Last Update: September 22, 2020.
Startwise together with its subsidiaries, affiliates, predecessors, successors, and assigns (“Startwise”, “we”, or “us”) is providing services, products, applications, websites, and materials related to Hiring, Ramp Up, Performance, and Retention (“Services”) to you, our client (“Client”).
Whereas, Client (together with Startwise, the “Parties”, or individually “Party”) desires to engage Startwise to provide these Services under the terms of services (“TOS”) forth below.
1. Services and Payment
Startwise agrees to complete the Services and provide any deliverables attached to any Order Form. Client will pay Startwise a fee (“Fees”) in connection with the Services as further described in any Order Form.
Upon receipt of an invoice for the Fees from Startwise, Client shall pay the undisputed amounts within thirty (30) days of receipt. Failure to do so may result in late interest payments as permitted under law.
Startwise shall not be authorized to incur on behalf of Client any expenses without the prior written consent of Client.
3. Ownership; Intellectual Property
Startwise shall retain ownership of all rights, titles, and interests (including patent, copyright, trade secret, inventions, mask work, trademark, database, and all other rights of any sort) in pre-existing materials provided to Client in connection with this TOS.
Client shall retain ownership of all rights, titles, and interests (including patent, copyright, trade secret, inventions, mask work, trademark, database, and all other rights of any sort) in pre-existing materials provided to Startwise in connection with this TOS.
Upon commencement of services, Startwise shall provide the Client with a digital interface for leaders to build, develop, and retain their teams via its JobOS platform (“Preliminary Startwise IP”). Startwise grants Client a non-exclusive, perpetual, irrevocable, world-wide license to use, modify or exploit Preliminary Startwise IP.
Over the course of the Services, Startwise shall modify the Preliminary Startwise IP to meet Clients needs, specifications, requests, and needs as outlined in these Services (“Developed Client IP”). Client shall retain exclusive ownership of Developed Client IP. Client shall provide Startwise with an irrevocable, perpetual, world-wide license to use, modify, and exploit any developer Client IP.
Startwise may use, license, exploit, update, change or otherwise modify Preliminary Startwise IP including future modifications and developments without restrict or consent from the Client.
4. Confidentiality; Proprietary Information
“Proprietary Information” includes, but is not limited to, all business, technical, and other proprietary information belonging to the Client, and any Client information not generally known by actual or potential competitors of the Client or by the public generally. Some examples of Proprietary Information are:
Startwise shall maintain the confidentiality of the Proprietary Information and will not disclose it to any third party without the prior written consent of Client unless such third party is a services provider of the Startwise subject to a written agreement requiring it to maintain the confidentiality of the Proprietary Information with the same limits and restrictions as the Startwise. Startwise will use the Proprietary Information only for performing the Services. The obligations in this paragraph shall not apply to any information that (i) is made generally available to the public without breach of this TOS, (ii) is disclosed to Startwise by a third party without restriction, or (iii) was in Startwise’s lawful possession before the disclosure and was not obtained by Startwise either directly or indirectly from Client. Startwise may disclose Proprietary Information as required by law or court order, but must give Client prompt written notice and use its best efforts to limit disclosure.
Either party may terminate this TOS at any time, with or without cause, with notice of fourteen days. Startwise shall be paid for any portion of the Services that have been performed before termination.
Upon termination, Startwise shall return to Client all of Client’s data, information, logins, and all other materials owned by Client.
Sections 3-4 and 6-8 of this TOS shall survive any termination or expiration.
6. Limitation on Liability
With respect to any claims arising from or related to this TOS, neither party shall be liable under any legal or equitable claim or theory for (i) special, indirect, incidental, punitive, exemplary, or consequential damages of any kind whatsoever, including lost revenues or profits, or loss of goodwill, or (ii) any damages in excess of the total fees to be paid by Client to Startwise under this TOS. This limitation of liability is valid and effective regardless of whether claims are based in contract, tort, or otherwise, and regardless of whether the party was advised or had reason to know of the possibility of such damages or liability. This section does not apply to indemnification obligations.
Company represents and warrants that:
Client represents and warrants that:
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS-IS” AND COMPANY DISCLAIMS ALL OWNER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING OR RELATED TO THE SERVICES OF THIS TOS, STATEMENTS OF WORK, OR ATTACHMENTS.
The failure of either party to enforce its rights under this TOS at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this TOS will be effective unless in writing and signed by both parties. In the event that any provision of this TOS shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this TOS shall otherwise remain in full force and effect and enforceable. This TOS shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflicts of laws provisions. Any legal action or proceeding relating to this TOS shall be brought exclusively in the state or federal courts located in the County of New York City, and each party consents to jurisdiction. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. Either party may assign this agreement without the consent of the other party. This TOS constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.