COMPENSATION TOOL SAAS SERVICES AGREEMENT

THIS SAAS SERVICES AGREEMENT GOVERNS CUSTOMER’S USE OF THE SERVICES. BY CLICKING ON THE ACCEPTANCE BOX OR ACCESSING OR USING THE SERVICES OR THE SOFTWARE, CUSTOMER ACKNOWLEDGE SAND AGREES THAT ALL SUCH ACCESS AND USE IS SUBJECT TO THIS AGREEMENT. ANY SUCH ACCESS OR USE WILL CONSTITUTE SUCH ACCEPTANCE AND RESULT IN A BINDING AND LEGALLY ENFORCEABLE AGREEMENT BETWEEN CUSTOMER AND COMPENSATION TOOL, LLC. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A CORPORATION, PARTNERSHIP, ASSOCIATION OR OTHER ENTITY OR GROUP OR IF YOU HAVE AUTHORIZED ANOTHER ENTITY OR INDIVIDUAL TO ACCEPT THESE TERMS ON YOUR BEHALF, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT OR TO HAVE SUCH ENTITY OR INDIVIDUAL BIND YOU TO THIS AGREEMENT.

THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN ANY FREE TRIAL OF THE SERVICES.


1. SERVICES AND SUPPORT

1.1 Paid Services. Subject to the terms and conditions of this SAAS Services Agreement (this “Agreement”), Compensation Tool, LLC (“CT”) grants to the individual, person, company, or organization that has purchased or has registered for a trial of the Services (“Customer”) a non-exclusive, non-transferable, worldwide and non-sublicensable right during the term of this Agreement to use the Services for Customer’s internal business operations. This Agreement includes and incorporates the terms of any order form for the Services either signed between Customer and CT or an order form completed via CT’s website (the “Order Form”). The “Services” means CT’s human resources management software which enables users to (i) manage internal proprietary and third party human resources data and (ii) conduct compensation and market analysis of employment positions and the employees serving in those positions, including jobs, employees, pay structures, and survey data, all as described in greater detail at CompensationTool.com.

1.2 Free Trial. If Customer registers for a free trial, CT will make the applicable Service available to Customer for its internal business operations on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which Customer registered to use the applicable Service; (b) the start date of any purchased Service subscription ordered by Customer for such Service; or (c) termination by CT in its sole discretion. Additional trial terms and conditions may appear on the applicable registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legal binding. CT reserves the right to Determine Customer’s eligibility for a free trial and, subject to applicable laws, to withdraw, terminate or to modify a free trial at any time without prior notice and with no liability, to the greatest extent permitted under law. ANY DATA ENTERED INTO THE SERVICES, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICES BY OR FOR CUSTOMER DURING A FREE TRIAL MAY BE PERMANENTLY LOS UNLESS: (A) CUSTOMER PURCHASES A SUBSCRIPTION TO THE SERVICES OR (B) CUSTOMER EXPORTS SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD.

1.3 As part of the registration process, Customer will identify an administrative user name and password for Customer’s CT account. CT reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.4 Subject to the terms hereof, CT will provide Customer with technical support services in accordance with CT’s standard practice. Customer may initiate a HelpDesk ticket at any time by emailing support@compensationtool.com. CT will use commercially reasonable efforts to promptly respond to all Helpdesk tickets. Notwithstanding the foregoing, CT is not obligated to provide support services for free trials.


2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by CT or authorized within the Services); rent, lease or sell the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with CT’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless CT against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from (i) an alleged violation of the foregoing, (ii) any breach of Customer’s representations or warranties in Section 4.2, or (iii) otherwise from Customer’s use of Services. Although CT has no obligation to monitor Customer’s use of the Services, CT may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.


3. CONFIDENTIALITY

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of CT includes non-public information regarding features, functionality and performance of the Service. Proprietary information of Customer includes Customer Data (defined below). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person any such Proprietary Information (except in the performance of the Services or as otherwise permitted herein). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.


4. PROPRIETARY RIGHTS

4.1 As used in this Section 4, the following terms shall have the following meanings:

“Customer Data” means information, data and other content, in any form or medium, which is collected, downloaded or otherwise received, directly or indirectly from Customer by or through the Services (or from a third party based on Customer’s acts). Customer Data includes, without limitation, information regarding employees, salaries, third party salary surveys, and other employment information provided by Customer.

4.2 Customer shall own all right, title and interest in and to the Customer Data. Customer represents, warrants and covenants to CT that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by CT and processed in accordance with this agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights or any other rights of any person or violate any applicable law. Customer irrevocably grants CT the right to collect, process, and analyze Customer Data in connection with the provision, use, and performance of the Services and related systems and technologies and to use such Customer Data: (i) to provide, improve, and enhance the Services; (ii) for other development, improvement, diagnostic and corrective purposes in connection with the Services; and (iii) for normative research,; provided that such data is used only in aggregated and anonymized manner (i.e., all personally identifiable information permitting the identification of individual employees is removed and the names of Customer’s clients are removed, and data is aggregated to that no Customer Data is reported or made available as part of any normative research).

4.3 CT shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto (whether made by CT alone or with any contribution from Customer or its personnel), (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.

4.4 No rights or licenses are granted except as expressly set forth herein.


5. PAYMENT OF FEES

5.1 Customer will pay CT the then applicable fees described in the Order Form for the in accordance with the terms therein (the “Fees”). CT reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). Billing inquiries should be directed to CT’s customer support department.

5.2 CT may choose to bill through an invoice, in which case, full payment for invoices issued must be received by CT thirty (30) days after the mailing date of the invoice, provided that Customer will not be permitted to use the Services until full payment is received by CT. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on CT’s net income.


6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. CT may terminate this Agreement immediately with respect to any free trial or upon any breach of Section 2.1. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, CT may, but is not obligated to, delete stored Customer Data. 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.


7. MAINTENANCE; DISCLAIMER

The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CT or by third-party providers, or because of other causes beyond CT’s reasonable control, but CT shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, CT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND CT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.


8. THIRD PARTY SITE LINKS

The Services may provide links that allow Customer to leave CT’s website and/or access third party websites. Linked sites in many cases are not under the control of CT and CT is not responsible for the contents of any linked site or any link in a linked site, or any changes or updates to such sites. CT is not responsible for webcasting or any other form of transmission received from any linked site. CT provides these links as a convenience and the inclusion of any link does not imply endorsement by CT of the applicable sites.


9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, CT AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CT’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO CT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DURING ANY FREE TRIAL THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY AND CT SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES AND THE SOFTWARE FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE CT’S LIABILITY WITH RESPECT TO THE SERVICES AND THE SOFTWARE PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $10.00. WITHOUT LIMITING THE FOREGOING, CT AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT CUSTOMER’S USE OF THE SERVICES OR THE SOFTWARE DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.


10. MISCELLANEOUS

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. This Agreement is not assignable, transferable or sublicensable by Customer except with CT’s prior written consent. CT may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind CT in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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 Washington without regard to their conflict of laws 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. This Agreement is not assignable, transferable or sublicensable by Customer except with CT’s prior written consent. CT may transfer and assign any of its rights and obligations under this Agreement without Customer’s consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind CT in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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 Washington without regard to its conflicts of law provisions. CT may (a) issue a press release announcing the relationship between the parties, (b) make available for marketing purposes case studies regarding the implementation of the Services by Customer, (c) mention Customer and the parties’ relationship in CT’s marketing collateral, website, and other promotional materials, or (d) use Customer’s name, trademark(s), or logo(s) in any marketing or promotional efforts.