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Humanly Terms and Conditions

These Standard Terms and Conditions (these “Terms”) apply to the purchase of a Humanly Subscription Service by you (“Customer” or “you”) from Humanly HR Inc. d/b/a Humanly and your use of the Application (as defined below), except to the extent different or additional terms have been agreed to by Customer and Humanly in writing. These Terms shall become effective on the earlier of the date you first access or use the Application and the date set forth in the applicable Order (the “Effective Date”). Humanly and Customer are sometimes referred to in these Terms collectively as “Parties” and individually as a “Party.” If the person accepting these Terms is doing so on behalf of a company or other legal entity, that person represents that he or she has the authority to bind the company or entity to these Terms.

1. DEFINITIONS. The following terms shall have the following definitions:

“Administrator” means an individual to whom Customer has granted certain administrative control rights over Customer’s subscription plan, including, but not limited to, the right to view Customer Content submitted by Users.

“User Content” means data, text, responses, information, and other content uploaded or submitted to the Subscription Service by Users. User Content does not include usage or statistical information collected by Humanly related to use of the Subscription Service that does not include the actual contents of User Content.

“Customer Content” means data, text, responses, information, and other content uploaded or submitted to the Subscription Service by Customer and assigned administrators. Customer Content does not include usage or statistical information collected by Humanly related to use of the Subscription Service that does not include the actual contents of Customer Content.

“Documentation” means any written or electronic user guides, instructions, help and training materials, technical materials, or other documentation Humanly provides regarding use of the Subscription Service.

“Force Majeure Event” means any act or event that (a) prevents a Party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other Party’s (the “Performing Party”) obligations under these Terms, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds.

“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, moral rights, trademarks, service marks, trade secrets, rights in databases, know-how and any other intellectual property rights (including the right to protect Confidential Information, as defined in Section 11) recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded.

“Order” means an electronic or written order or agreement form incorporating these Terms that sets forth the commercial details of Customer’s subscription to a Humanly Subscription Service, sets forth the fees for such Subscription Service, and is signed by an authorized representative of each Party.

“Users” means an individual - in most cases a job candidate - using the Subscription Service for the purpose of submitting User Content, including, but not limited to, screening question responses and resume data.

“Renewal Term” has the meaning set forth in Section 7.1.

“Application” means the Humanly web application accessible at www.humanly.io, and all other applications made available and owned by Humanly. This includes but is not limited to the Humanly websites used for candidate screening and reference checks and the Humanly widget used on third party sites.

“Software” means all computer software underlying the Subscription Service, including, without limitation, software (in object or source code form), programming code, scripts, and HTML code contained in the Subscription Service.

“Subscription Service” means Humanly’s proprietary candidate screening, scheduling and engagement service, as well as reference check service, made available via the Application, together with any updates, upgrades, fixes and enhancements thereto, as specified in the Order. Without limiting the foregoing, Subscription Service includes the Software (defined below) and Documentation.

2. SERVICES & USE

2.1 Subscription Service. Subject to these Terms, and in consideration of the fees specified in an Order, Humanly will use commercially reasonable efforts to make the Subscription Service available to Customer during the Term. Humanly hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Subscription Service during the Term for Customer’s business purposes, pursuant to the terms and conditions of these Terms and in accordance with the Documentation. All rights in and to the Subscription Service not expressly granted herein are reserved to Humanly.

2.2 Use Restrictions. Customer shall not, and shall not permit any third party to: (i) copy, distribute, or disclose any part of the Subscription Service or Application in any medium, including, without limitation, by any automated or non-automated “scraping”; (ii) use any automated system, including, without limitation, robots, spiders, etc., to access the Subscription Service or Application in a manner that sends more request messages to Humanly’s servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code for the Subscription Service or Applications; (iv) modify, or create derivative works based on, the Subscription Service or Applications; (v) rent, lease, distribute, sell, resell, assign, or otherwise transfer any rights to use the Subscription Service or Applications, or any portion thereof; (vi) remove any proprietary notices from the Subscription Service; (vii) submit to or through the Subscription Service any Customer Content that infringes the Intellectual Property Rights of any third party or is otherwise unlawful, or that contains malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (viii) bypass any measures Humanly may use to prevent or restrict access to the Subscription Service or Application, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Subscription Service, the Application, or the Software; or (ix) except to the extent permitted under applicable law, access or use the Subscription Service or Application for the purpose of developing a competing product or service, building a product or service using similar functions, features, or graphics, or conducting benchmarking tests or competitive analysis.

