forth in the Order Form for non-subscription services rendered (the “Supplemental Services Fees”), which may be provided to Client via an Invoice, ordering document, or other similar means (“Invoice”). In addition to the charges described above, Namely shall invoice quarterly in arrears, and Client shall pay to Namely, for any Active Resources in excess of the Start Count for the preceding quarter. Upon receipt of such Invoice or other similar document, Client shall remit payment to Namely in U.S. Dollars and in accordance with the terms set forth in the Invoice and all other applicable written documentation, including this Agreement. Unless provided otherwise in the applicable Order Form or ordering document, Subscription Fees are payable on net thirty (30) payment terms following receipt of Namely’s invoice, and Supplemental Services Fees are payable immediately upon Client’s receipt of Namely’s Invoice. All fees are: (a) payable in full; (b) non-refundable; and (c) due and payable in accordance with the Agreement payment terms. Should Client fail to pay an invoice in accordance with the applicable terms, Client shall, and hereby agrees to the following additional payment terms: (i) monthly interest on an unpaid balance at a rate of one and one half percent (1.5%), subject to applicable law; and (ii) any collection or legal fees reasonably incurred by Namely in order to effect payment or collection of unpaid amounts due under any applicable Order Form.
4.2 Taxes. All payments required under the Agreement and payable by Client are exclusive of federal, state, local, foreign, duties, tariffs, levies, withholdings, and similar assessment, including without limitation, sales taxes, use taxes, and value added taxes. Client shall and hereby agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Namely’s net corporate income.
4.3 Nonpayment. Notwithstanding anything to the contrary herein, in the event of nonpayment of any due and unpaid amounts payable by Client to Namely, Namely may, in its sole discretion, upon fifteen (15) days’ prior written notice to Client, suspend Client’s access to the Platform, and suspend any Services otherwise to be provided by Namely to Client, until such payment delinquency has been remedied in full. Upon termination for any reason or expiration of the Agreement between the Parties, other than for Namely’s material breach of these Terms, all outstanding amounts shall become immediately due and Client shall pay, upon Invoice by Namely, all amount due or payable to Namely in accordance with the Order Forms executed pursuant to these Terms. In the event that Client fails to remit payment in full for the amount due, Namely may offset such amount of fees due, including collection fees and attorney’s fees, against any Client funds held by Namely upon the effective date of such termination.
5. Confidentiality and Data Security
5.1 Confidentiality. During the Term of this Agreement and subject to the Terms herein, each Party will treat as confidential all Confidential Information of the other Party, will not use such Confidential Information except as expressly set forth herein or as otherwise authorized in writing, will implement reasonable security procedures to prohibit the unauthorized use, disclosure, duplication, or misuse of the other Party’s Confidential Information, and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under this Agreement, and subject to the confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of similar importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement, but in no event less than reasonable care.
5.2 Exclusions. Except as otherwise provided below, Confidential Information shall not include, as applicable, Confidential Information that the Receiving Party can demonstrate: (a) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (b) was known to the Receiving Party or in the Receiving Party’s possession prior to the receipt of the Disclosing Party’s Confidential Information as demonstrated by the Receiving Party’s business records in regular course; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented contemporaneous business records; or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights. The exclusions in this section shall not apply to Confidential Information that requires separate protection under applicable laws or regulation, including applicable privacy regulations.
5.3 Court Order. The Receiving Party may disclose Client Data or End User Data of the other Party pursuant to the order or requirement of a court, administrative agency, or other governmental body provided that the Receiving Party shall use reasonable efforts to provide advance written notice thereof to enable the Disclosing Party to seek a protective order or injunction against such disclosure, unless prohibited from doing so by an applicable court order or of an order with similar effect. Notwithstanding the foregoing, Namely shall disclose Confidential Information strictly in compliance with its Law Enforcement Policy.
5.4 Remedies. If either Party breaches any of its obligations with respect to confidentiality or the unauthorized use or disclosure of Confidential Information hereunder, the other Party shall be entitled to seek equitable or injunctive relief in addition to any other remedies that may be available to such Party.
