END USER LICENSE AGREEMENT
Last Updated: May 24, 2018
By checking the “Accept” checkbox, you (“you” or “User”) agree to the following terms and conditions of WorkBright’s End User License Agreement (the “Agreement”) governing your use of All4Staff, Inc. d/b/a Workbright’s (“we” or “Provider” or “us”) online service, including the websites operated by us and through the software applications made available by us for use on or through computers and mobile devices that links to this Agreement (collectively, the “Service(s)”).
Under this Agreement, Provider will provide you with access to the Service, which allows you to submit information required by your current or prospective employer to us for purposes of completing your application and/or personnel file, either as an employee or contractor for such employer (the “Content”).
1. Revisions to this Agreement
We may revise and update this Agreement from time to time, and will post the updated Agreement to the Services. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
2. Privacy Disclosure
3. License Grant to You
We hereby grant you a non-exclusive, non-transferable, revocable, worldwide right and license to access and use the Service, for the duration of this Agreement, solely for the purpose of facilitating the completion of your personnel file and subject to the license restrictions set forth in this Section. All rights not expressly granted to you are reserved by Provider and its licensors. Except as expressly permitted in this Agreement, you shall not (i) license, sublicense, copy, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; or (iii) decompile, reverse engineer, or otherwise use the Services as part of a service bureau arrangement. Your access to the Services is provided on a temporary basis with no guarantee for future availability. We reserve the right, in our sole discretion, to withdraw, modify, or add any content or functionality of the Service without notice, on a temporary or permanent basis, without liability to you or any third party. We also reserve the right to restrict, suspend or terminate your access to the Service if you violate the terms and conditions of this Agreement.
4. License Grant from You.
You hereby grant Provider a non-exclusive, perpetual, royalty-free, worldwide license to your Content for purposes of providing the Services, including disclosing your Content to your prospective or current employer for purposes of completing your personnel file. In addition, you hereby grant Provider an irrevocable, non-exclusive, perpetual, royalty-free, worldwide license to reproduce, distribute, create derivative works, and otherwise use your Content in a de-identified, aggregated form, (i.e. your Content is summarized together with our other users and may be enriched with other third party data forms, never releasing individually identifiable information), for Provider’s internal business purposes, including but not limited to the development and improvement of Provider’s services and products.
Upon any termination or expiration, you must stop using the Service. In the event this Agreement expires or is terminated upon your request (to [email protected]), we will provide you with an electronic copy of all of your Content in the Service. You agree and acknowledge that we have no obligation to retain any Content, and may delete any Content, more than 30 days after termination or expiration. In most cases, your prospective employer sets the period that your Content is stored within our Services.
7. IP Ownership; System Data
We (and our licensors, affiliates, and business partners where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, our technology, or any of our intellectual property rights. Our name, logo, and the product names associated with the Service are our trademarks, and no right or license is granted to use them. You own all right, title and interest, including all related intellectual property rights, in and to the Content and any other material provided by you with the exception of generic file formats, such as W9s and W4s, shall not be the property of either party. The Service contains components that enable and facilitate the use of certain error-correction, monitoring and reporting services. You acknowledge and agree that we may automatically use data capture, analysis tools, and other similar tools, to review, extract, compile, synthesize, and analyze your use of the Service and any usage-related data, as well as any non-personally identifiable data or information resulting from your use of the Service (“System Data”). To the extent that we collect any System Data, such System Data will be solely owned by us and may be used by us for any lawful business purpose without a duty of accounting to you, provided that the System Data is used only in an aggregated, de-identified form, without specifically identifying the source of the System Data. We shall have no obligation to you to maintain, store, or preserve any System Data.
8. Representations and Warranties.
You represent, warrant and covenant that: (i) you have all necessary rights to convey any Content to us, and that the use of such Content by the System does not infringe the rights (including intellectual property rights) of any third party; (ii) you will not introduce into the Services any virus, time bomb, ransom ware, back door, Trojan horse, or other malicious or destructive code designed to permit unauthorized access to the Services; (iii) you will not use the Services to commit fraud or conduct other unlawful activities; (iv) you will not use any bot or other automatic or manual device or process for the purpose of harvesting or compiling information on the Service for any reason; and (v) you are authorized to electronically sign all forms where such signature is requested and by signing you represent that you are the individual identified within such applicable form. Other than as set forth in this section, Provider and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or that: (i) the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (ii) the Service will meet your requirements or expectations, (iii) any stored Content will be accurate or reliable, (iv) errors or defects will be corrected within the Content or within the Services, or (v) the Service or the server(s) that make the Service available are free of viruses or other harmful components. OTHER THAN AS SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PROVIDER AND ITS LICENSORS.
You will indemnify, defend, and hold harmless Provider, its licensors, and each of their respective employees, officer, directors, and affiliates (“Indemnified Parties”), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from your improper use of the Service or your breach of ANY representation or warranty. We will provide you with notice of any such claim or allegation, and we will have the right to participate in the defense of any such claim at our expense.
10. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICES, THE ACCURACY OF THE CONTENT WITHIN THE SERVICES, WHETHER THE ELECTRONIC FORMS WITHIN THE SERVICES ARE SUFFICIENT TO MEET FEDERAL OR STATE LEGAL OR REGULATORY REQUIREMENTS, OR ANY RESULTS OBTAINED FROM OR THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO EMPLOYMENT DECISIONS, OR DECISIONS RELATED TO TAX WITHHOLDING. WE WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES THAT RESULT DUE TO THE ACTIONS OF THIRD PARTIES THAT ACCESS THE SERVICES, INCLUDING EMPLOYERS AND THE THIRD PARTIES THEY MAY ENGAGE. WE WILL NOT BE LIABLE FOR ANY NETWORK-RELATED PROBLEMS ATTRIBUTABLE TO THE SERVICES OR CHANGES TO NETWORK CONFIGURATION THAT MAY AFFECT THE PERFORMANCE OF THE SERVICES. IN ANY EVENT, THE MAXIMUM TOTAL AGGREGATE LIABILITY OF PROVIDER FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1,000.00 USD) OR YOUR DIRECT PROVABLE DAMAGES.
Other than requests for injunctive relief, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by binding arbitration held in Denver, Colorado, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Each party shall bear its own expenses in connection with the arbitration proceeding and the parties shall divide equally the costs of the arbitrator. This Agreement will be governed by the laws of the State of Colorado without regard to conflicts of law principles. Any court action arising under this Agreement must be brought in the state and federal courts located in Denver, Colorado, as permitted by law. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding.
Any delays or failures by us in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond its reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by us (each, a “Force Majeure Event”). If any provision of this Agreement is found to be unenforceable, such term will be considered severable from the remaining terms, which will continue to be valid and enforceable. You may not export, ship, transmit, or re-export the Services in violation of any applicable law or regulation, including without limitation, the Export Administration Regulations issued by the United States Department of Commerce. Any amendments or modifications of this Agreement will be binding upon the parties only if made in accordance with Section 1 of this Agreement. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by the either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. We may give notice by means of a general message on the Service; electronic mail to your e-mail address on record in your account information, or by written communication sent by first class mail or pre-paid post to your address on record in your account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to us for matters related to this Agreement (such notice shall be deemed given when received by us) at any time at [email protected] No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party.