Revised:  June 9, 2018

These Terms of Service (“Terms”) govern your use of the HR Monitor website (“Site”) and any HR Monitor mobile application, application programming interfaces, and other services offered by HR Monitor, as well as services offered through third parties integrating HR Monitor functionality (“Services”).  HR Monitor, Inc., registered in Delaware at 2035 Sunset Lake Road, Suite B-2, Newark, DE 19702 (“HR Monitor” “we” or “us”) provides the Site and Services.  “You” refers to you as a user of the Site or Services.

BY USING THE SITE OR SERVICES, YOU ARE AGREEING TO THESE TERMS.  PLEASE READ THEM CAREFULLY.  IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THESE TERMS, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS, THEN WE ARE UNWILLING TO PROVIDE THE SITE AND SERVICE TO YOU, AND YOU MAY NOT USE IT.

  1. About the Site and Services

HR Monitor provides Services for measuring employee engagement.  HR Monitor offers customers monthly, real-time tracking tools, including the ability to create surveys.

  1. Eligibility

You must be at least 18 years old to use the Site or the Services and any use of or access to the Site or Services by anyone under 18 years of age is strictly prohibited and is in violation of these Terms.

  1. Fees and Payment

Fees.  The Services are provided to you for the subscription period that you may choose (the “Subscription Period”), at our then-current pricing as set forth at ../pricing/, or such other pricing as agreed by the parties and set forth in an invoice (the “Fees”).  You agree to pay any applicable Fees.  Unless otherwise agreed by the parties in an invoice, Fees shall automatically be adjusted upon each renewal of your Subscription Period to our then-current pricing.  In addition, we reserve the right to change the Fees, or institute new or additional Fees, at any time upon notice to you.

Upgrades, Downgrades, and Changes.  If you upgrade to a higher level of service, we will bill you for the upgraded plan immediately.  You may change your level of service at any time by contacting us at team@hrmonitor.com.  If you choose to downgrade your account, you may lose access to certain features.

No Refunds.  Fees are non-refundable.  There will be no refunds or credits for unused or partially used Subscription Periods or downgrades; however, the Services will remain active for the length of the paid Subscription Period.

Authorization.  By agreeing to these Terms, you are authorizing us and our third party payment processor to charge your on-file credit card, PayPal account, or other approved methods of payment for level of service you have selected.  We may use a third party service provider to process your payment in connection with your use of the Services.

Special Offers.  Occasionally we will offer special promotions to our customers that we refer to as “special offers.”  This can include a promotional activity associated with the purchase of a subscription package.  These offers may be for a limited time only.

  1. Additional Terms

Some of our Services may have additional terms and conditions (“Additional Terms”).  Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service.  By using that Service, you agree to the Additional Terms.  If those Additional Terms conflict with these Terms, the more specific Additional Terms will apply to the relevant Services to the extent of such conflict.

  1. Support and Promotional Messages

We offer various text/SMS message programs from time to time (“Message Program”).  In addition to any Additional Terms specifically disclosed when you enroll for a Message Service, by providing us with your mobile number, you are agreeing to receive automated text/SMS messages from us to your mobile number.  Consenting to receive text/SMS messages is not a requirement in order to make a purchase from us.  Reply STOP at any time to stop receiving text/SMS messages from us in connection with the Message Program you signed up for.  Message and data rates may apply.  Please contact your wireless carrier for pricing details if you have any questions regarding your plan’s specific rates.

  1. Acceptable Use of the Site and Services

You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account.  Our goal is to create a useful and safe user experience.  To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us.  When you use the Site or Services, you may NOT:

  • violate any law or regulation;
  • violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
  • post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
  • send unsolicited or unauthorized advertising or commercial communications, such as spam;
  • engage in scrapping (extracting data from our Site or Services via an automated process, such as a bot or webcrawler) for spamming purposes, including for example for the purposes of selling our users’ data, such as to recruiters, headhunters, and job boards;
  • transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
  • stalk, harass, or harm another individual;
  • impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
  • attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Services;
  • attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services; or
  • advocate, encourage, or assist any third party in doing any of the foregoing.
  1. User Content

The Site and some of our Services allow you to upload, submit, store, send, or receive content and data (“User Content”).  When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows:  you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content.  This license is for the purpose of operating, promoting, improving, and providing the Site and Services (including any new Services) to you and others.  Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes.  This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content.  We may exercise our rights under this license anywhere in the world.  Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services.  In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site or Services.