5.5 Return. Upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all tangible copies of the Disclosing Party’s Confidential Information within ninety (90) days of such request and shall, upon request, confirm such return or destruction to the other Party in writing. Notwithstanding the foregoing, the Receiving Party may retain a copy of the Disclosing Party’s Confidential Information to comply with record management requirements as well as other applicable data retention laws and regulations or internal policies. To the extent that it is impracticable to return or destroy any Confidential Information, and with respect to any copies retained for record management purposes, the Receiving Party shall continue to maintain the Confidential Information in accordance with these Terms. Notwithstanding the above, Client agrees and understands that Namely will delete all Client Data within thirty (30) days of termination of the Agreement.
5.6 Data Security. Namely will: (a) protect the security and integrity of all Client Data that is collected, accessed, stored or received by Client in connection with Client’s use of the Platform or the provision of Services, including without limitation all End User Data in accordance with its Privacy Policy, incorporated herein by reference and available at: namely.com/privacy; and (b) develop, implement, and maintain a written comprehensive security program (the “Security Program”) with administrative, technical, and physical safeguards to protect the Client Data against any unauthorized disclosure or use of such data against reasonably foreseeable threats or hazards to the security and integrity of such Client Data. Throughout the Term of this Agreement, Namely shall remain in compliance with applicable privacy laws and regulations as provided in the Data Processing Agreement, and shall maintain SSAE 18 SOC 1, Type 2 audit standards or their current equivalent.
5.7 Security Breach. In the event of unauthorized access to Client Data that affects Client Data and which would require notification to a regulatory authority (“Security Breach”), Namely shall notify Client without undue delay, but no later than seventy-two (72) hours upon its discovery of a Security Breach. In the event of such a Security Breach, Namely will promptly perform an investigation into the breach, take appropriate remedial measures, and provide Client with the name of a Namely security representative who can be reached with security questions or security concerns throughout the scope of Namely’s investigation.
5.8 End User Notice. If any disclosure, use or breach of any End User Data requires Client, under applicable laws or regulations, to make a disclosure to any Client authorized End User (“End User Data Breach”), Client will be solely responsible for making such disclosure, including determining the content, methods, and means of such disclosure. Namely will reasonably cooperate with Client in formulating the disclosure, but Namely shall not make any such disclosure at its own initiative without Client’s prior consent. To the extent an End User Data Breach is caused by or related to a breach of the Agreement by Namely (or its employees, Subcontractors, Service Providers (as defined in the Data Processing Agreement), representatives or advisors), Namely will pay all reasonable costs and expenses of: (a) such disclosures and notifications (including reasonable legal fees); and (b) any applicable monitoring, and reporting on the impacted individuals’ credit records or restoration of the individuals’ credit or identity for a period of one (1) year, or as otherwise may be required by applicable law.
6. Limited Warranties
6.1 General. Each Party represents and warrants that: (a) it has the full power and authority, and has obtained all approvals, permissions, and consents necessary to enter into this Agreement and to perform its obligations hereunder on behalf of each entity authorized hereunder, including all affiliates and subsidiaries of the principal entity; (b) the Agreement is legally binding and enforceable; and (c) the execution, delivery, and performance of both Parties’ obligations under this Agreement shall be performed in accordance with applicable US laws and regulations as well in accordance with the Data Processing Agreement between the Parties, where applicable.
6.2 Namely. Namely represents and warrants that: (a) the Platform and Services shall be provided in a professional and workmanlike manner and perform in material respect to the description in this Agreement and any accompanying Documentation; and (b) Namely owns all rights, title, and interest in and to the Platform and Services or that Namely has otherwise secured all necessary rights in the Platform and Third-Party Platforms (as provided in Namely.com/third-party) as may be necessary to permit the access and use thereof as contemplated the Agreement between the Parties. For the avoidance of doubt, all Third-Party Platforms are provided solely in accordance with their respective terms and conditions.
