This page was last updated on 31 July 2023.
Customer and Veryable Inc. ("Veryable") agree that the terms and conditions set forth shall apply to the Veryable supply of the commercially available version of Workforce Management in Veryable’s hosting environment and the services related thereto specified on a Veryable Order Form (“Terms and Conditions”). The Applications described on the Order Form shall be delivered by means of Customer’s permitted access to the Veryable infrastructure hosting such Applications.
BY MANUALLY OR ELECTRONICALLY EXECUTING AN INITIAL ORDER FORM REFERENCING THESE TERMS AND
CONDITIONS OR TO WHICH THESE TERMS ARE ATTACHED, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR ALL ORDER FORMS. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER. THESE TERMS AND CONDITIONS AND THE ORDER FORM(S) (AND ANY ATTACHMENTS THERETO) TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND VERYABLE.
CUSTOMER AND VERYABLE AGREE THAT DISPUTES BETWEEN CUSTOMER AND VERYABLE REGARDING CUSTOMER'S USE OF WORKFORCE MANAGEMENT AND TECHNOLOGY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND CUSTOMER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. PLEASE ALSO REVIEW VERYABLE'S WORKFORCE MANAGEMENT PRIVACY POLICY.
1. DEFINITIONS
“Agreement” means these Terms and Conditions and the associated Order Form(s).
“Application(s)” or “SaaS Application(s)” means those Veryable software application programs set forth on an Order Form
which are made accessible for Customer to use under the terms of this Agreement.
“Billing Start Date” means the date the billing of the Monthly Service Fees commences as indicated on the applicable Order
Form. The Billing Start Date of the Monthly Service Fees for any Services ordered by Customer after the date of this Agreement which are incremental to Customer’s then-existing Services shall be the date the applicable Order Form is executed by Veryable and Customer.
“Customer Content” means all content Customer, or others acting on behalf of or through Customer, posts or otherwise inputs
into the Services.
“Documentation” means technical publications published by Veryable relating to the use of the Services.
“Implementation Fee(s)” means the one-time charges (as described in the Order Form) associated with the provisioning, configuration and related support/services associated with implementation of any Services.
“Initial Term” means the initial term of the Services as indicated on the Order Form.
“Monthly Service Fee(s)” means the monthly fees described in an Order Form. Monthly Service Fees include fees for usage of the Applications and the Services. Billing of the Monthly Service Fee(s) commences on the Billing Start Date.
“Order Form” means an order form mutually agreed upon by Veryable and Customer setting forth the items ordered by Customer and to be provided by Veryable and the fees to be paid by Customer.
“Personal Data” means information concerning individually identifiable employees of Customer that is protected against disclosure under applicable law or regulation.
“Renewal Term” means the renewal term of the Services as indicated on the Order Form.
“Services” means accessibility to the commercially available version of the Applications by means of access to the password protected customer area of a Veryable website, and all such services, items and offerings accessed by Customer therein.
“Supplier” means any contractor, subcontractor or licensor of Veryable providing software and/or services to Veryable which are
incorporated into or otherwise related to the Services.
“Term” means the Initial Term and any Renewal Terms thereafter.
"Auto-Schedule" means the tool that calculates Customer's labor demand, analyzes available labor supply, and fills labor gaps via the Veryable on-demand labor marketplace
2. TERM
2.1 The Services shall commence on the Billing Start Date, and shall continue for the Initial Term or until terminated in accordance with the provisions hereof. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated in accordance with the provisions hereof.
2.2 Either party may terminate the Services and this Agreement to be effective at the expiration of the then current Term upon no less than sixty (60) days prior written notice.
2.3 Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, Veryable may suspend the
Services immediately upon notice in the event of any Customer breach of Sections 4 (Rights to Use), or 5 (Acceptable Use).
2.4 In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party’s reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.
2.5 If the Agreement is terminated for any reason:
(a) Customer shall pay Veryable within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, provided however, if Customer terminates for material breach of the Agreement by Veryable, Veryable shall refund Customer any pre-paid fees for services not delivered by Veryable; (b) Customer’s right to access and use the Applications shall be revoked and be of no further force or effect; (c) Customer agrees to timely return all Veryable-provided materials related to the Services to Veryable at Customer’s expense or, alternatively, destroy such materials and provide Veryable with an officer’s certification of the destruction thereof; and (d) All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
3. FEES AND PAYMENT
3.1 Customer shall pay Veryable the Implementation Fees the Contract Fees and any additional one time, set-up or recurring fees, all as defined on the Order Form. Billing will commence on the Billing Start Date with the Contract Fees to be billed on the frequency set forth on the Order Form (“Billing Frequency”). Unless otherwise indicated on the Order Form, Veryable will bill Customer for all implementation services in advance. If Customer believes that Veryable has billed Customer incorrectly, Customer must contact Veryable no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit.