2.3 Login Credentials. Each set of login credentials for the Subscription Service may be used only by a single, individual Administrator. Customer agrees to promptly notify Humanly of any unauthorized access or use of which Customer becomes aware. Customer will be responsible for all use and misuse of the Subscription Service that occurs under any User’s login credentials, and for any breach of these Terms by any Users.

2.4 Administrators. Customer shall designate one or more Administrators. Administrators shall have access to view User Content submitted by users.

3. USER CONTENT; DATA SECURITY; PRIVACY POLICY

3.1 Responsibility for User Content. Customer is solely responsible for all User Content, including, without limitation, the accuracy, quality, integrity, reliability, appropriateness, and legality of User Content. Certain types of information within User Content may be subject to specific regulations (e.g., regulations regarding personally identifiable information, protected health information, etc.). Customer, not Humanly, is responsible for compliance with all such regulations. Without limiting the foregoing, Customer represents and warrants that, if applicable, Customer will provide any required notice to, and obtain any required consent from, individuals, including Users, related to the collection, use, or viewing of User Content.

3.2 Humanly’s Use of User Content. Unless it receives Customer’s prior written consent, Humanly: (a) will not access, process, or otherwise use individual Customer Content other than as necessary to facilitate the Subscription Service or anonymized in aggregate form; and (b) will not intentionally grant to any third party access to User Content, except to Subcontractors as set forth in Section 3.7. Notwithstanding the foregoing, Humanly may disclose User Content as required by applicable law or by proper legal or governmental authority. Humanly will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

3.3 Screening. Humanly may, but has no obligation to, screen for objectionable User Content, and may provide Customer with analytics or summaries of responses made by Users or other User Content. However, Customer bears the responsibility for determining the legal and human resource-related implications of any responses. For example, if a User raises the issue that he or she has a disability, Customer shall be responsible for taking any action required in response.

3.4 Data Security. Humanly maintains appropriate technical and organizational measures, internal controls, and data security routines intended to protect User Content against accidental loss or change, unauthorized disclosure or access, or unlawful destruction. Notwithstanding the foregoing, Customer acknowledges and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Subscription Service, Customer assumes such risks. Humanly offers no representation, warranty, or guarantee that User Content will not be exposed or disclosed through errors or the actions of third parties. Humanly will not be responsible for any distribution, publication, display, or other disclosure of User Content or by Users via the Subscription Service.

3.5 No Sensitive User Content. Customer acknowledges that the Subscription Service is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly-sensitive personal information, and that Customer assumes all risk arising from use of any such sensitive information with the Subscription Service, including the risk of any inadvertent disclosure or unauthorized access thereto.

3.6 Aggregate/Anonymous Data. “Aggregate/Anonymous Data” means: (i) data generated by aggregating User Content with other data so that the results do not identify User or Customer and are non-personally identifiable with respect to any Administrator, User or other individual, and (ii) anonymous data relating to use of the Subscription Service by Customer and other Humanly customers. Customer acknowledges and agrees that Humanly may generate Aggregate/Anonymous Data and may use Aggregate/Anonymous Data for business purposes during or after the Term (including, without limitation, for benchmarking purposes, to develop and improve Humanly’s services, and to create and distribute reports and other materials). Humanly will not publish or distribute Aggregate/Anonymous Data in a manner that identifies Customer or that personally identifies any Administrator, User or other individual, or that violates applicable laws.

3.7 Subcontractors. Humanly may engage other third-party service providers to provide limited services on our behalf (“Subcontractors”). Any such Subcontractors will be permitted to obtain User Content only as necessary to deliver the services Humanly has retained them to provide, and will be prohibited from using User Content for any other purpose. Humanly shall remain responsible for its Subcontractors’ compliance with the obligations set forth in these Terms.