6.3 Client. Client represents and warrants to Namely that it: (a) shall perform its obligations hereunder, and that unless otherwise provided herein, Client shall review all data maintained in the Platform for accuracy and currency; and (b) owns all rights, title, and interest in and to Client Data including End User Data, or that Client has otherwise secured all necessary rights, consents, and permissions in the Client Data as shall be required to permit Namely to access, use, and process such Client Data as contemplated under this Agreement.
6.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION AND AS PERMITTED BY APPLICABLE LAW, WARRANTIES AS TO SATISFACTORY QUALITY, MERCHANTABILITY, ACCURACY OF RESULTS, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NAMELY DOES NOT WARRANT THAT THE PLATFORM OR THE SERVICES WILL BE COMPLETELY ERROR-FREE OR THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE.
7. Indemnification
7.1 Namely. Namely shall indemnify and defend Client, its successors, subsidiaries and affiliates, officers, directors, employees, and assigns from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys’ fees) (collectively, the “Losses”) arising out of or relating to: (a) any third-party claims, demands, or proceedings (a “Claim”) asserting that the Platform, Services, or use thereof (as permitted under this Agreement) infringes or misappropriates any third party’s Intellectual Property Rights; and (b) any End User Data Breach.
7.2 Limitations. Namely shall not have any liability or indemnification obligations to Client under these Terms to the extent that any Claims arise directly as a result of: (a) use of the Platform or Services by Client or any third party in combination with equipment, materials, products or software not authorized by Namely where the Platform or Services alone would not be infringing; or (b) compliance with instructions provided by Client to Namely.
7.3 Client. Client shall indemnify and defend Namely, its successors, subsidiaries and affiliates, officers, directors, employees, and assigns from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys’ fees) (collectively, the “Losses”) arising out of or relating to Namely’s authorized use of any Client Data.
7.4 Procedure. The Party seeking indemnification will provide the other Party prompt of all Claims for which indemnity is sought hereunder and will additionally provide: (a) all related documentation in Party’s possession or control relating to such Claims; and (b) reasonable assistance to the indemnifying Party in defense of such Claims. Indemnifying Party shall control, at its sole cost and expense, the defense or settlement of all such Claims and will keep the other Party apprised of the status of all such Claims. The indemnifying Party shall have sole and exclusive control over the defense of all such Claims, including settlement of such Claims, which shall not require indemnified Party’s consent to be valid and binding on the indemnified Party. Failure by either Party to provide prompt notice of a Claim to the indemnifying Party that results in material prejudice of such Claim shall relieve the indemnifying Party of its indemnity obligation hereunder.
7.5 License, Replacement, or Refund. If the Platform or Services becomes the subject of a Claim as described herein, or if Namely believes that the Platform or Services are likely to become the subject of a Claim, Namely may, at its sole discretion and expense: (a) obtain a license from such third party for the benefit of Client; (b) replace or modify the Platform or Services so it is no longer the subject of a Claim so long as the replacement or modification performs substantially the same function as the Platform or Services at issue; or (c) if neither (a) or (b) as described in this section is commercially feasible, and in its sole discretion, Namely may provide a credit or refund on any pre-paid Subscription Fees, as applicable.
8. Limitation of Liability
8.1 Direct Damages. EXCEPT AS OTHERWISE PROVIDED HEREIN , IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL CHARGES PAID BY CLIENT TO NAMELY DURING THE MOST RECENT TWELVE (12) MONTH PERIOD PRIOR TO THE LAST EVENT GIVING RISE TO LIABILITY.
8.2 Indirect Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.
8.3 Exceptions. THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION (LIMITATION OF LIABILITY) WILL NOT APPLY TO ANY LOSSES AS THE RESULT OF EITHER PARTY’S: (A) SECURITY BREACH CONCERNING CONFIDENTIAL INFORMATION OR END USER DATA; (B) INDEMNIFICATION OBLIGATIONS HEREUNDER; (C) FRAUD, WILLFUL MISCONDUCT,GROSS NEGLIGENCE, OR ANY OTHER OBLIGATION THAT MAY NOT BE SUBJECT TO LIMITATION BY APPLICABLE LAW; OR (D) SERVICE LEVEL CREDITS.
