TempWorks® End-User License Agreement
| IMPORTANT: BY USING THE TEMPWORKS APP (AS DEFINED BELOW) YOU AGREE THAT YOU ARE ENTERING INTO THIS END-USER LICENSE AGREEMENT (HEREINAFTER, THE “EULA”) WITH TEMPWORKS, AND AGREE TO BE BOUND BY ITS TERMS. |
- General. The term “App” shall refer to and consist of the TempWorks® mobile application, which includes, without limitation, any source code, interfaces, text, graphics, and other components, and any updates, modifications or enhancements which presently exist or may exist at any time in the future. The App is licensed—not sold—to you by TempWorks Software, Inc. (“TempWorks”), and must be used strictly in accordance with this EULA. Your use of the App is also subject to usage rules established by Apple Inc. and Google with respect to the iTunes and Google Play app stores, respectively, as may be modified or amended from time to time (the “Usage Rules”).
- Grant of License. TempWorks grants you a fully revocable, non-exclusive, non-transferable, limited license to install and use the App on any mobile device (collectively or in reference to any such device(s), the “Mobile Device”), and to access and use the App on such Mobile Device strictly in accordance with this EULA and the Usage Rules (collectively, the “Restricted Agreements”).
- TempWorks’ Services. To log into the App, you must have a registered account with TempWorks. You are solely responsible for all usage of the App under your account, and agree to take all reasonable precautions to prevent unauthorized access to, or use of, the App. TempWorks will not be responsible for any liability, loss or damage relating to or arising out of the unauthorized use of your account. You acknowledge and agree that (i) use of the App is provided as a convenience to you, (ii) TempWorks is not required—whether contractually or otherwise—to provide the App to you, and (iii) TempWorks’ disabling of your use of, or your access to, the App shall not constitute a breach of this EULA or any software or services agreement between (y) you and TempWorks, or (z) TempWorks and the temporary employment staffing agency for which you are providing or receiving services.
- Intellectual Property. You agree that the App and all intellectual property rights associated therein and therewith (including, without limitation, all copyrights, patents, trademarks, and service marks) are and shall remain exclusively owned by, and exclusively vested in, TempWorks. You are not granted any intellectual property rights in or to the App, whether through this EULA or otherwise. You may not sublicense or otherwise transfer the App, this EULA, or any part thereof, or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be void. You are not authorized to use TempWorks’ intellectual property for any purpose, without the express prior written consent of TempWorks. All rights in and to the App not expressly granted to TempWorks in this EULA are hereby reserved and retained by TempWorks.
- Restrictions on Your Use of the App. You agree that you will not (i) use the App to transmit any materials that would be injurious to any third-party, including, without limitation, harmful computer code or files such as worms, time-bombs, bugs, malware or viruses, (ii) intentionally interfere with the operation of the App, (iii) post any content in the App, or through the App, that is vulgar, obscene, inappropriate, defamatory, abusive, lewd, or otherwise objectionable, (iv) decompile, disassemble, reverse-engineer, or attempt to determine, modify, or extract the source code of the App, (v) modify the App, (vi) make any derivative work of, or translation from, the App, (vii) violate any applicable laws, rules, or regulations in connection with your access to, or use of, the App, (viii) remove, alter or obscure any proprietary notice(s) contained in the App, (ix) use the App for any purpose for which it is not designed or intended, (x) use the App to create any product or service that competes, directly or indirectly, with, or is in any way a substitute for, any product or service offered by TempWorks or any affiliated company, or (xi) use the App to send unsolicited or spam email or communications.
- TempWorks Privacy Policy. You acknowledge receipt of, and agree and consent to the terms of, TempWorks’ privacy policy (“Privacy Policy”), a link to which, and/or the text of which, is contained within, or linked to by, the App, and which sets forth the practices of TempWorks with respect to the collection, use, and disclosure of information in connection with your use of the App. TempWorks reserves the right to change the provisions of the Privacy Policy at any time, and from time to time, at its sole discretion. TempWorks will post any changes to the Privacy Policy on its website and/or within the App. Your use of the App following the posting of such changes to the Privacy Policy will constitute your acceptance of such changes.
