OUR USE OF THE PROPRIETARY GOAQUATIX SOFTWARE SERVICE OFFERED AT GOAQUATIX.COM (THE “SERVICE”), IS SUBJECT TO THESE TERMS OF SERVICE. IN ORDER TO USE THE SERVICE, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH GOAQUATIX (“GOAQUATIX, LLC”). IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
If you are signing up for the Service on behalf of a Client, you represent that you are duly authorized to represent the entity and accept the terms of this Agreement on behalf of such entity, and any references to “you” in this Agreement refer to such entity and all of its employees, consultants and agents. You are responsible for all activity on the Service that occurs under your account.
1.1 This Agreement will remain in effect until all subscriptions granted in accordance with this Agreement have expired or this Agreement is terminated by you or GoAquatix (the “Term”). If you elect to use the Service for a free trial period, and do not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
1.2 Subscriptions purchased by you commence on the start date specified upon payment and continue for the subscription term selected at the time of payment. Subscriptions automatically renew, as described in Section 4.1.
1.3 You are solely responsible for the proper cancellation of your account. You may cancel your account at any time by emailing email@example.com.
1.4 GoAquatix may terminate this Agreement at any time in the event you materially breach this Agreement and do not cure such breach within 30 days of written notice (including notice by email) provided by GoAquatix. However, in the case of your nonpayment (including in the event when your credit card cannot be charged), GoAquatix may suspend your access to the Service upon any such nonpayment and may terminate this Agreement, if such breach is not remedied within 30 days of notice by GoAquatix to you. Further, GoAquatix may immediately terminate your access to the Service without liability if it has a good faith belief that you are in violation of Sections 3.1, 3.5 or 11 of this Agreement. GoAquatix may also downgrade, suspend or terminate your access to the Service without liability, after we provide you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications to this Agreement pursuant to Section 2.1 below, or (b) you do not log in to or otherwise use the Service for a period of 180 days or more if you have a paid account and for a period of 60 days or more if you have a free account. For instances other than non-payment or violation under Section 3.1, in the event you cancel your account or this Agreement is terminated by GoAquatix or you, GoAquatix will refund to you any prepaid fees covering any period of the term remaining after the date of termination for all subscriptions. However, no refund will be granted for the then-current month. Notice via email by GoAquatix to you will be sent to the email address you have provided to us.
1.5 In the event your account is terminated, other than in instances where it is terminated by GoAquatix for your nonpayment or violation of Section 3.1, you will continue to have the ability to download the information provided, inputted or uploaded to the Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination. After such 30-day period or if your account is terminated due to your nonpayment or violations of Section 3.1, GoAquatix shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, delete all of your Data contained in GoAquatix’s systems or otherwise in its possession or under its control.
2.1 The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. GoAquatix reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service, or to modify, add, or remove portions of this Agreement at any time after making such modified Agreement available to you. The revised Agreement will be effective immediately upon being made available to you, except that in the event any such modification materially alters your rights hereunder, GoAquatix will attempt to notify you directly by sending a message to the email address that you have provided to us. Your use of the Service after modifications to this Agreement become effective constitutes your binding acceptance of such changes. In the case of a material modification to this Agreement, you will be required to affirmatively agree to such modified Agreement. You can also review the most current version of this Agreement at any time at: http://www.bamboohr.com/terms.php. If you are dissatisfied with the terms of the Agreement or any modifications to the Agreement or Service, you agree that your sole and exclusive remedy is to terminate this Agreement and discontinue any use of the Service.
3.1 During the Term, GoAquatix grants you a limited, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (“Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates GoAquatix to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
Use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by GoAquatix;
Use the Service for any fraudulent or inappropriate purpose;
Attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
Duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of GoAquatix;
Use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting of the Data as contemplated in the Documentation; or
Rent, lease, distribute, or resell the Software, or use the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
3.2 GoAquatix shall: (i) provide you with basic support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which GoAquatix shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond GoAquatix’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with Applicable Law.
3.3 GoAquatix shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Services, and the security of your Data. GoAquatix shall not (a) disclose your Data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your Data except to provide the Service and prevent or address service or technical problems, or at your express request in connection with customer support matters. In the event we are compelled by Applicable Law to disclose your Data, we will provide you with notice thereof, (in advance, if possible) if permitted by Applicable Law.