9. Term and Termination
9.1 Term. The term of this Agreement shall commence upon the Effective Date and will be coterminous with the initial Order Form. If any subsequent Order Forms, Amended and Restated Orders, Additional Services Agreements, or similar ordering documents are executed by the Parties referencing this Agreement, this Agreement will continue in effect with respect to the term period of such subsequent Order Forms. The “Term” means the term of such initial Order Form and any subsequent Order Form, including renewals and extensions.
9.2 Termination for Cause by Client. Client shall have the right to terminate this Agreement or any Order Form, in whole or in part, for cause, as of the date specified in the notice of termination, if Namely: (a) materially breaches any provision of this Agreement, which breach remains uncured for a period of thirty (30) days after receipt of written notice thereof from Client to Namely; or (b) upon occurrence of an applicable SLA termination event.
9.3 Termination for Convenience by Client. During any Renewal Term, Client shall have the right to terminate this Agreement at its convenience, at any time, for any reason, or no reason at all by providing written notice to Namely upon ninety (90) days’ notice. In the event Client terminates this Agreement for convenience, a termination fee of sixty-five (65) percent of the remaining fees and accrued but unpaid charges on the Client’s then-current term, including any and all Subscription Fees, Professional Fees, and outstanding Active Resource fees, shall become immediately due and payable (“Termination Fee”). Client’s termination shall be effective only upon receipt of such outstanding amount, and Client’s failure to remit full payment for such Termination Fee shall suspend such termination until such time as the amount is received in full by Namely. If this Agreement is terminated by Client for convenience prior to the applicable expiration date for any reason other than for bankruptcy or for material breach of Namely’s obligations, the Termination Fee shall be considered as liquidated damages and not as a penalty.
9.4 Termination by Namely. In the event that: (a) Client fails to pay any Fees not disputed in good faith in accordance with this Agreement by the specified due date; and (b) Client fails to cure such failure within ten (10) days of receipt of written notice from Namely of its intention to terminate for non-payment, then Namely may, by written notice to Client, terminate this Agreement in its entirety. In addition, Namely may, by written notice to Client, terminate this Agreement in its entirety if Client: (a) materially breaches any provision of this Agreement; or (b) materially violates a provision of this Agreement relating to use restrictions on the use of the Platform by third parties and fails to cure such breach within thirty (30) days of receipt of written notice from Namely of its intention to terminate.
9.5 Bankruptcy. Either Party will have the right to terminate this Agreement by providing written notice to the other Party upon the occurrence of any of the following events, but only to the extent such events are not dismissed within 120 days from the date such events first occurred: (a) a receiver is appointed for the other Party; (b) the other Party makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (c) the other Party commences or has commenced against it, proceedings under any bankruptcy law; or (d) the other Party ceases to do business.
9.6 Effects of Termination. Upon any expiration of this Agreement, all corresponding rights, obligations, and licenses of the Parties shall cease, except that the provision of Section 3 – Proprietary Rights, Section 4 – Fees, Section 5 – Confidentiality and Data Security, Section 6.4 – Disclaimers, Section 7 – Indemnification, Section 8 – Limitation of Liability, Section 9.6 – Effects of Termination, and Section 10 – General Provisions shall survive. In the event of termination of this Agreement due to Namely’s material breach, Namely shall issue Client a pro-rata refund of any pre-paid Subscription Fees not used as of the effective date of such termination. Client shall have limited read-only access to the Platform for a period of thirty (30) days post-termination to access and export Client Data only.
10. General Provisions
10.1 Entire Agreement. This Agreement, as supplemented by the Data Processing Agreement, and Subscription Services, and Supplemental Services Terms, hereby incorporated by reference, constitute the entire agreement, and supersede all prior negotiations, understandings, discussions, or agreements, between the Parties (whether oral or written) regarding the subject matter of the Agreement (and all past dealings). Any inconsistent or additional terms not expressly incorporated herein, shall have no effect under the Agreement.