You promise that:

  • you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
  • your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

We may refuse to accept or transmit User Content for any reason.  We may remove User Content from the Site or Services for any reason.

Notwithstanding the foregoing license grant to User Content, we will own all data and results from surveys, survey questions, and survey result histories, and you hereby assign to us any and all rights you may have in those works to us.

  1. Ownership

Other than User Content, we own or license all right, title, and interest in and to (a) the Site and Services, including all software, text, media, and other content available on the Site and Services (“Our Content”); and (b) our trademarks, logos, and brand elements (“Marks”).  The Site and Services, Our Content, and Marks are all protected under U.S. and international laws.  The look and feel of the Site and Services are copyright © HR Monitor. All rights reserved.  You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from HR Monitor.

  1. Copyright and Intellectual Property Policy

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.  If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:

  • Your address, telephone number, and email address.
  • A description of the copyrighted work that you claim has been infringed.
  • A description of where the alleged infringing material is located.
  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
  • A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.

Copyright Agent:

Trausti Hardarson
traustihardar@hrmonitor.com

For clarity, only copyright infringement notices should go to our Copyright Agent.  You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.

If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:

  • Your physical or electronic signature;
  • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement.  Please note that when we forward the counter-notification, it includes your personal information.  By submitting a counter-notification, you consent to having your information revealed in this way.  We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled.  If we receive such notification we will be unable to restore the material.  If we do not receive such notification, we may reinstate the material.

  1. Privacy

Your privacy is very important to us.  Our Privacy Policy explains how we collect, use, protect, and when we share personal information and other data with others.  You are responsible for maintaining the confidentiality of your account information, including your username and password.  You are responsible for all activities that occur under your account and you agree to notify us immediately of any unauthorized access or use of your account.  We are not responsible or liable for any damage or loss related to any unauthorized access or use of your account.

  1. Links

The Site and Services may contain links to other websites and online resources or alternatively, you may be redirected to another website.  A link to a third party’s website or a redirect to third party’s website does not mean that we control the third party’s website.  We are not responsible or liable for any damage or loss related to the use of any third-party website.  You should always read the terms and conditions and privacy policy of a third-party website before using it.

  1. Changes to the Site or Services

We enhance and update the Site and Services often.  We may change or discontinue the Site or Services at any time, with or without notice to you.

  1. Termination

We reserve the right to not provide the Site or Services to any person.  We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion.  If you violate any of these Terms, your permission to use the Site and Services automatically terminates.

  1. Disclaimer and Limitations on Our Liability

YOU USE THE SITE AND SERVICES AT YOUR OWN RISK.  THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

IN PARTICULAR, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES.  OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY:  (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

You understand and agree that we have set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of a bargain between the parties.

  1. Indemnification

You agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account.  If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.

  1. Arbitration Agreement & Waiver of Certain Rights

You and HR Monitor agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings.  You and HR Monitor hereby waive any right to a jury trial of any Claim (defined below).  All controversies, claims, counterclaims, or other disputes arising between you and HR Monitor relating to these Terms or the Offerings (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”).  The arbitration will be heard and determined by a single arbitrator.  The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction.  The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, HR Monitor will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive.  In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.

This arbitration agreement does not preclude you or HR Monitor from seeking action by federal, state, or local government agencies.  You and HR Monitor also have the right to bring qualifying claims in small claims court.  In addition, you and HR Monitor retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.

Neither you nor HR Monitor may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim.  Claims may not be arbitrated on a class or representative basis.  The arbitrator can decide only your and/or HR Monitor’s individual Claims.  The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.

If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect.  No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement.  Such a waiver shall not waive or affect any other portion of this Terms.  This Section of the Terms will survive the termination of your relationship with HR Monitor.

THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF.  OTHER RIGHTS THAT YOU OR HR MONITOR WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

  1. Other Provisions

Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.

You agree that the U.S. Federal Arbitration Act, applicable U.S. federal law, and the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and us.

Subject to the arbitration agreement in Section 16 above, you agree that any action of whatever nature arising from or relating to these Terms, the Site, or Services will be filed only in the state or federal courts located in Santa Clara, California.  You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.

If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.

The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.

We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.

  1. Changes to these Terms

From time to time, we may change these Terms.  If we change these Terms, we will give you notice by posting the revised Terms on the Site.  Those changes will go into effect on the Revision Date shown in the revised Terms.  By continuing to use the Site or Services, you are agreeing to the revised Terms.

Please print a copy of these Terms for you records and PLEASE check the Site frequently for any changes to these Terms.

SMRH:485816803.5