- Third-Party Software and Material; General. You agree that the App may (i) utilize, access, or include third-party software that is subject to such third-party’s own license terms (“Third-Party Software”), and/or (ii) permit access to materials, products and services created and provided by third parties, including, without limitation, third-party websites (“Third-Party Material”). Your right to use such Third-Party Software and Third-Party Material as part of the App is subject to and governed by the terms and conditions applicable to such Third-Party Software and Third-Party Material, including, without limitation, any applicable acknowledgments, license terms and disclaimers contained therein.
- Third-Party Software and Material; Terms of Service. Because TempWorks does not own, and as a result cannot control, the Third-Party Software and Third-Party Material, you agree that no license to (i) the Third-Party Software and Third-Party Material, (ii) any products, services, processes or technologies described in or offered by the Third-Party Software and Third-Party Material, and (iii) any copyrights, trademarks, patents or other intellectual property rights in the Third-Party Software and Third-Party Material, is being granted hereunder.
- Third-Party Software and Third-Party Material; Endorsements. You agree that the provision by TempWorks of access to any Third-Party Software and Third-Party Material shall not constitute or imply any endorsement by TempWorks of such Third-Party Software or Third-Party Material. TempWorks reserves the right to deny access to any Third-Party Software or Third-Party Material otherwise accessible through the App, although TempWorks has no obligation to restrict or deny such access.
- Term. This EULA shall be effective until terminated by TempWorks, as described in Paragraph 11 to this EULA.
- Termination. TempWorks may, in its sole and absolute discretion, at any time and for any reason or no reason, suspend or terminate this EULA and all rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any of the terms and conditions of this EULA, then this EULA and any rights afforded to you hereunder shall terminate automatically, without any notice or other action by TempWorks. Upon termination of the EULA, you shall immediately cease all use of the App and uninstall the App.
- Disclaimer of Warranties. You acknowledge and agree that the App is provided on an “as is” and “as available” basis, and that your use of, or reliance upon, the App and any Third-Party Software and Third-Party Material accessed thereby is at your sole risk. TempWorks (i) hereby disclaims all representations, warranties and guaranties regarding the App and any Third-Party Software and Third-Party Material, whether express, implied, or statutory, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose, non-infringement, and availability, and (ii) makes no warranty that (a) the App or Third-Party Software or Third-Party Material will meet your requirements, (b) access to the App or Third-Party Software or Third-Party Material will be uninterrupted, error-free, accurate, reliable, timely, or secure, (c) the quality of any products, services, information or other material accessed by or through the App will be as represented, or meet your expectations, or (d) any errors in the App or Third-Party Software or Third-Party Material will be corrected. TempWorks shall have no obligation to correct any errors, or otherwise support, maintain, or make available the App to you.
- Limitation of Liability. Under no circumstances will the TempWorks or its affiliates, partners, directors, shareholders, officers, employees, agents, consultants, representatives, attorneys, agents, successors or assigns (collectively, or in reference to any one of them, the “TempWorks Limited Parties”) be liable for any consequential, special, lost profit, business interruption, loss of data, punitive or reliance damages, or indirect loss or damages, regardless of whether such damages are based in contract, tort (including negligence), strict liability, or any other theory or form of action, or whether the TempWorks Limited Parties knew or should have known of the likelihood of such damages in any circumstances. The TempWorks Limited Parties’ maximum aggregate liability to you (whether in contract, tort (including negligence), strict liability, or other theory or form of action, shall not exceed the sum of one dollar and no cents ($1.00). The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
- Indemnification. You will indemnify, defend, and hold harmless TempWorks from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, attorneys’ fees and costs incurred by TempWorks) arising out of or related to (i) your access to or use of the App or Third-Party Software or Third-Party Material, (ii) your breach of this EULA, (iii) your violation of law, and/or (iv) your violation of the rights of TempWorks or any third-party, including the infringement by you of any intellectual property, or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive termination of this EULA. Notwithstanding the mediation and arbitration requirement set forth in section 16 of this EULA, in the event TempWorks believes immediate relief is necessary to avoid irreparable harm, TempWorks may immediately seek an injunction pending arbitration from any court of competent jurisdiction, related to which you agree that TempWorks shall not be required to post a bond of any kind.