3.8 Privacy; GDPR

3.8.1 With respect to User Content that constitutes personal data of third-party data subjects which is not subject to the European Union General Data Protection Regulation (“GDPR”), you acknowledge and agree that the terms set forth in this document shall govern Humanly’s collection, processing, use and sharing of such data, and the terms of the Privacy Policy are expressly incorporated into and made a part of these Terms.

3.8.2 With respect to User Content that constitutes personal data of third-party data subjects which is subject to the provisions of GDPR, each Party agrees to comply with the terms of the Data Processing Addendum attached as an exhibit to these Terms (if applicable).

3.9 Data Deletion. Subject to any requirements under applicable law, Humanly may permanently erase User Content if Customer’s account is delinquent, suspended, expired, or terminated for 30 days or more.

4 UPDATES TO SERVICES; SUPPORT

4.1 Updates. Humanly may, from time to time, update or make changes to the features or functions of the Subscription Service. Humanly will make reasonable efforts to provide Customer with advance notice before removing any material feature or functionality of the Subscription Service, unless security, legal, or system performance considerations require an expedited change, in which case Humanly will provide Customer with notice as soon as reasonably possible.

4.2 Error Correction. Humanly shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Humanly’s normal business hours. Customer shall provide such access, information, and support as Humanly may reasonably require in the process of resolving any error. This paragraph is Customer's sole and exclusive remedy for Errors. "Error" as used in this Section 4.2 means any reproducible material failure of the Subscription Service to function in accordance with the Documentation.

4.3 Support Exclusions. Humanly has no obligation to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (a) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the Subscription Service or its operating environment; (b) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third-party applications, or internet connectivity; (c) Customer’s use of the Subscription Service other than in accordance with applicable Documentation provided to Customer; or (d) a Force Majeure Event.

5 OWNERSHIP

5.1 Subscription Service Ownership. Customer acknowledges that access to and use of the Subscription Service is licensed and not sold. Humanly, or its licensors, shall retain sole and exclusive ownership and all rights, title and interest in, including Intellectual Property Rights embodied or associated with, the Subscription Service, the Application, and any modifications or derivative works thereto. Without limiting the foregoing, the Application, Subscription Service, Software, Documentation and all information and screens appearing on the Application (excluding the contents of User Content that is not aggregated and anonymized), including without limitation documents, site design, text, graphics, logos, images and icons, as well as the compilation and arrangement thereof, are the sole property of Humanly or its licensors, and are protected by copyright and trademark laws. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of Humanly and/or its licensors. Customer agrees that Humanly will have a perpetual right to use in any manner all suggestions, enhancement requests, feedback, and recommendations provided by Customer or Users relating to the Subscription Service (collectively, “Feedback”) without any obligation of compensation.

5.2 Customer Content Ownership. Humanly acknowledges and agrees that, as between Humanly and Customer, Customer owns all legal right, title, and interest in and to Customer Content, and Humanly will not acquire any rights in any Customer Content and may not use such Customer Content except for the purpose of providing services to Customer and as otherwise authorized herein.

6 FEES; TAXES; PAYMENT

6.1 Fees. Customer will pay the fees specified in the applicable Order, plus any applicable taxes. Except as expressly provided in these Terms, an Order, all fees are nonrefundable once paid. All amounts payable by Customer under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.

6.2 Changes to Order. If Customer wishes to purchase access to additional services for the Subscription Service (beyond what was indicated on the original Order), Customer must contact Humanly by email at hello@humanly.io or their Customer Success contact. Unless pricing for additional services is set forth in the Order, pricing for additional services must be agreed upon by the Parties in writing (email is sufficient).

