Terms of Service Agreement

Last Updated: January 31, 2021

Thank you for using the website and services offered by Human Capital Limited d/b/a Onboardly (together with its subsidiaries and other affiliates, Onboardly, “we”, “us”, “our”), which provide certain human resource and information technology services and related services, and devices (such website, services, and any related software, mobile applications and other applications, collectively, the Onboardly Services”). The specific Onboardly Services you order will be set forth in ordering documents (including any online form) issued by Onboardly specifying the Onboardly Services to be provided hereunder (“Order Forms”). To be eligible to register for an Onboardly account and use any Onboardly Services, you must review and accept the terms of this Agreement by executing the applicable Order Form provided by us and/or checking on the “I Agree” button or other mechanism provided.

Your account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, and that you consent to do business electronically.

This Agreement applies to all users of the Onboardly Services, including, as applicable, individual employees or contractors at a company (collectively, “Users”). If you are using the Onboardly Services as a User, references to “you” are to you. If you are registering for a Onboardly account or using the Onboardly Services on behalf of an entity or other organization, references to “you” are to such entity or organization and you are agreeing to this Agreement for that entity or organization and representing to Onboardly that you have the authority to bind that entity or organization to this Agreement (and the term “Customer” will refer to that entity or organization).

Onboardly Services

Core Services. Onboardly may make certain Core Services available through its platform, including (i) employee onboarding and offboarding services, (ii) sample documents and policies (“Templates”), (iii) a platform that third parties may use to develop and provide applications and software that complement your use of the Onboardly Services (each, a “Third Party Product”), and (iii) other workplace features, as may be developed by Onboardly from time to time, such as an employee directory. You acknowledge that Templates and other provided materials constitute “Onboardly Content” and are incorporated into the Onboardly Services. Onboardly may expressly permit you to modify or edit certain Templates, which, once modified, become “Modified Content”. Onboardly grants Customer a limited, revocable, non-sublicensable license to use, reproduce, copy, and distribute Onboardly Content contained within the Modified Content, solely for Customer’s internal business purposes, subject to Customer’s compliance with the terms of this Agreement, including payment terms herein.

No Professional Advice. You acknowledge that Onboardly is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, or other professional advice. Any information provided by the Onboardly Services is intended for your general use only, including with respect to any Templates available within the platform, and does not constitute legal advice. You understand that you are responsible for any actions taken based upon information received from Onboardly, and where professional advice is needed, that you should seek independent professional advice from a person who is licensed or qualified in the applicable area.

Customer Responsibilities

(a) Electronic Signature. When you execute documents using the e-signature tools set forth in the Onboardly platform (“E-Sign Service”), you consent to electronically sign such documents, including employment-related documents, and agree that your electronic signature ("Electronic Signature") is the legal equivalent of your manual or handwritten signature. By selecting an “I Accept” button or otherwise placing an Electronic Signature on a document while in your Onboardly Account, you expressly affirm that: (i) you are able to access and view the relevant document that you are electronically signing, (ii) you consent to conduct business electronically with respect to the transaction contemplated by the document, (iii) you agree to the use of an Electronic Signature for the document, and (iv) you are authorized to enter into the relevant agreement, and be bound by its terms. You further agree that no certification authority or other third party verification is necessary to validate your Electronic Signature, and that the lack of such certification or third party verification will not in any way affect the enforceability of your Electronic Signature or any resulting agreement.

(b) Electronic Delivery. You agree that Onboardly may electronically deliver Service-related documents and/or disclosures to you (including for any persons whom you are the legal guardian), which may include tax and health insurance notices, as applicable. You also authorize Onboardly to receive such Service-related documents and/or disclosure electronically on your behalf, and agree to be notified of such notices electronically. Onboardly may provide electronic delivery via email to the email address provided by you in the Onboardly platform or by reference to a location on the Onboardly platform to which you have access. If you are using the Onboardly Services on behalf of a Customer and/or its employees and contractors, you represent that you have affirmative consent from your employees and/or contractors of such company to receive electronic disclosures from Onboardly through the Onboardly Services.

(d) Enforceability. You acknowledge that, under applicable laws, some documents require a manual or handwritten signature, and that it is your responsibility to determine whether a document requires a manual or handwritten signature. You understand that you are solely responsible with respect to the content, validity, or enforceability of any document, and that Onboardly makes no representations or warranties regarding the validity or enforceability of your documents signed using the E-Sign Service.

Accuracy of Customer Information. All Onboardly Services will be based upon information provided to Onboardly by you or third party services from which you may elect to import your information (including proof of federal, state and local tax identification numbers, bank verification information, benefit information and insurance information, leave policies and other employment practices) (“User Representations”). You must review all User Representations and ensure such information is accurate, complete, and timely. You acknowledge that Onboardly is entitled to rely conclusively on all User Representation, does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the User Representations. You further acknowledge that Onboardly bears no responsibility for and shall not have any liability for errors, omissions, penalties, fines, missed payments, judgments, incorrect coverage, or any other losses incurred that result from inaccurate, incomplete, or untimely User Representations.