- Compatibility and Interoperability. TempWorks does not warrant that the App will be compatible or interoperable with your Mobile Device, or any other piece of hardware, software, equipment or device installed on, or used in connection with, your Mobile Device. Accordingly, you acknowledge and agree that the TempWorks Limited Parties shall have no liability to you for any losses suffered, which arise out of or relate to compatibility or interoperability problems, including, but not limited to the diminishment of functionality of your Mobile Device, partial or complete failure of your Mobile Device, or partial or permanent damage or loss of data to your Mobile Device.
- Governing Law and Venue. The validity, interpretation, construction, performance, enforcement, and remedies of or relating to this EULA, and the rights and obligations arising out of, or related to, this EULA shall be governed and construed in all respects by the substantive laws of the State of Minnesota (without regard to the conflict of laws rules or statutes of Minnesota or any other jurisdiction that might result in the application of other law). Except where otherwise stated in this EULA, in the event of a dispute, you agree to mediate in the State of Minnesota, County of Ramsey, within thirty (30) days of notice of the dispute being tendered. The cost of mediation shall be borne equally by TempWorks and you. In the event that TempWorks and you fail to mediate, cannot mutually agree on a mediator, or fail to resolve their dispute by mediation, TempWorks and you agree to resolve the dispute by binding arbitration. Either TempWorks or you may initiate arbitration by bringing a written Demand for Arbitration on the other. Arbitration shall be conducted in the State of Minnesota, County of Ramsey, before a sole impartial arbitrator. TempWorks and you shall attempt to agree on an arbitrator, but if TempWorks and you fail to reach such agreement within 20 days after the Demand for Arbitration is served, either TempWorks or you may request appointment of the arbitrator by the AAA. The arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association. Judgment on the arbitration award may be entered in any court having jurisdiction. TempWorks and you shall each bear your own cost and expense, including attorneys’ fees, involved in such arbitration. This is an agreement for services, and the application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded.
- Severability. In the event that any of the terms of this EULA are in conflict with any applicable rule of law or statutory provision or otherwise unenforceable under applicable law or regulation, such terms shall be deemed stricken from this EULA, but such invalidity or unenforceability shall not invalidate any of the other terms of this EULA and this EULA shall continue in full force and effect.
- Waiver. Failure by either party at any time to enforce any obligation by the other party to claim a breach of any term of this EULA or to exercise any power agreed to hereunder will not be construed as a waiver of any right, power or obligation under this EULA, will not affect any subsequent breach and will not prejudice either party in regard to any subsequent action.
- Acceptable Use. You represent and warrant that you are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You agree to comply with all export and import laws and restrictions and regulations of any applicable United States or foreign agency or authority, and not to export, re-export or import the App in violation of any such restrictions, laws or regulations, or without all necessary approvals.
- Modification and Amendment. TempWorks may modify or amend the terms of this EULA by posting a copy of the modified EULA on TempWorks’ website. You will be deemed to have agreed to any modification or amendment by your decision to continue using the App following the date on which the modified or amended EULA is posted on TempWorks’ website.
- Survival. Any provisions of this EULA which by their express language or by their context are intended to survive the termination of this EULA shall survive such termination.
- Assignment. You shall not assign this EULA or any rights or obligations hereunder without the prior written consent of TempWorks, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
- Feedback. In the event you provide TempWorks with feedback regarding the use, operation, or functionality of the App, which may include but is not limited to known or suspected bugs, errors, or compatibility or interoperability issues, you hereby assign to TempWorks all rights in such feedback, and agree that TempWorks shall have the right to use the feedback in any manner it deems appropriate.
- Miscellaneous. If you use the App to send SMS messages, make voice calls, or use carrier-provided internet services and/or bandwidth, you may be subject to data and voice rates, as assessed by your carrier.
- Other Terms Required by Apple Inc. This EULA is solely between you and TempWorks, and not between you and Apple Inc. Apple Inc. is not responsible to furnish any maintenance and support services with respect to the App. Apple Inc. has no warranty obligations to you related to the App. Apple Inc. is not responsible to address any claims of you, or any third party, related to the App, or your use of the App. In the event of a third-party claim that the App or your use of the App infringes a third party’s intellectual property rights, Apple Inc. is not responsible for investigating, defending, settling, and discharging such claim. Apple Inc. and Apple Inc.’s subsidiaries are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple Inc. will have the right to enforce this EULA against you as a third-party beneficiary thereof.
- Entire Agreement. This EULA including the documents incorporated herein by reference constitutes the entire agreement with respect to the use of the App licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
