Employee Confidential Terms of Service
Welcome to EmployeeConfidential.com, the website, the platform and the online service of Employee Confidential, LLC. (“Employee Confidential”, “EC,” “we,” “party” or “us”). We are the developers and the owners a proprietary cloud-based incident reporting and case management product that provides a confidential and anonymous system to report incidents, unethical or illegal behavior in the workplace, as well as a platform to manage such reports on a software-as-a-service basis. This document sets the terms on which you may use our online services, web site, and the software provided on or in connection with our reporting and case-management platform (collectively the “Service”).
EC reserves the right to make unilateral modifications to these terms, add new or improve existing features in a way that in our sole discretion, either augment or enhance the current Service or make it compliant with the law, including the release of new tools and functions (“Changes”). Wherever possible, EC shall give notice regarding the Changes. All Changes shall be subject and become an integral part to this Agreement. This Agreement applies to all visitors, customers, users, as well as their respective employees, partners, principals, agents and representatives and others who access the Service, whether on behalf of a company or on their own individual behalf (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
USE OF OUR SERVICE
T his is a contract between you (or “User”) and Employee Confidential. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Employee Confidential, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations.
Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not designed for use by or in connection with anyone under the age of 18, and you accept all responsibility that may arise from your use of the Service in connection with any minors.
B. Employee Confidential Service
S ubject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, revocable license to use the Service solely as permitted by the features of the Service, which may vary by User. We reserve all rights not expressly granted herein in the Service and the EC’s content and functionalities.
C. Employee Confidential Accounts
Y our Employee Confidential account gives you access to the services and functionality that we may establish, maintain and modify from time to time and at our sole discretion. We may maintain different types of accounts for different types of Users. When you open an Employee Confidential account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity’s employees, principals, agents and representatives, and (b) you represent and warrant that you are an authorized representative of said entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Employee Confidential with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You acknowledge and agree that if you are opening an Employee Confidential account or otherwise using the Service as an employer, HR manager and/or a corporate officer on behalf of a company, organization or other entity, your employees must and do separately agree to be bound by this Agreement and it is your responsibility to secure such an agreement.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your account. You must notify Employee Confidential immediately of any breach of security or unauthorized use of your account. Employee Confidential will not be liable for any losses caused by any unauthorized use of your account.
D. Service Rules and Restrictions
You agree not to engage or to attempt engaging in any of the following prohibited activities: (i) copying, distributing, or disclosing any part or functionality of the Service (other than those which are publicly accessible or known), in any medium, including without limitation by any automated or non-automated “scraping”; (ii) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (iii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iv) knowingly report false information, uploading invalid or corrupt data, viruses, worms, or other software agents or any code of a destructive nature through the Service; (v) collecting or harvesting any personally identifiable information, including account names, from the Service; (vi) using the Service for any commercial solicitation purposes, unless expressly authorized by EC; (vii) conducting fraud, impersonating another person or otherwise misrepresenting your affiliation with a person or entity; (viii) interfering with the proper working of the Service; (ix) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (x) subjecting to verbal, physical or other abuse (including threats of abuse or retribution) any other User or any EC customer, employee, member, or officer; (xi) reproducing, duplicating, copying, reverse-engineering, disassembling, decompiling, or otherwise attempting to discover the source code for the Service (xii) selling, reselling or otherwise exploiting any portion of the Service, use of the Service, or access to the Service without the express written permission by EC; or (xiii) modifying, adapting or hacking the Service or modifying another website so as to falsely imply that it is associated with the Service, Employee Confidential, or any other Employee Confidential service.
BY USING THE SERVICE YOU REPRESENT AND WARRANT UNDER PENALTY OF PERJURY THAT (I) YOU DO NOT WORK FOR A COMPETITOR OF THE EMPLOYEE CONFIDENTIAL; AND (II) THAT YOU WILL NOT PROVIDE ANY INFORMATION GAINED FROM YOUR USE OF OR ACCESS TO THE SITE OR THE SERVICES TO A COMPETITOR OF THE EMPLOYEE CONFIDENTIAL.
E. Third Parties
You may be redirected to Employee Confidential via other websites ("Third Party Websites") or third party service providers ("Partners") who operate websites or other systems in conjunction with our Service ("Partner Systems"), which contain articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and/or other content or items belonging to or originating from third parties (the "Third Party Content"). We do not investigate, monitor or check Third Party Websites, Partner Systems or Third-Party Content for accuracy, appropriateness, completeness, offensiveness, opinions, reliability, privacy practices or other policies. As such, you agree that Employee Confidential shall not be responsible for any Third-Party Websites, Partner Systems or Third-Party Content. Inclusion of, linking to or permitting the use or installation of any Third-Party Website, Partner System or any Third-Party Content does not imply approval or endorsement thereof by Employee Confidential. You should review the applicable terms and policies, including privacy and data gathering practices, of any website or system to which you navigate from the Service or which you use.