6.3 Payment Terms. Customer agrees to promptly notify Humanly of any changes to its billing information. If Customer uses a credit card to make payments due under these Terms, Customer authorizes Humanly to automatically charge such credit card on a recurring basis during the Term for all applicable fees and taxes. If Customer is invoiced for fees and taxes, all amounts are payable in U.S. dollars net fifteen (15) days from the date of the invoice unless otherwise specified in the applicable Order. Humanly reserves the right to correct any billing errors or mistakes that Humanly identifies even if Humanly has already issued an invoice or received payment. Customer agrees to notify Humanly about any suspected billing errors within fifteen (15) days after the relevant invoice or charge date; failure to do so will result in waiver of Customer’s right to dispute such billing errors.

6.4 Past Due Amounts. Except as prohibited by law, Humanly may charge a late fee of one and one-half percent (1.5%) per month on past due amounts, or the maximum rate permitted by law, whichever is less, from the date such amounts were due until the date paid. Humanly agrees that it will not exercise its rights under this Section 6.4 if the past due amounts are under reasonable and good faith dispute, initiated by a written notification as set forth in Section 6.7, and Customer is cooperating diligently to resolve the dispute. Customer agrees to reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Humanly to collect any amount that is not paid when due.

6.5 Taxes. Customer shall pay or shall reimburse Humanly for all sales taxes, duties, and other taxes, however characterized by the taxing authority, based upon the subscription fees or other charges under these Terms or otherwise incurred on account of Customer’s use of the Subscription Service, except for any taxes based upon Humanly’s net income or gross receipts. If Customer is exempt from any applicable taxes, Customer will provide Humanly with a valid tax exemption certificate authorized by the appropriate taxing authority to evidence Customer's tax-exempt status. If Customer requires a purchase order or other similar documentation, such requirement will in no way affect or delay Customer’s obligation to pay any amounts due hereunder, and Humanly expressly rejects any additional or different terms or conditions set forth on any Customer purchase order or similar documentation.

6.6 Refunds. Except as expressly set forth in this Agreement, Humanly does not issue refunds for services not used in the event of cancellation or discontinued use of the Subscription Service. If Customer terminates these Terms and any applicable Order due to Humanly’s uncured breach pursuant to Section 7.2, Customer will be entitled to a prorated refund of any prepaid, unused fees for the Subscription Service.

6.7 Payment Disputes. Customer must notify Humanly in writing of any disputes regarding invoiced amounts within thirty (30) days after Customer’s receipt of the applicable invoice. Customer’s notice must include an explanation detailing the basis of Customer’s dispute of the invoiced amount. The Parties will seek to resolve any properly disputed invoice pursuant to Section 12.8 below. If only a portion of an invoice is disputed, Customer will pay the non-disputed portion as required hereunder. Humanly may suspend access to the Subscription Service if Customer improperly or unreasonably disputes or fails to pay amounts owed under an issued invoice when due. If the Parties are unable to come to an agreement with respect to disputed amounts, either Party may seek appropriate legal or equitable remedies, all of which are reserved.

7 TERM AND TERMINATION

Term; Order Term; Auto-Renewal of Subscription Service. These Terms will remain in effect throughout the Term unless earlier terminated as set forth herein. Each Order remains in effect for the initial subscription term ("Initial Term") specified therein and any subsequent renewal periods (each a “Renewal Term”, and collectively with the Initial Term, the “Term”). UNLESS SPECIFIED IN AN ORDER, AFTER THE INITIAL TERM OF THE ORDER ENDS, THE ORDER WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR RENEWAL TERMS UNLESS EITHER PARTY PROVIDES THE OTHER PARTY WRITTEN NOTICE OF NON-RENEWAL AT LEAST NINETY (90) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM.

7.2 Termination for Cause; Suspension. Either Party may terminate these Terms immediately if the other Party breaches any material provision of an applicable Order, or these Terms, and fails to cure that breach within thirty (30) days of written notice identifying the breach from the non-breaching Party. In addition, Humanly may suspend Customer’s access to the Subscription Service and/or Application immediately if: (a) Customer fails to make a payment when payment is due; or (b) Customer has (or Humanly reasonably believes that Customer has) breached Section 2.2 or misappropriated or infringed Humanly’s Intellectual Property Rights.