3.2 Veryable may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Veryable thirty (30) days after the mailing date of the invoice. 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. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Veryable's net income.
4. RIGHTS TO USE
4.1 Subject to the terms and conditions of the Agreement, Veryable hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-assignable right to use during the Term and for internal business purposes only: a) the Applications and related Services, including the Documentation and training materials; and, b) added third party software, libraries, or other components, which form a part of the Services. The Services contain proprietary trade secret technology of Veryable and its Suppliers. Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law. Customer shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Customer acknowledges and agrees that the right to use the Services is limited based upon authorized Usage and the amount of the Monthly Service Fees to be paid by Customer. Customer agrees to
use only the modules and/or features described on the Order Form. Customer agrees not to use any other modules or features unless Customer has licensed such additional modules or features. Customer may not relicense or sublicense the Services, or otherwise permit use of the Services (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of Veryable. No license, right, or interest in any Veryable trademark, trade name, or service mark, or those of Veryable’s licensors or Suppliers, is granted hereunder. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with applicable laws and regulations.
4.2. Customer may authorize its third party contractors and consultants to access the Services through Customer’s administrative access privileges on an as needed basis, provided Customer: a) abides by its obligations to protect Confidential Information as set forth in this Agreement; b) remains responsible for all such third party usage and compliance with the Agreement; and c) does not provide such access to a competitor of Veryable who provides similar services.
4.3 Customer acknowledges and agrees that, as between Customer and Veryable, Veryable retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing. Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.
4.4 Veryable will make updates and upgrades to the Services (tools, utilities, improvements, third party applications, general enhancements) available to Customer at no charge as they are released generally to its customers as part of the Services. Customer agrees to receive those updates automatically as part of the Services. Veryable also may offer new products and/or services to Customer at an additional charge. Customer shall have the option of purchasing such new products and/or services under a separate Order Form.
4.5 Veryable reserves the right to change the Services, in whole or in part, including but not limited to, the Internet based services, technical support options, and other Services-related policies. Customer’s continued use of the Services after Veryable posts or otherwise notifies Customer of any changes indicates Customer’s agreement to those changes.
5. ACCEPTABLE USE
5.1 Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of this Agreement.
5.2 Customer represents and warrants to Veryable that Customer has the right to publish and disclose the Customer Content in connection with the Services. Customer represents and warrants to Veryable that the Customer Content: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, or, (c) is not hateful or threatening.
5.3 Customer will not (a) use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the Veryable systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or, (f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.
6. CONNECTIVITY AND ACCESS
Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software and third party services); and (b) provide Veryable and Veryable’s representatives with such physical or remote access to Customer’s computer and network environment as Veryable deems reasonably necessary in order for Veryable to perform its obligations under the Agreement. Customer will make all necessary arrangements as may be required to provide access to Customer’s computer and network environment if necessary for Veryable to perform its obligations under the Agreement. Veryable is hereby (i) granted access to such Customer data to perform its obligations under the Agreement and (ii) authorized to audit the number of Active Employee counts or other transactions that have occurred to measure Usage.
7. IMPLEMENTATION AND SUPPORT
7.1 Implementation. Veryable will configure the Services utilizing scheduled remote resources. Software module configuration will be based on information and work flows obtained from Customer during the discovery portion of the implementation. Customer shall provide Veryable with necessary configuration-related information in a timely manner to ensure that mutually agreed implementation schedules are met.
7.2 Standard Support. Veryable will provide telephone support 8:00 a.m. to 5:00 p.m., local time, Monday – Friday. If 24/7 support is requested, an additional fee may be imposed.
8. CUSTOMER CONTENT
Customer shall own all Customer Content. Veryable acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Notwithstanding the foregoing, Customer grants Veryable permission to combine Customer’s business data with that of other customers in a manner that does not identify the Customer or any individual in order to evaluate and improve the services Veryable offers to customers. In addition, Veryable may, but shall have no obligation to, monitor Customer Content from time to time to ensure compliance with the Agreement and applicable law.
9. SERVICE LEVEL AGREEMENT
Veryable shall: (a) provide basic support for the Services at no additional charge, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime in accordance with Veryable’s standard maintenance windows, or (ii) any unavailability caused by circumstances beyond Veryable’s reasonable control, including without limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Veryable employees), internet service provider failures or delays, or denial of service attacks, and (iii) provide Services in accordance with applicable laws and government regulations.