3.4 You are solely responsible for your Data, and all uses of your Data that occur through your account.
3.5 If you integrate with GoAquatix using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period of time, as-determined solely by GoAquatix. If this occurs, GoAquatix reserves the right to throttle your API connections, or suspend or terminate your GoAquatix account.
4.1 Your subscription to the Service renews automatically for the same term selected upon initial payment (e.g., month-to-month, annual, etc.). You may change your subscription term at any time by contacting us using one of the methods set forth in the Contact Information section below. If you are paying by credit card, your credit card will be charged once a month for monthly subscriptions and at the time your annual subscription payment has been depleted based on your number of employees and subscribed services. GoAquatix will email you a receipt when your card has been charged. If your card cannot be charged, your access to Services may be suspended and you will need to update your card information in order to resume use. There will be no refunds or credits for partial months of service.
4.2 Annual subscription pricing requires a one-year minimum commitment. If you cancel your subscription, or your subscription is suspended for nonpayment, before the end of the one-year commitment period, you will no longer qualify for annual subscription pricing and you will be charged the difference between the monthly and annual commitment pricing for the number of months your subscription was active.
4.3 All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which we may be required to collect from you and remit to appropriate taxing authorities, you alone are responsible for payment of all such taxes or duties.
4.4 GoAquatix may at any time, upon notice of at least 90 days or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your annual subscription period will come into effect for any subsequent annual subscription periods and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
5.1 As between the parties, GoAquatix owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. GoAquatix may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
5.2 You retain all right, title and ownership interest to your Data. GoAquatix has no right, title or interest in any personally identifiable information related to your Data.
5.3 You have no obligation to give GoAquatix any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent you provide any Feedback to GoAquatix, GoAquatix may use and include any such Feedback to improve the Services or for any other purpose. Accordingly, if you provide Feedback, you agree that GoAquatix shall own all such Feedback and GoAquatix and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to GoAquatix.
5.4 From time to time during the Term, GoAquatix may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”), in each case pursuant to a statement of work executed by you and GoAquatix. GoAquatix shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use during the Term. GoAquatix may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
6.1 During the Term, GoAquatix may disclose your name as a customer of GoAquatix and/or subscriber of the Service, and you hereby grant GoAquatix the right to display your name and logo in its marketing materials and on GoAquatix’s public website, in each case in accordance with any branding guidelines you may provide to GoAquatix.
7.1 GoAquatix represents, warrants, and covenants as follows: (a) the Software will perform substantially in accordance with the technical requirements documents that are generally provided by GoAquatix in connection with the Software (“Documentation”); and (b) any professional services performed for you by GoAquatix will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, GOAQUATIX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. BAMBOOHR DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
7.3 EXCEPT FOR (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY GOAQUATIX FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
8.1 External Breach: In the event of a security breach by anyone other than your employee, contractor or agent, upon discovery of such breach, GoAquatix will: (a) initiate remedial actions that are in compliance with applicable law and consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the nature and scope of remedial actions BambooHR will undertake, and the timeline within which GoAquatix expects to remedy the breach.
8.2 Internal Breach: In the event of a security breach by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and shall notify GoAquatix immediately of the breach and steps you will take to remedy the breach.
9.1 You agree to indemnify, defend and hold harmless GoAquatix, and its affiliates, officers, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or connected with your use of the Software and/or Service in breach of this Agreement.
9.2 GoAquatix agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or connected with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall GoAquatix have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by GoAquatix, and (b) any content, information or data provided by you, your end users, or other third parties.
9.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnified party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 9, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
10.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Florida, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of Florida, and or the courts of the United States of America for the District of Florida. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
11.1 Each Party shall comply with all Applicable Law in connection with its own activities in relation to this Agreement. The Service can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to monitor your employees’ use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall GoAquatix be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
11.2 GoAquatix does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Law in the jurisdictions in which you use the Service, and any statements made by GoAquatix to you shall not constitute legal advice.
