Master Subscription Agreement – Online Terms
Effective Date: 05/01/2023
This Master Subscription Agreement (this “Agreement”), governs access and use of the Application Services offered by Woven Teams, Inc (Company). This Agreement is entered into by the Customer Entity entering a service order or registering to use Woven Teams, Inc Applicaiton Services.
BY ACCEPTING THIS AGREEMENT, EITHER BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR BY CLICKING A BOX INDICATING ACCEPTANCE, THE INDIVIDUAL DOING SO AGREES TO THE TERMS OF THIS AGREEMENT. IF AN INDIVIDUAL ACCEPTS THIS AGREEMENT ON BEHALF OF AN ENTITY, THAT INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE “CUSTOMER” WILL REFER TO THE ENTITY. IF AN INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEY MUST NOT ACCEPT THIS AGREEMENT AND THEY AND CUSTOMER MAY NOT USE THE SERVICES.
“Application Services” shall mean the talent nurturing and assessment platform provided by Company.
“Agreement” means this Master Subscription Agreement, together with any Service Order entered into between Customer and Woven Teams, Inc and any documents or materials of any nature incorporated by reference into the foregoing.
“Candidate” means an individual invited by Customer to use the Services as the subject of an evaluation and/or assessment by Customer in connection with Customer’s use of the Application Services. A Candidate is not considered a “User” under this Agreement.
“Customer Data” shall mean all electronic data or information submitted by Customer to the Application Services.
“Candidate Data” shall mean all electronic data or information submitted by Customer’s applicants/candidates to the Application Services.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
“Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers. Non-Public Personal Information specifically does not include all personal information required to use the Application Services such as customer name, email address, and mobile phone number or derived information such as segments, scores, or lifecycle attributes used to make decisions within the Application Services.
“Service Order” means an online order entered into by Customer and Woven Teams, Inc specifying the Services purchased by Customer and to be provided by Woven Teams, Inc.
“Services” shall mean the Application Services and Professional Services collectively.
“Start Date” shall mean the date on which Company shall make the Application Services available to Customer as set forth in an applicable Service Order.
“Successful Hire” shall mean any candidate who completes a Woven work simulation and signs an offer letter for employment or contract work with Customer anytime within twelve (12) months of an active subscription.
“Success Fee” shall mean any additional fees incurred by Customer for making a Successful Hire through Woven.
“Term” shall mean the subscription period set forth in an applicable Service Order.
“Woven Inbound” shall mean the Application Services provided by Company in which Candidate Attraction Services will be used to source new candidates and assessments will be completed by Company.
“Woven Interview” shall mean the Applicatioon Services provided by Company where any candidates invited to Woven will be delivered an assessment and Company will return results to Customer.
2. Terms and Service Orders
2.1. Term. This Agreement is effective as of the date Customer accepts the Agreement and will continue until the Services Terms of all Service Orders have expired or are terminated in accordance with this Agreement (the “Term”).
2.2. Service Orders. Customer will order the Services by executing a Service Order. Each Service Order will include terms detailing the applicable Services. Service Orders and the obligations under them are non-cancellable, except as may be provided for by this Agreement.
2.3. Adding Services. Customer may purchase additional Services during the Term by entering into an additional Service Order as Woven Teams, Inc requires to add those Services.
3. USE OF THE APPLICATION SERVICES
3.1 Company Responsibilities. Company shall: (a) provide the Application Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) perform and complete the Services in full compliance and all applicable municipal, state, and Federal laws, rules, regulations, if applicable; (c) provide basic support to Customer at no additional charge; and (d) use commercially reasonable efforts to make the Application Services available 24 hours a day, seven days a week, except for planned downtime or any unavailability caused by circumstances beyond Company’s reasonable control.
3.2 Customer Responsibilities. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application Services, and notify Company promptly of any such unauthorized access or use; and (c) comply with all applicable laws and regulations in using the Application Services. Customer shall not upload to, or store within, the Application Services (and the Customer Data shall not contain) any Non-Public Personal Information.
3.3 Use Guidelines. Customer shall use the Application Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party except as contemplated by this Agreement; (b) send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the Application Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the Application Services any Malicious Code; or (e) attempt to gain unauthorized access to the Application Services or its related systems or networks.
4. FEES & PAYMENT
4.1 Service Fees. Customer will pay Company the fees for the Services as specified in the Service Order (“Fees“). All Fees are non-refundable except as provided for by this Agreement and are not subject to apportionment by Customer. Success Fees for a Successful Hire will be charged to Customers payment method or invoiced separate from the Service Fees.
4.2 Overdue Payments. Customer’s failure to pay undisputed invoices as set forth herein shall constitute a material breach of this Agreement and Company may impose late fees as contemplated in each Service Order. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), Company may, in addition to any of its other rights or remedies, suspend Customer’s access to the Application Services until such amounts are paid in full. If such failure to pay has not been cured within 30 days of the due date, then upon written notice Company may terminate this Agreement and any or all outstanding Service Orders.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company shall not access Customer’s user accounts, including Customer Data, except to respond to Service or technical problems or at Customer’s request. Company may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Customer shall not (a) modify, copy or create derivative works based on the Application Services; or (b) reverse engineer the Application Services.