7.3 Effect of Termination. Upon expiration or termination of these Terms: (a) all Orders under these Terms will terminate; (b) all rights and obligations of the Parties hereunder will cease (except as set forth in this Section 7.3 and in Section 7.4 below); and (c) Customer will not be entitled to any refund of fees (except as set forth in Section 6.6 above). Notwithstanding the foregoing, upon Customer’s request, Humanly will provide Customer limited access to the Subscription Service for up to two (2) days following termination for the sole purpose of exporting information generally made available through Customer’s dashboard. Humanly will have no obligation to provide information or reports not generally made available through Customer’s dashboard, and the anonymity of Users will be maintained in all exported information.

7.4 Survival. The following sections will survive termination or expiration of these Terms: 1, 3.7, 5, 6.1, 6.2, 7.4, 8.4, 9, 10, 11, and 12.

8 REPRESENTATIONS AND WARRANTIES; DISCLAIMER

8.1 Humanly General Representation and Warranty. Humanly represents and warrants that: (a) it is a corporation authorized to do business pursuant to applicable law; and (b) it has the full right and authority to enter into, execute, and perform its obligations under these Terms; and (c) it will comply with all laws, treaties and regulations applicable to its provision of the Subscription Service.

8.2 Humanly Limited Warranty for Subscription Service. If Customer has paid fees under these Terms for the Subscription Service, Humanly represents and warrants that the Subscription Service will operate substantially as described in the Documentation. Customer must notify Humanly in writing of any alleged failure by Humanly to comply with this warranty within thirty (30) days of such failure. Upon receipt of such notice, Humanly will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the applicable Order and issue a prorated refund for the terminated portion of the Subscription Service. This Section 8.2 sets forth Customer’s exclusive rights and remedies and Humanly’s sole liability for breach of the limited warranty for Subscription Service specified herein.

8.3 Customer Representations and Warranties. Customer represents and warrants that: (a) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; (b) it has the full right and authority to enter into, execute, and perform its obligations under these Terms; (c) it has all rights, permissions, and consents necessary (i) to submit all Customer Content to the Subscription Service, (ii) to grant Humanly the limited rights to process Customer Content as set forth in these Terms, and (iii) for any transfer or disclosure of Customer Content among or by Users; and (d) it will comply with all laws and regulations applicable to its use of the Subscription Service.

8.4 WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE IN THIS SECTION 8, HUMANLY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICE, THE APPLICATION, OR ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HUMANLY DOES NOT REPRESENT OR WARRANT THAT (A) THE SUBSCRIPTION SERVICE OR APPLICATION WILL PERFORM WITHOUT INTERRUPTION, DOWNTIME, OR ERROR; (B) THE SUBSCRIPTION SERVICE OR APPLICATION ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER CONTENT WILL REMAIN PRIVATE OR SECURE.

9 INDEMNIFICATION

9.1 By Humanly. Humanly will defend, at its expense, Customer and its officers, directors, employees, and agents (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party alleging that the Subscription Service infringes or misappropriates any third-party Intellectual Property Rights (each an “Infringement Claim”). Humanly will indemnify and hold harmless Customer Indemnified Parties from and against any damages, reasonable attorneys’ fees, and costs resulting from an Infringement Claim and finally awarded against Customer or agreed to be paid by Customer in a written settlement approved by Humanly in writing. Notwithstanding the foregoing, Humanly will have no obligation under this Section 9.1 to the extent any alleged infringement or misappropriate arises from: (a) Customer’s use of the Subscription Service in combination with technology or services not provided by Humanly, if the infringement would not have occurred but for such combination; (b) Customer Content; (c) Humanly’s compliance with designs, specifications, or instructions provided by Customer if such infringement would not have occurred but for such designs, specifications, or instructions; or (d) use by Customer of the Subscription Service after written notice by Humanly to discontinue use. If Customer is enjoined or otherwise prohibited from using the Subscription Service or a portion thereof based on an Infringement Claim, then Humanly will, at Humanly's sole expense and option, either: (i) obtain for Customer the right to use the allegedly infringing portions of the Subscription Service; (ii) modify the allegedly infringing portion of the Subscription Service so as to render it non-infringing without substantially diminishing or impairing its functionality; or (iii) replace the allegedly infringing portions of the Subscription Service with non-infringing items of substantially similar functionality. If Humanly reasonably determines that the foregoing remedies are not commercially practicable, then Humanly may terminate the applicable Order and issue a prorated refund of fees prepaid by Customer for the terminated portion of the Term. This Section 9.1 sets forth Humanly’s sole liability and Customer’s sole and exclusive remedy for any actual or alleged infringement by Humanly of any third-party Intellectual Property Rights.