10.2 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together shall constitute one and the same instrument. Execution of a copy (e.g., pdf or electronic signature) shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.
10.3 Modification and Waiver. No change, consent, or waiver under this Agreement will be binding upon either Party unless made in writing and signed by an authorized representative of both Parties. The failure of either Party to enforce its rights under the Agreement at any time for any period shall not be construed as a waiver of such rights, and the exercise of one right or remedy will not be needed a waiver of any other right or remedy.
10.4 Severability. If any provision of the Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.
10.5 Compliance with Laws and Regulations. Namely and Client shall perform their respective obligations in a manner consistent with applicable US federal, state, and local laws, regulations and codes, including laws prohibiting discrimination on the basis of race, color, religion, age, sex, ancestry, medical condition, marital status, sexual orientation, veteran status, handicap, or national origin. As relates to the processing of personal information, Namely and Client shall perform their respective privacy obligations in a manner consistent with the Data Processing Agreement, between the Parties, where applicable.
10.6 Governing Law. The Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, except as expressly provided in the applicable Data Processing Agreement between the Parties as provided therein. Notwithstanding the foregoing, exclusive jurisdiction and venue for actions related to the Agreement will be the state and federal courts located in New York County, New York, and both Parties consent to the jurisdiction of such courts with respect to any such actions.
10.7 Remedies. Except as expressly provided otherwise herein, each Party agrees that, in the event of any breach or threatened breach of Parties’ confidentiality obligations, the non-breaching Party will suffer irreparable harm for which it will have no adequate remedy at law. Accordingly, the non-breaching Party shall be entitled to seek injunctive and other equitable relief remedies to prevent or restrain such breach or threatened breach, without the necessity of posting a bond.
10.8 Record Retention. Any and all specific record retention requirements and schedules established by governmental entities and applicable to Client are the sole responsibility of Client, are not the responsibility of Namely, and are not included as part of the provision of Platform or Services. Namely has no responsibility or liability for maintaining or retaining such records on behalf of Client or for complying with such requirements and/or schedules. Client is solely responsible for any obligation imposed on Client by law or regulation to maintain records regarding Client’s business or employees including both during the Term of this Agreement, and following termination or expiration of the Agreement. Notwithstanding the above, Client agrees and understands that Namely will delete all Client Data within thirty (30) days of termination of the Agreement.
10.9 Subcontractors. Namely may subcontract all or part of the provision of the Platform or Services in its sole discretion and without the prior consent of Client to companies not under the direct control of Namely (“Subcontractor”). Namely shall and hereby assumes responsibility for the acts and/or omissions of its subcontractors.
10.10 Notices. Except as otherwise provided in the Agreement, all notices under this Agreement shall be in writing, in English, and delivered to legal@namely.com. Additional notice may be provided to the Parties at their respective addresses stated in the most recent applicable Order Form, or at such other address designated by the Parties by written notice. Notices shall be deemed to have been duly given when received, if personally delivered, including via courier, when receipt is electronically confirmed; if transmitted by facsimile or email, the day after being sent; if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
10.11 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected Party shall use commercially reasonable efforts to give prior written notice thereof to the other Party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
10.12 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either Party without the other Party’s prior written consent, not to be unreasonably withheld. However, without prior written consent, or any consent, either Party may assign the Agreement in part or in whole, to any wholly owned subsidiary, Affiliate, or successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation, or otherwise). These Terms, whether the Agreement has been assigned in whole or in part, shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the Parties hereto.
10.13 Independent Contractors. The Parties shall be independent contractors under this Agreement, and nothing herein shall constitute either Party as the employer, employee, agent, or representative of the other Party, or both Parties as joint venturers or partners for any purpose whatsoever.
10.14 Representation. Each of the signatories to the Order Form and all other similar authorizing documents represent and warrant that they have all necessary right, title, and interest to bind the applicable entities on whose behalf they are signing to the Agreement.
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