5.2 Improvements; Deliverables. Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by Company in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Company by virtue of this Agreement or otherwise, Customer hereby transfers to Company all rights, title, and interest which Customer may have, and such transfer is irrevocable, irreversible and binding on Customer’s successors. Company hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Company for Customer under a Scope of Professional Work (“Deliverables”). Company shall retain all ownership rights to the Deliverables. Customer agrees that Company may use statistical, aggregate, or deidentified data that is derived from the Customer Data and/or Candidate Data so long as such data does not identify an individual person (“Personally Identifiable Information” or “PII”) for statistical purposes, research, benchmarking, to improve Company’s or its affiliates’ software applications or services, for other lawful purposes, and with third parties with whom Company has a business relationship and who owe confidentiality obligations to Company and adhere to these same Customer Data and Candidate Data restrictions.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement, any Business Proposal, the Customer Data, Candidate Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
6.3 Compelled Disclosure; Remedies. If the Receiving Party is compelled by law, an order issued by a judge or public competent authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure; provided, however, that the parties may disclose the terms of this agreement and any SOW without such notice to (i) their auditors and attorneys, and (ii) regulatory authorities and auditors in the ordinary course of regulatory inspections and examinations of their records.. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek to file a lawsuit to enjoin such acts.
7. WARRANTIES & DISCLAIMERS
7.1 Customer Warranties. Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trademark, publicity right, trade secret or other proprietary right held by any third party; and (b) Customer shall not use the Services in a manner that violates any applicable law.
7.2 Company Warranties. Company represents and warrants that: (a) the functionality of the Application Services will not be materially decreased during a Subscription Term; (b) Company shall utilize software and other security means to prevent the Application Services from containing or transmitting Malicious Code; (c) Company shall maintain the security and integrity of Customer Data and Candidate Data consistent with industry standards for comparable services, including maintaining access controls, firewalls, wireless and mobile device and storage security, virus scanning/protection software, encryption of data in transport and storage (including backup data), and network security intrusion protection systems; and (d) it owns or otherwise has sufficient rights in the Application Services to grant to Customer the rights to use the Application Services granted herein. Company represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer must report any deficiencies in the Professional Services to Company in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this Section, Customer’s exclusive remedy, and Company’s entire liability, shall be the re-performance of the Professional Services. If Company is unable to re-perform the Professional Services as warranted within 30 days of receipt of notice of breach, Customer shall be entitled to recover the fees paid to Company for the deficient Professional Services.
8.1 Each party shall defend, indemnify, and hold the other party, its affiliates, and their respective officers, directors, and employees, harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a claim that arises due to the other party’s breach of this Agreement.
8.2 Procedure. As an express condition to a party’s indemnification obligation under this Section 7, the other party shall: (a) promptly notify the indemnifying party in writing of the applicable claim, suit, or demand for which indemnification is sought; and (b) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such claim. The indemnifying party shall not settle any claim that results in the other party’s liability or obligations without that party’s prior written consent.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY OR IF LESS THAN 12 MONTHS HAVE ELAPSED AT THE TIME THE CLAIM AROSE, THEN THE MAXIMUM LIABILITY IS THE TOTAL ANNUALIZED AMOUNT BASED ON THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FROM THE BEGINNING OF THE AGREEMENT TO THE TIME OF THE EVENT GIVING RISE TO THE CLAIM.
10. TERM & TERMINATION
10.1 Term. This Agreement commences on the Effective Date and continues until terminated as set forth in this Section 9 (the “Term”). Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Service Order.
10.2 Termination for Cause. A party may terminate this Agreement for cause upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such 30-day period. Company may immediately terminate this Agreement for cause if Customer breaches any term or condition set forth in this Agreement. Upon any termination for cause by Customer, Company shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. Upon any termination for cause by Company, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The relationship between the parties created by this Agreement is one of independent contractors and neither party shall have the power or authority to bind or obligate the other except as expressly set forth in this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
11.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Business Proposals), without consent of the other party, but with written notice, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.3 Governing Law. This Agreement shall be governed exclusively by the laws of the State of Delaware, without regard to its conflicts of laws rules. All disputes arising out of or in connection with this Agreement or its validity shall be finally settled by a court in Delaware, and the parties expressly agree to the jurisdiction thereof.
11.4 Miscellaneous. This Agreement, including all Exhibits and Service Orders, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit or Service Order, the terms of this Agreement shall prevail unless expressly stated otherwise in such Exhibit or Service Order. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid provision that is closer to the scope and intent of the invalid provision and shall not affect the validity of the remaining provisions hereof. This Agreement may be executed in two (2) counterparts with the exact same contents, which taken together shall form one legal instrument. The counterparts may be transmitted and signed electronically (e.g. pdf, DocuSign).