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Enterprise Platform Agreement

This Enterprise Platform Agreement (this “Agreement”) is between Roots Technologies, Inc. (“Roots”) and the Customer (“Employer”) and is effective as of the initial date of install and/or use of any Roots product or service (the “Effective Date”).  


Background
Roots has developed and makes available a human resources platform (the “Roots Platform”), which, among other things, organizes and displays End User (as defined below) paid time off, provides End Users a mechanism to keep track of and manage paid time off, assists End Users in submitting and managing candidate referrals, and offers Employers deeper insights into their operations and operational efficiencies.

1. Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:

Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity. 

“Confidential Information”
means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure, including any personally identifiable information provided by such party.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Order” means an order form, insertion order, quote or other similar document (including any online form) that sets forth the specific Services and pricing associated therewith, and that references this Agreement and is mutually agreed upon in writing by the parties.

“Employer Content” means  information and content regarding End Users, paid time off, candidate referrals and other material supplied or made available to Roots by Employer through the use of or access to the Services.

Services” means the Roots products and services made available by Roots to Employer as described in the applicable Order (including the Roots Platform, the PTO Ninja Slack bot, the AutoResponder Slack bot, the Referral Booster Slack bot, Roots applications and APIs), and subsequent updates or upgrades of any of the foregoing made generally available by Roots.

End Users” means Employer’s employees, advisors and consultants who are end users that subscribe to human resources content and services via the Roots Platform.

2. Services
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Roots will make the Services available to Employer pursuant to this Agreement, and hereby grants Employer a non-exclusive right to access and use the Services in accordance with the applicable Order.

2.2 Employer Limitations.  The rights granted herein are subject to the following restrictions (the “License Restrictions”).  Employer will not (nor will it permit any third party to):
• reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the Services;
• transfer, resell, lease, license, or assign Services or otherwise offer the Services on a standalone basis;
• use the Services to build a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or
• use the Services outside the scope expressly permitted hereunder.

2.3 Employer Data. The parties acknowledge that as between them, all data entered by  Employer or its representatives into Roots’s systems (“Employer Data”) is owned by Employer. Under no circumstances will Roots withhold the Employer Data from Employer or prevent Employer from obtaining access to Employer Data.

2.4 Employer Responsibilities. Employer will (a) be responsible for all use of the Services under its account, (b) be solely responsible for the accuracy, quality, integrity and legality of Employer Content, and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Roots promptly of any such unauthorized access or use.  

2.5 Affiliates. Any Affiliate of Employer will have the right to enter into an Order executed by such Affiliate and Roots and this Agreement will apply to each such Order as if such Affiliate were a signatory to this Agreement.  With respect to such Orders, such Affiliate becomes a party to this Agreement and references to Employer in this Agreement are deemed to be references to such Affiliate.  Each Order is a separate obligation of the Employer entity that executes such Order, and no other Employer entity has any liability or obligation under such Order.

3 Fees
3.1 Payment. To the extent an Order includes any payment obligations Employer will make such payments in accordance with the Order.  Except as otherwise specified herein or in any applicable Order (a) fees are payable in United States dollars and (b) payment obligations are non-cancelable, and fees paid are non-refundable.  

3.2 Taxes. All amounts owed pursuant to the terms of this Agreement are exclusive of applicable federal, state, local or other taxes, duties and tariffs, including, but not limited to, sales, use, transfer, value-added, privilege, withholding or property taxes, import and export duties and tariffs or amounts levied in lieu thereof (collectively, “Taxes”).  Each party shall pay any and all Taxes imposed on such party with respect to the transactions contemplated by this Agreement.

4. Proprietary Rights and Confidentiality
4.1 Roots’s Ownership Rights. As between the parties, Roots exclusively holds all right, title and interest in and to the Roots Platform and Services.

4.2 Employer Content. As between the parties, Employer exclusively holds all right, title and interest in and to the Employer Content, and permits Roots to display and use Employer Content in connection with Services hereunder.

4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information  to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and  as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. 

4.4 Data Security. Each party shall: (a) employ appropriate and at least industry standard practices to protect all Confidential Information of the other party (including any personally identifiable information provided by the other party), and use and access such Confidential Information only for the purpose of performing its obligations or exercising its rights hereunder; (b) comply with all applicable laws relating to privacy and data protection; and (c) promptly provide the other party with written notice of any unauthorized access, use or disclosure involving such Confidential Information of which such party becomes aware, and reasonably cooperate with such other party in the investigation and resolution thereof.

5. Warranties and Disclaimers
5.1 Warranty. Roots warrants that it will, consistent with prevailing industry standards, maintain the Services in a manner which minimizes errors and interruptions in the Services and perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Roots or by third-party providers, or because of other causes beyond Roots’s reasonable control, but Roots shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  For any breach of this warranty, Employer’s sole and exclusive remedies are those under the Termination section below. 

5.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND Roots DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, EMPLOYER AGREES THAT Roots WILL HAVE NO LIABILITY ARISING FOR THE USE OR MISUSE OF ANY INFORMATION OBTAINED BY END USERS THROUGH THE SERVICES.

6. Indemnification
6.1 Indemnity by Roots. Roots will defend Employer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Employer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Employer for any damages finally awarded against (or any settlement approved by Roots) Employer in connection with any such Claim.  If the use of the Services by Employer has become, or in Roots’s opinion is likely to become, the subject of any claim of infringement, Roots may at its option and expense (i) procure for Employer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees for the Services.  Roots will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (a) compliance with designs, guidelines, plans or specifications provided by Employer; (b) use of the Services by Employer not in accordance with this Agreement; (c) modification of the Roots Service by or on behalf of Employer; (d) Employer Content; or (e) the combination, operation or use of the Services with other product(s) or services where the Services would not by themselves be infringing (clauses (a) through (e), “Excluded Claims”). 

6.2 Indemnification by Employer. Employer will defend Roots against any Claim made or brought against Roots by a third party arising out of the Excluded Claims, and Employer will indemnify Roots for any damages finally awarded against (or any approved settlement) Roots in connection with any such Claim.

6.3 Indemnification Process. The indemnified party shall give written notice to the indemnifying party promptly after learning of such claim, tender the defense and settlement of the claim to the indemnifying party, and provide the indemnifying party with reasonable assistance, at the indemnifying party’s expense, in connection with the defense and settlement of such claim.

7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.

8. Termination
8.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order and continue until terminated as set forth below.  The initial term of each Order will begin on the effective date of such Order and will continue for the term set forth therein. Except as set forth in such Order, the term of such Order will automatically renew for successive renewal terms equal to the length of the initial term of such Order, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Orders then in effect.  Each party may also terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

9. General
9.1 Statistical Information. Notwithstanding anything to the contrary, Roots shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Employer Data and data derived therefrom), and  Roots will be free (during and after the term hereof) to (i) use such information and data to develop, improve and provide Roots’s offerings, and (ii) disclose such information and data solely in aggregate or other de-identified form in connection with its business

9.2 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Services.

9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9.5 Relationship. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties. 

9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

9.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices must be sent to the address set forth below on the signature page hereto.

9.9 Entire Agreement. This Agreement comprises the entire agreement between Employer and Roots with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).

9.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

9.11 Government Terms. Roots provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Employer (or any of its Employers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Services were developed fully at private expense.

9.12 Interpretation. For purposes hereof, “including” means “including without limitation”.