9.2 By Customer. Customer will defend, at its expense, Humanly and its officers, directors, employees, and agents (“Humanly Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party arising out of: (a) the Customer Content; or (b) Customer’s use of the Subscription Service or Application in violation of these Terms or applicable law. Customer will indemnify and hold harmless Humanly Indemnified Parties from and against any damages, reasonable attorney’s fees, and costs resulting from a claim that Customer is obligated to defend pursuant to this Section 9.2 and finally awarded against Humanly or agreed to be paid by Humanly in a written settlement approved by Customer in writing.

9.3 Conditions on Indemnification. The indemnifying Party’s obligations under this Section 9 are contingent on the indemnified Party: (a) promptly providing written notice of the claim to the indemnifying Party (provided that the failure of a Party entitled to indemnification hereunder to give notice as provided herein shall not relieve the indemnifying Party of its obligations under this Section 9 except to the extent that the indemnifying Party is actually prejudiced by such failure to give notice); (b) giving the indemnifying Party sole control of the defense and settlement of the claim (provided that any settlement unconditionally releases the indemnified Party of all liability and does not make any admissions on behalf of the indemnified Party or include payment of any amounts by the indemnified Party); and (c) providing the indemnifying Party, at the indemnifying Party’s expense, all reasonable assistance in connection with such claim. The indemnified Party may participate in the defense of the claim at its sole cost and expense.

10 LIMITATIONS OF LIABILITY

10.1 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

10.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SUBSCRIPTION SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 6, ABOVE.

10.3 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 DO NOT APPLY TO: (A) LIABILITY ARISING FROM EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNITY); (B) LIABILITY ARISING FROM A BREACH OF EITHER PARTY’S OBLIGATIONS UNDER SECTION 11 (CONFIDENTIALITY); (C) LIABILITY ARISING FROM THE INFRINGEMENT OR MISAPPROPRIATION OF HUMANLY’S INTELLECTUAL PROPERTY RIGHTS; OR (D) LIABILITY THAT MAY NOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

10.4 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES REPRESENTS AN AGREED UPON ALLOCATION OF THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THE FEES FOR THE SUBSCRIPTION SERVICE REFLECT THIS ALLOCATION OF RISK.

11 CONFIDENTIALITY

11.1 Definition. “Confidential Information” refers to the following items one Party to these Terms (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within ten (10) business days; and (c) any other non-public, sensitive information Recipient knows or should reasonably consider a trade secret or otherwise confidential or proprietary information of the other Party. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information of the other Party; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. All Confidential Information is provided “AS IS.” NEITHER PARTY MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.

11.2 Use and Disclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by these Terms (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and has executed a nondisclosure or other agreement with Recipient with terms no less restrictive than those of this Section 10; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.

11.3 Injunctive Relief. Recipient agrees that breach of this Section 11 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

11.4 Termination and Return. The obligations of Section 11.2, above, will terminate three (3) years after the effective date of termination or expiration of these Terms; provided such obligations related to Confidential Information constituting Discloser’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon expiration or termination of these Terms, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

11.5 Retention of Rights. Each Party retains all rights, title, and interest in and to its Confidential Information. The disclosure of Confidential Information to Recipient does not grant or convey any right of ownership of such Confidential Information.

12 GENERAL

12.1 Force Majeure Event. Neither Party shall be liable to the other Party for failure or delay in performing its obligations under these Terms when such failure or delay is due to a Force Majeure Event, provided that the Nonperforming Party shall give prompt written notice thereof to the Performing Party and shall use commercially reasonable efforts to resume performance as quickly as possible.