You are solely responsible for the use of the Service by you, or in case you represent an entity, company or organization, by the use of such entity’s employees, partners, principals, agents and representatives, and for your interactions with other Users. We shall have no liability for your use of the Service or for your interactions with other Users, or for any User’s action or inaction.
II. INTELLECTUAL PROPERTY
A. Employee Confidential Service
The Service is licensed, not sold. EC and its suppliers exclusively own and retain all rights, title, and interest in and to the Service (including software, user interface designs, and documentation) and all additions and modifications to the Service, including all intellectual property rights therein.
B. User Data
"User Data" means all data (including Personal Data as defined below), information, reports, policies, and other content imported to the Service or otherwise provided to Employee Confidential or its contractors by or for User in connection with User's use of the Service, and all data and information received by or for User from User's use of the Service. User exclusively owns and retains all rights, title and interest in and to the User Data, except for pre-existing Service’s components contained in such User Data (e.g., incident report templates). User hereby grants to Employee Confidential and its authorized representatives and contractors a non-exclusive and non-transferable right and license to use, process, store, and transmit, and disclose User Data solely to provide the Service to User and fulfill other obligations described in this Agreement. User further authorizes Employee Confidential to anonymize User Data and to aggregate User Data with similar data from other Employee Confidential customers in a manner that does not identify User or include any Personal Data, to further develop and provide services for Employee Confidential customers.
C. Use of material on the Employee Confidential web site
The information, artwork, text, video, audio, or pictures (collectively, "Materials") contained on the Employee Confidential website are protected by copyright laws. You may only access and use the Materials for personal or educational purposes. You may not modify or use the Materials for any other purpose without Employee Confidential’s express written consent. Except as provided below, you may not reproduce, republish, post, transmit or distribute any Materials. When Materials are used for personal or educational purposes, they must include any copyright notice originally included with the Materials in all copies.
III. DATA PROTECTION
A. Personal Data
In the course of performing the Service, Employee Confidential may receive and store information that can be used to uniquely identify, contact or locate a natural person, including but not limited to name, address, email address, or phone number ("Personal Data"). Employee Confidential will safeguard the confidentiality of Personal Data in accordance and will not access or use such Personal Data other than as necessary to perform the Service. Employee Confidential receives and stores Personal Data solely as an agent acting on behalf of User.
B. EU Law
If the parties agree that the Service will involve the processing by Employee Confidential of Personal Data from the European Union, then Employee Confidential will perform all such processing in compliance with the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) and the Data Processing Addendum.
IV. FEES, TAXES AND BILLING POICIES
The fees for the Service will be set forth in each web order form ("Fees") and Users will pay all such Fees in accordance with the terms of this Agreement and the applicable web order form. Unless otherwise set forth in the applicable web order form, all Fees due hereunder will be paid annually in advance in U.S. dollars, and will be due at the time of order.
Employee Confidential's fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, "Taxes"). User is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes on Employee Confidential's net income. If Employee Confidential has the legal obligation to pay or collect Taxes for which User is responsible under this Agreement, Employee Confidential will invoice User and User will pay that amount unless User provides Employee Confidential a valid tax exemption certificate from the appropriate taxing authority.
This Agreement will commence on the effective date of the web order and will remain in effect so long as any order form remains in effect, or, if no such term is specified in an applicable order form, for a period of one (1) year (collectively, the "Term").
Each party acknowledges that the Confidential Information (as hereinafter defined) of the other party may contain information valuable to the Disclosing Party, and each party that receives such Confidential Information (the "Receiving Party") from the other party (the "Disclosing Party") agrees that Confidential Information will remain the property of the Disclosing Party. Receiving Party will not make use of Disclosing Party's Confidential Information, except as authorized by this Agreement and to the extent necessary for performance or enforcement of this Agreement; and Receiving Party will keep Disclosing Party's Confidential Information confidential and not disclose to any third party, except to such Receiving Party's employees and contractors who need to know such information in order for such party to perform this Agreement and only to the extent they are bound by confidentiality and non-use obligations not less restrictive than this Agreement. If User provides any feedback, comments, or ideas to Employee Confidential regarding the Service or improvements thereto, User agrees that Employee Confidential will be free to use, disclose, and exercise any rights in the same in connection with its products and services. "Confidential Information" means all information that is, or should be reasonably understood to be, confidential or proprietary information of the Disclosing Party (and its suppliers, contractors and customers), including without limitation information concerning its business, products, services, finances, employees, contractors, software, notes, documentation, tools, processes, protocols, product designs and plans, customer lists and other marketing and technical information; and the terms of this Agreement, whether disclosed orally or in writing by any other media. Confidential Information includes all software and related user documentation included in the Service, User Data, and excludes information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (b) is independently developed by a party without reference to the Confidential Information of the other party; (c) was in the Receiving Party's possession free of any obligation of confidence at the time it was communicated to the Receiving Party; or (d) is rightfully obtained by a party from a third party without restriction on use or disclosure. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section with regard to disclosure of Confidential Information in response to an order or subpoena of a court, agency or tribunal of competent jurisdiction, or pursuant to any applicable law or regulation, provided that the Receiving Party provides the Disclosing Party with prior written notice of such disclosure to the extent reasonably practicable and legally permissible in order to permit the Disclosing Party to seek confidential treatment of such information.