User Data. With respect to any information which you provide through the Onboardly Services and that Onboardly hosts (collectively, the “User Data”), including Account Information and Materials (each as defined herein), you represent and warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the User Data in connection with your use of the Onboardly Services. Without limiting the foregoing, in the event that you request that Onboardly provide any User Data (including employee and contractor information) to any third party, you represent that you have acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable laws. By providing any User Data to Onboardly, you hereby grant and will grant Onboardly and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Data to perform the Onboardly Services, including as set forth in this Agreement, Onboardly’s Privacy Policy. You acknowledge and agree that Onboardly may preserve User Data and may also disclose User Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Onboardly, its users and the public. You understand that the technical processing and transmission of the Onboardly Services, including User Data, may involve (v) transmissions over various networks; and (vi) changes to conform and adapt to technical requirements of connecting networks or devices.

Accounts. To use the Onboardly Services, you must create an account (an “Account”) by providing your email address (“Account Email”) and a master password (the “Master Password” and, together with the Account Email, the “Credentials”). You are responsible for the security of your Account, and agree to keep your Credentials secure. You understand that your Account is solely for your use, and you will not share your Account or Credentials with anyone. You are fully responsible for all activities on the Onboardly Services associated with your Account. As a Customer, you are fully responsible for all activities of your employees and contractors on the Onboardly Services associates with their User Accounts.

Account Administration. Customer will designate and authorize either itself and/or one or more individuals with authority to (i) act on Customer’s behalf, (ii) provide information on Customer’s behalf, and (iii) bind Customer and/or Customer’s business with respect to the Onboardly Services (each such individual, an “Account Administrator”). Customer is solely responsible for all actions taken under any account to which Customer has access. Any actions taken under such accounts will be deemed authorized by Customer, regardless of Customer’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (iv) actions taken by Customer, an Account Administrator, or an authorized representative of Customer (an “Authorized Representative”), and (v) actions that Customer, an Account Administrator, or an Authorized Representative (or anyone that Onboardly reasonably believes to be Customer, an Account Administrator, or an Authorized Representative) directs or instructs Onboardly to take on its behalf.

(d) Account Security. Customer is solely responsible for (i) following instructions that Onboardly provides to Customer with respect to the Onboardly Services, and (ii) maintaining applicable accounts with providers of Third Party Products (as defined below) utilized by Customer. Customer will adequately secure and keep confidential any Customer passwords or credentials, and any information accessible via its account. If Customer believes or suspects that its account, passwords or credentials have been accessed by or compromised, Customer must immediately notify Onboardly. Onboardly reserves the right to prevent access to the Onboardly Services if Onboardly has reason to believe that any such accounts, passwords or credentials have been compromised.

Third Party Products.

Independent Services. The Onboardly Services are designed to work with many third-party websites, services and applications (“Third Party Products”); however, Third Party Products are not Onboardly Services. Onboardly does not provide any representations, warranties, indemnities, or support with respect to such Third Party Products, unless expressly provided herein or an applicable Order From. You (and not Onboardly) decide whether to enable Third Party Products, and any use of such Third Party Products and any exchange of data, including User Data (as defined herein), between Customer or a User and any such third party provider or Third Party Product, is solely between Customer or User and such third party provider. When you enable a Third Party Product, you grant Onboardly permission to allow the Third Party Product and its provider access to User Data as required for the interoperation of that Third Party Product with the Onboardly Services. For the interoperation of the selected Third Party Products with the Onboardly Services, you may be required to obtain access to such Third Party Products directly from their providers, and/or grant Onboardly the ability to create, access, delete and/or otherwise modify your account(s) on such Third Party Products. You acknowledge that Onboardly is not responsible for any use, disclosure, modification or deletion of User Data that is transmitted to, or accessed by, a Third Party Product, and that the handling of such User Data within the Third Party Product will be exclusively governed by the separate terms applicable between you and such third party provider. Customer and Users will comply with all terms and conditions applicable to the use of Third Party Products, and will not use the Onboardly’s integrations with Third Party Products in any manner that damages, disables, overburdens, or impairs any websites, servers, or otherwise interferes with the Third Party Products. Customer acknowledges it has sole responsibility for, and assumes all risks arising from, Customer’s use of any Third Party Products. Onboardly cannot guarantee the continued availability of such Onboardly Services features, and may cease providing certain Third Party Products via the Onboardly platform without notice or entitling you to any refund, credit, or other compensation.

Authorizations for Third Party Products. To connect the Onboardly Services with Third Party Products, you authorize Onboardly to, as applicable: (i) store relevant Account Information, (ii) access the relevant service using the Account Information you provide Onboardly, (iii) use and apply any signatures or other materials you provide Onboardly in order to provide related services, such as to complete a tax document, (iv) gather and export from such Third Party Product any data or other information reasonably necessary to provide related Onboardly Services to you, such as Customer’s payroll information, bank account information, Customer’s employees’ bank account information, and any additional information, such as the personal information of Customer’s employees, requested by such Third Party Product that Customer has provided or made available to Onboardly in connection with the Onboardly Services, and (v) otherwise take any action in connection with such Third Party Product as reasonably necessary to provide related services to you, including, but not limited to, opening accounts and making changes on your behalf with such third-party institutions. You further designate Onboardly as your agent and limited attorney-in-fact in connection with Third Party Products, if required and only as required to use the Third Party Product (e.g. tax filing systems). You agree that such third party providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you in their provision of the Third Party Product via the Onboardly Services.