12.2 Assignment. Except as expressly set forth herein, neither Party will assign, transfer or delegate its rights or obligations under these Terms (in whole or in part) without the other Party’s prior written consent. A Party may assign these Terms in whole to an affiliate or pursuant to a transfer of all or substantially all of such Party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.

12.3 Third Parties. Humanly may provide references, frames or hyperlinks to internet web sites maintained by third parties. Humanly does not warrant that it has reviewed such third-party websites and makes no claims, representations or warranties regarding such third-party websites or the contents of the same. Humanly is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third-party websites or by any other means.

12.4 U.S. Government Restricted Rights; Export. Any software provided hereunder is a “commercial item,” as defined at 48 C.F.R. § 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212 (SEPT 1995). Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4 (JUNE 1995), such software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other end users pursuant to the terms and conditions herein. If Customer exports any of the software, it must comply fully with all relevant export laws and regulations to ensure that the software is not exported, directly or indirectly, in violation of applicable export control laws. Customer shall not knowingly, directly or indirectly, without prior written consent, if required, of the Office of Export Administration of the U.S. Department of Commerce, export or transmit any of the software to any country to which such transmission is restricted by applicable regulations or statutes.

12.5 Notices. Any notice required or permitted by these Terms shall be delivered by hand, by overnight courier, or by registered mail, to the address of the Parties set forth in their signature block or to such other address designated by a Party in writing in accordance with this subsection. Notices are deemed to have been given at the time of actual delivery, three (3) business days after deposit in the mail, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery is in fact accomplished.

12.6 Relationship; Third Party Beneficiaries. These Terms do not create any partnership, franchise, joint venture, agency, or fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.

12.7 Invalidity; Non-Waiver. If any term of these Terms is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired. Any express waiver or failure to exercise promptly any right under these Terms will not create a continuing waiver or any expectation of non-enforcement.

12.8 Governing Law; Dispute Resolution. These Terms shall be governed by and construed under the laws of the State of Washington without regard to its conflicts of laws. Any controversy, dispute or claim arising out of or in connection with these Terms (“Dispute”) is subject to the following dispute resolution process. If either Party submits written notice of a Dispute to the other Party, a designated representative for each Party will discuss such Dispute in good faith. If the designated representatives cannot agree on a solution to the Dispute, an officer or director of each Party with decision-making authority will discuss the issue in good faith. If, within thirty (30) days after notice is received, the Dispute remains unresolved, either Party may institute legal action as permitted hereunder. The Parties agree to unconditionally and irrevocably submit to the exclusive jurisdiction of the state and federal courts located in King County, Washington for the resolution of any Dispute that is not informally resolved by the Parties through the foregoing Dispute resolution process. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such Dispute brought in such court or any defense of inconvenient forum for the maintenance of such Dispute. The foregoing exclusive jurisdiction, choice of forum and Dispute resolution provisions shall not apply to Disputes for which injunctive relief is sought.

12.9 Conflict. In the event of a conflict between the terms and conditions of these Terms and those of a Order, the terms and conditions of these Terms will control, unless specifically stated otherwise in the Order.

12.10 Changes to These Terms. We may make changes to these Terms from time to time. If we do make changes, we will post the amended Terms on the Site and update the "Last Updated" date above. If we make a material change to these Terms, we will make reasonable efforts to notify you in advance by posting a notice on the Site, or via Customer’s dashboard, or via email to Administrator email addresses on file with us. Unless we indicate otherwise, the amended Terms will be effective once posted and your continued access to and use of the Subscription Service after such time will confirm your acceptance of the Terms as modified. If you do not agree to the modified Terms, you must stop using our Services.

12.11 Entire Agreement. These Terms, including any Order, constitute the entire agreement between Humanly and Customer regarding Customer’s use of the Subscription Service and the Application and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The Parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation is void and of no force or effect. In the event of any conflict or inconsistency between the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) these Terms.