11.3 You acknowledge that GoAquatix exercises no control over your specific human resource practices implemented using the Service or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Service. You further agree and acknowledge that GoAquatix does not have a direct relationship with your employees and that you are responsible for all contact, questions, Data updates and collection, with your employees. In addition, you are responsible for the privacy (including adopting and posting your own privacy policies governing your treatment of your employees’ Data), collection, use, retention and processing of your employees’ Data, and providing any and all notices and information to your employees regarding the foregoing, in compliance with all applicable laws. GoAquatix hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service by you and/or your employees, contractors or agents.
11.4 You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the Service or Software, or any technical information about the Service or Software, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained.
11.5 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
12.1 If you use the iOS or Android version of the Service, you acknowledge the statements set forth in this Section. This Agreement is between you and GoAquatix only, not with Apple Inc. (“Apple”) or Google, Inc. (“Google”), and Apple or Google are not responsible for the Service or the functionality or content thereof. Apple or Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty and if you purchased a subscription to the Service through Apple or Google, then you may notify Apple or Google and Apple or Google will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by Applicable Law, Apple or Google has no other warranty obligation whatsoever with respect to the Service. As between Apple or Google and GoAquatix, GoAquatix is responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Service to conform to any warranty, subject to the terms of this Agreement. Apple or Google is not responsible for addressing any claims brought by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple or Google are not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple or Google, and Apple’s or Google’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple or Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.
13.1 The “eSignature Service” is a service provided by GoAquatix for two counterparties (usually a company, herein described as the “sending party,” subscribing to GoAquatix’s services and an employee, employee-candidate or contractor) to electronically sign documents (including, but not limited to, agreements, policies, forms, etc.). If you use the eSignature Service office offered by GoAquatix, you acknowledge and agree to the statements set forth in this Section. Whenever you sign a document using GoAquatix’s eSignature Service you affirmatively consent to using electronic signatures via the eSignature Service and consent to conducting electronic business transactions. You also confirm that you are able to access the eSignature Service and the document you are signing electronically. When using the eSignature Service for a particular document, your consent applies only to the matter(s) covered by that particular document.
13.2 You are not required to use the eSignature Service or accept electronic documents provided thereby. If you are an employee, employee-candidate or contractor and you choose to not use the eSignature Service, you may still sign the document manually by notifying the sending party that you are choosing to do so and by obtaining a non-electronic copy of the document from them. GoAquatix assumes no responsibility for providing you with a non-electronic version of the document. In the event you are choosing to sign the document manually, do not use the eSignature Service to sign the document or to return the document to the sending party.
13.3 If you have signed a document electronically using the eSignature Service and transmitted it back to the sending party, GoAquatix will provide you the opportunity to download and print a paper copy of the document at no charge. If you later withdrawn your consent to using the eSignature Service, please notify the sending party and stop using the eSignature Service. Note that the decision to stop using the eSignature Service after you have already used it does not change the legality of the documents you have previously signed using an electronic signature.
13.4 When counterparties sign a document electronically using the eSignature Service, the rights and duties associated with that document are solely those of the counterparties. GoAquatix is not a party to the document and carries no liability or responsibility with respect to the correctness, validity or enforcement of the document; nor does GoAquatix have any liability or responsibility with respect to the legal or non-legal aspects of the document or any dispute arising as a result of the document. GoAquatix’S sole responsibility is the eSignature Service and customer service associated therewith.
13.5 PLEASE NOTE THAT GOAQUATIX’S STATEMENTS CONTAINED HEREIN OR ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE GENERAL IN NATURE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. GOAQUATIX HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH GOAQUATIX ESIGNATURE SERVICE ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU MAY SIGN ELECTRONICALLY USING GOAQUATIX’S ESIGNATURE SERVICE.
14.1 This Agreement encompasses the entire agreement between you and GoAquatix with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by a written instrument executed by both parties. The failure of GoAquatix to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties, and shall not affect the validity and enforceability of any remaining provisions. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement. As used herein, the words “including,” “included” and “includes” mean inclusion without limitation. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without GoAquatix’s prior written consent. No part of this Agreement is intended or shall be construed as legal advice. GoAquatix shall not be liable for an errors or omissions in the content of this Agreement or for any actions taken in reliance thereon. If you have any questions regarding this Agreement please contact GoAquatix
15.1 If you have any questions about the Service or this Agreement, you may email us at firstname.lastname@example.org, or write to us at:
424 E. Central Blvd
Orlando FL 32801
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