10. LIMITED WARRANTY; DISCLAIMERS OF WARRANTY
10.1 Veryable represents and warrants to Customer that the Services, under normal operation as specified in the Documentation and when used as authorized herein, will perform substantially in accordance with such Documentation during the Term.
10.2 Veryable’s sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty is limited to Veryable’s reasonable commercial efforts to correct the non-conforming Services at no additional charge to Customer. In the event that Veryable is unable to correct material deficiencies in the Services, after using Veryable’s commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer’s sole and exclusive remedy. Veryable’s obligations hereunder for breach of warranty are conditioned upon Customer notifying Veryable of the material breach in writing and providing Veryable with sufficient evidence of such non-conformity to enable Veryable to reproduce or verify the same.
EXCEPT AS PROVIDED FOR IN THIS SECTION 10, VERYABLE HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, VERYABLE MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES, THE SAAS APPLICATIONS NOR ANY RESULTS TO BE ACHIEVED THEREFROM.
11. INDEMNIFICATION
11.1 Veryable shall defend Customer and its respective directors, officers, and employees (collectively, the “Customer Indemnified Parties”), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a “Claim”) alleging that the permitted uses of the Services infringe or misappropriate any United States or Canadian copyright or patent and will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of Veryable’s settlement of such a Claim. In the event that a final injunction is obtained against Customer’s use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in Veryable’s opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, Veryable, at Veryable’s option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue using the Services as provided in the Agreement, (b) replace or modify the Services so that the Services become non-infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Customer of the Monthly Service Fees paid by Customer for the infringing elements of the Services covering the period of their unavailability.
11.2 Veryable shall have no liability to indemnify or defend Customer to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than Veryable; (b) use of the Services other than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, service or software not provided by Veryable, where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Customer other than in accordance with the terms of the Agreement. Notwithstanding the foregoing, with regard to infringement claims based upon software created or provided by a licensor to Veryable or Suppliers, Veryable’s maximum liability will be to assign to Customer Veryable’s or Supplier’s recovery rights with respect to such infringement claims, provided that Veryable or Veryable’s Supplier shall use commercially reasonable efforts at Customer’s cost to assist Customer in seeking such recovery from such licensor.
11.3 Customer shall defend Veryable, its suppliers and all respective directors, officers, employees, agents and independent contractors ( collectively, the “Veryable Indemnified Parties”) harmless, from and against any and all of the following: (a) employment-related Claims arising out of customer’s use of the Services; (b) Customer’s modification or combination of the Services with other services or software, provided that such Customer modification or combination is the cause of such infringement and was not authorized by Veryable; or, (c) a Claim that the customer content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person. Customer will have sole control of the defense of any such action and all negotiations for its settlement or compromise. Veryable will cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of any such action. Customer will indemnify and hold harmless the Veryable Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claims by a court of applicable jurisdiction or as a result of Customer’s settlement of such a Claim.
11.4 The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay’s impact on the defense. The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall cooperate fully, at the indemnifying party’s request and expense, with the indemnifying party in the defense, settlement or compromise of any such action. The indemnified party may retain its own counsel at its own expense, subject to the indemnifying party’s rights above.
12. LIMITATION OF LIABILITY
12.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, VERYABLE AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES.
12.2 EXCEPT FOR VERYABLE’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 ABOVE, THE TOTAL AGGREGATE LIABILITY OF VERYABLE OR VERYABLES’ SUPPLIERS TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY VERYABLE FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.
12.3. EXCEPT FOR VERYABLE’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 ABOVE, IN NO EVENT SHALL VERYABLE OR VERYABLE’S SUPPLIERS, THEIR RESPECTIVE AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER VERYABLE OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.
12.4 EXCEPT WITH RESPECT TO LIABILITY ARISING FROM VERYABLES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, VERYABLE DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), CUSTOMER’S CONTENT OR APPLICATIONS, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.
13. CONFIDENTIAL INFORMATION
13.1 “Confidential Information” means information that is: i) disclosed between the parties after the date of this Agreement that is considered confidential or proprietary to the disclosing party; and ii) identified as “confidential” at the time of disclosure, or would be reasonably obvious to the receiving party to constitute confidential information because of legends or other markings, by the circumstances of disclosure or the nature of the information itself. Additionally, Customer acknowledges and agrees that the Software (and Software documentation), and the specifications shall be deemed to be Veryable Confidential Information and trade secret.