VII. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that (a) it has and will have full right and authority to enter into this Agreement and to grant the rights provided hereunder, (b) this Agreement will be enforceable against it, and (c) the entry into and the performance of this Agreement by any party do not contravene other agreements, laws, or orders to which it is subject. User represents and warrants that User will not make or publish any representations, warranties, or guarantees to any users of the Service.
B. Compliance with Laws
You represent and warrant that all communications you cause to be sent through the Service shall at all times comply with all applicable state and federal laws and regulations and understand that EC does not have either the technical or the legal capacity to monitor the specific content of such communications and take position on the above compliance.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EMPLOYEE CONFIDENTIAL OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, EMPLOYEE CONFIDENTIAL, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED;
VIII. INDEMNIFICATION .
A. By Employee Confidential
Employee Confidential will indemnify, defend, and hold harmless User from and against any third-party suit and the damages finally awarded therein ("Claim") which alleges that the Service infringe, misappropriate or violate the intellectual property right of any third party.
B. By the User
You will indemnify, defend, and hold harmless Employee Confidential from and against any and all Claims which allege that any User Data infringes, misappropriates or violates the intellectual property right of any third party or relate to or are based on incident reports submitted to Customer via the Service.
C. Indemnification Procedure
Each party's indemnification obligation above is subject in each instance to the indemnified party (i) promptly giving notice of the Claim to the indemnifying party; (ii) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party will have the right to approve any material liability imposed on and borne by the indemnified party in connection with such settlement); and (iii) providing to the indemnifying party all available information and reasonable assistance.
Notwithstanding the foregoing, Employee Confidential will not have any indemnification obligations pursuant to this Agreement to the extent any Claim arises from (i) use of the Service outside the scope of the rights granted to User in this Agreement; (ii) use of the Service with other products, software or materials not furnished by Employee Confidential where the Service would not themselves be infringing; or (iii) the modification or improvement of the Service by User or any third party; or (iv) any continued use by User of an allegedly infringing item or continued allegedly infringing activity by User after Employee Confidential has replaced or modified the item or instructed User to modify the activity so that it becomes non-infringing.
IX. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EMPLOYEE CONFIDENTIAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF (OR INABILITY TO USE) OR RELIANCE ON ANY REPORT, DATA OR OTHER INFORMATION, OR FROM THE USE OF THE SERVICE GENERALLY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMPLOYEE CONFIDENTIAL ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY ERRORS OR OMISSIONS IN ANY REPORTING OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF ANY REPORT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VI) USER’S CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL EMPLOYEE CONFIDENTIAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO EMPLOYEE CONFIDENTIAL HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EMPLOYEE CONFIDENTIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
For purposes of this section, Employee Confidential shall include successors, parent companies, and their employees, partners, principals, agents and representatives, and any third-party providers or sources of information or data.
X. GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER
A. Governing Law
You agree that: (i) the Service shall be deemed solely based in New York (USA); and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EMPLOYEE CONFIDENTIAL. For any dispute with Employee Confidential, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Employee Confidential has not been able to resolve a dispute it has with you within ninety (90) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS New York Resolution Center, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York, New York, unless you and Employee Confidential agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses.
NOTHING IN THIS SECTION SHALL BE DEEMED AS PREVENTING EMPLOYEE CONFIDENTIAL FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
C. Class Action/Jury Trial Waiver
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EMPLOYEE CONFIDENTIAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of the assets or equity of such party through purchase, merger or other transaction without the other party's consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement.
XII. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in a writing duly executed by authorized representatives of both parties. Any standard terms associated with a purchase order or other order document (e.g., general terms and conditions attached to the purchase order form) will be not binding on the parties and of no consequence whatsoever in interpreting the parties' legal rights and responsibilities as they pertain to Service provided under this Agreement. Similarly, any terms required to be accepted electronically through any User vendor enrollment, login, invoice submission, or other, process will not apply to this Agreement, are expressly rejected by the parties, and form no basis for any agreement between the parties; notwithstanding any indication of "agreement" to such terms, no such agreement is formed between the parties and the parties acknowledge that only authorized representatives of the parties may enter into agreements between the parties or amendments to this Agreement.
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