Management of Third Party Accounts. You are solely responsible for (i) ensuring that any Third Party Product accounts are accurately and properly provisioned for or matched to your Onboardly Service account, (ii) ensuring the termination or de-linking any Third Party Product accounts for employees or contractors who should not have access to such Third Party Product accounts or your Onboardly account (e.g., due to termination of their employment or engagement), and (iii) otherwise following all instructions provided by Onboardly in connection with matching, de-linking, termination or other management of your Onboardly accounts in relation to Third Party Products.

Prohibited Activities. You will not (nor will you permit any third party to):

Termination. Onboardly may permanently terminate your access to the Onboardly Services and this Agreement without liability to you on thirty (30) days’ prior notice for any actual or suspected violation of any provision of this Agreement. You may deactivate your Onboardly Services account at any time by using the tools provided in the Onboardly Service. Upon any termination, the parties will continue to be bound by any terms of this Agreement that by their nature extend beyond termination.

Suspension. Without limiting our other rights or remedies, Onboardly may temporarily suspend your access to any portion of the Onboardly Services, including access to any leased equipment, without prior notice if (a) Onboardly reasonably determines that (i) there is a threat or attack on the Onboardly Services or other event that may create a risk to the Onboardly Services, you or any other customer of Onboardly; (ii) your use of the Onboardly Services disrupts or poses a security risk to the Onboardly Services or any other Onboardly customer; or (iii) you are in breach of Section 2.6 (Prohibited Activities) or Section 2.7 (Compliance with Laws; DMCA) or (b) Onboardly has notified you that any amount owed by you under this Agreement is thirty (30) or more days overdue, and you have failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Service Suspensions”). We will provide notice of any Service Suspension following the commencement of the Service Suspension and provide updates regarding resumption of Onboardly Services following any Service Suspension. Onboardly will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.

Proprietary Rights and Confidentiality.

Onboardly’s Ownership Rights. As between the parties, all right, title, and interest in and to the Onboardly Services, including Onboardly Content, shall remain vested in Onboardly. Except for the express rights granted hereunder, Onboardly also reserves all rights, title and interests in and to the Onboardly Services and Onboardly’s Confidential Information.

User Data. All right, title, and interest in and to the User Data, including the Account Information and Materials, you provide will remain vested in you. Upon termination, Onboardly will reasonably cooperate with Customer to facilitate a final export of such User Data from Onboardly’s systems and thereafter delete any and all remaining User Data from the same, unless otherwise prohibited by law.

Disclaimer

THE Onboardly SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. Onboardly HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE Onboardly SERVICES. WITHOUT LIMITING THE FOREGOING, Onboardly DOES NOT WARRANT THAT THE Onboardly SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Onboardly OR THROUGH THE Onboardly SERVICES WILL CREATE ANY WARRANTY. Onboardly DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.

Indemnification

Indemnification by You. You agree to indemnify, defend and hold harmless Onboardly against any claim, demand, suit, or proceeding (“Claim”) arising out of (a) your unauthorized use of or access to the Onboardly Services, (b) your violation of any term of this Agreement, (c) your violation of any third-party rights, including any right of privacy, any right provided by any labor or employment law, rule, or regulation or any intellectual property right, (d) your violation of any applicable law, rule or regulation, (e) the User Data and any Use Representations and (f) any agreement entered into, or any dispute, between you and, if you are a User, your employer, or, if you are a Customer, your employee or contractor, or (vii) any other party’s access to and use of the Onboardly Services (or access and use of any Third Party Product via the Onboardly Services) with your unique username, password or other appropriate security code (or, with respect to Third Party Products, your Account Information). In order to receive the benefit of the foregoing indemnity, Onboardly must give you prompt written notice of the Claim and all reasonable cooperation, at your expense, in your defense and settlement of the Claim.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Onboardly WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. Onboardly HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE Onboardly SERVICES PROVIDED FOR IN THIS AGREEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Onboardly, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING YOUR USE OF, OR INABILITY TO USE, THE Onboardly SERVICES, (B) ERRORS, MISTAKES OR INACCURACIES OF THE Onboardly SERVICES, (C) PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE Onboardly SERVICES, (D) THE CONTENT OF YOUR USER DATA, (E) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE Onboardly SERVICES, (F) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR Onboardly SERVICES BY ANY THIRD PARTY, (G) ANY ERRORS OR OMISSIONS IN THE Onboardly SERVICES OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE Onboardly SERVICES, AND/OR (H) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. Onboardly, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT YOU PAID TO Onboardly HEREUNDER IN THE EIGHTEEN (18) MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF Onboardly HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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