13.2 Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties (except the parent company or the wholly owned subsidiaries of the receiving party who have a need to know) the other party’s Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party.
13.3 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and who are under obligations of non-disclosure agreement at least as stringent as this section, or (c) by law (including the applicable public record laws), or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this section, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction. The obligation of confidentiality shall survive for three (3) years after the disclosure of such Confidential Information.
13.4 This Agreement imposes no obligation upon either party with respect to the other party’s Confidential Information which the receiving party can establish by legally sufficient evidence: (a) was rightfully possessed by the receiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party, (b) is generally known to the public without violation of this Agreement; (c) is obtained by the receiving party in good faith from a third party having the right to disclose it without an obligation with respect to confidentiality; (d) is independently developed by the receiving party without use of the disclosing party’s confidential information, which can be shown by tangible evidence.
14. ADDITIONAL TERMS
14.1 Auto-Schedule. If enabled, Customer authorizes Veryable to post work opportunities and accept Operators in accordance with and governed by the Business Services and Platform Agreement, which is incorporated by reference.
15. GENERAL PROVISIONS
15.1 Non-Exclusive Service. Customer acknowledges that Workforce Management Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Veryable’s ability to provide the Workforce Management Services or other technology, including any features or functionality developed for Customer, to other parties.
15.2 Personal Data. Customer hereby acknowledges and agrees that Veryable’s performance of this Agreement may require Veryable to process, transmit, and/or store Customer Personal Data, which may include the Personal Data of the Customer employees and employees of Customer affiliates. By submitting Personal Data to Veryable, Customer agrees that Veryable and its affiliates may process, transmit and/or store Personal Data only to the extent necessary for, and for the sole purpose of, enabling Veryable to perform its obligations under this Agreement. In relation to all Personal Data provided by or through the Customer to Veryable, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws and regulations. Customer agrees to obtain all necessary consents as needed under applicable data protection laws and make all necessary disclosures before including Personal Data in Content and using the Workforce Management Services. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in the Content, including information which any authorized user shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing Personal Data by Veryable under this Agreement, including that such processing according to Customer’s instructions will not place Veryable in breach of applicable data protection laws. Prior to processing, Customer will inform Veryable about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions. Customer is responsible for ensuring that the Services meet such restrictions or special requirements.
15.3 Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.
15.4 Notices. All notices given under the Agreement shall be in writing and sent postage pre-paid, if to Veryable, to the Veryable address on the Order Form, or to its Customer, to the billing address on the Order Form.
15.5 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
15.6 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
15.7 Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
15.8 Entire Agreement and Amendment. This Agreement (including all Order Forms, Schedules, and Exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject of matter of this Agreement. Order Forms may be amended solely in a writing signed by both parties. Veryable reserves the right to change these Terms and Conditions at any time, effective upon making the modified provisions available or by notifying you directly. You are responsible for regularly reviewing these Terms and Conditions. Continued use of the Services after any such changes are made to these Terms and Conditions shall constitute your consent to such changes.
15.9 Publicity. Veryable may include Customer’s name and logo in its customer lists and on its website. Upon signing, Veryable may issue a high-level press release announcing the relationship and the manner in which Customer will use Veryable’s Services. Veryable shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
15.10 Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Workforce Management Services. Customer agrees that such export control laws govern its use of the Services, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no Services, software or Documentation will be exported, directly or indirectly, in violation of these laws.
15.11 No Third Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
15.12 Independent Contractor. The parties have status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
15.13 Statistical Information. Veryable may anonymously compile statistical information related to the performance of the Services for the purposes of improving the Workforce Management Service, provided that such information does not identify Customer’s data or include Customer’s name.
15.14 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state and country in which Veryable is incorporated without regard to any conflict of laws provisions. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement and waive and "opt out" of the Uniform Computer Information Transactions Act (UCITA), or such other similar law.
16. ARBITRATION, CLASS WAIVER AND JURY WAIVER
16.1 Applicability of Arbitration Agreement. All claims and disputes arising out of or relating to this Agreement that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that Customer and Veryable are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
16.2 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitration and the rights and liabilities, if any, of Customer and Veryable. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Customer and Veryable.
16.4 Waiver of Jury Trial. CUSTOMER AND VERYABLE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JURY. Customer and Veryable are instead electing to have claims and disputes resolved by arbitration. In any litigation between Customer and Veryable over whether to vacate or enforce an arbitration award, CUSTOMER AND VERYABLE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
16.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.