These Terms are intended to apply to the use of the Platform, and extend to all visitors, users, and others who access the Platform (“Users,” “You,” or “Your”), including those parties identified across the Service Agreements variously as “Nowsta,” “Nowsta Customer,” NowstaPay Client,” and/or “you,” as applicable. If the User of the Platform is a company, organization, or other entity rather than an individual, then (a) “you“ includes you and that entity; (b) “your“ has the corresponding meaning; and (c) you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to these Terms, (ii) have read and understand these Terms, and (iii) agree to these Terms on behalf of such entity.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 13.9 (THE “ARBITRATION AGREEMENT,”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 13.8(b) (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 13.9, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
This is a contract between you and Nowsta. You must read and agree to these terms before using the Platform. If you do not agree, you may not use the Platform. You may use the Platform only if you can form a binding contract with Nowsta, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Platform by anyone under 13 (or under 16 in Europe) is strictly prohibited and in violation of these Terms. If you are a minor (which is under the age of 18 in most states), you may use the Platform only with the involvement of a parent or legal guardian and their consent and agreement to these Terms. If you are under 18, you represent and warrant that you have your parent or guardian’s permission to use the Platform and that your parent or guardian is agreeing to these Terms. If you are a parent or legal guardian of a User under the age of 18, by allowing your child to use the Platform, you are subject to these Terms and responsible for your child’s activity on the Platform. The Platform is not available to any Users previously removed from the Platform by Nowsta.
1.2. Limited License.
Nowsta will use commercially reasonable efforts to provide you software services so that you may better manage your own workforce, through Nowsta’s authorized use of the proprietary software platform owned and operated by Nowsta. Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, freely revocable license to use the Platform as permitted by the features of the Platform, and as usable only during term of any Service Agreement. Nowsta reserves all rights not expressly granted herein in the Platform and the Nowsta Content (as defined below). Nowsta may terminate this license at any time for any reason or no reason.
1.3. User Accounts.
- Your account on the Platform (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. Nowsta will provide you with reasonable technical support services in accordance with Nowsta’s standard practice only to the extent that technical support services are included in any Service Agreement signed by you and Nowsta.
- You may never use another User’s User Account without permission. When creating your User 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 User Account, and you must keep your User Account password secure. To implement software services (“Services”) and as part of the onboarding and registration process, you will first identify and provide to Nowsta an administrative user-name and password for your Nowsta account. Nowsta reserves the right to refuse registration of any user or cancel passwords it deems inappropriate. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your User Account. You must notify Nowsta immediately of any breach of security or unauthorized use of your User Account. Nowsta will not be liable for any losses caused by any unauthorized use of your User Account.
- You may control your User profile and how you interact with the Platform by changing the settings in the settings page of your User Account. By providing Nowsta your email address you consent to our using the email address to send you Platform-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Platform and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in the settings page of your User Account. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.4. Platform Rules.
You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Platform in any medium, including by any automated or non-automated “scraping”; (b) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Platform in a manner that sends more request messages to the Nowsta servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Nowsta grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Platform; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Platform; (g) collecting or harvesting any personally identifiable information, including account names, from the Platform; (h) using the Platform for any commercial solicitation purposes; (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (j) interfering with the proper working of the Platform; (k) accessing any content on the Platform through any technology or means other than those provided or authorized by the Platform; or (l) bypassing the measures we may use to prevent or restrict access to the Platform, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Platform or the content therein. In addition, you will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or to any software (“Software”), or any related documentation or data related thereto owned by Nowsta; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Nowsta or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels.
1.5. Changes to the Platform.
We may, without prior notice, change the Platform; stop providing the Platform or features of the Platform, to you or to Users generally; or create usage limits for the Platform. We may permanently or temporarily terminate or suspend your access to the Platform without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
1.6. Disputes with Others.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Nowsta shall have no liability for your interactions with other Users, or for any User’s action or inaction.
1.7. Platform Location; Removal or Export.
The Platform is controlled and operated from facilities in the United States. Nowsta makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations. You may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. You may not use the Platform if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Platform are solely directed to individuals, companies, or other entities located in the United States.
2. USER CONTENT
Some areas of the Platform allow Users to submit, post, display, provide, or otherwise make available content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Platform is referred to as“User Content”). WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Platform, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Nowsta a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Platform and Nowsta’s (and its successors’ and affiliates’) business, including for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels.
For the purposes of these Terms, “Intellectual Property Rights“ means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Platform and these Terms, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and Nowsta’s use thereof as contemplated by these Terms and the Platform will not violate any law or infringe any rights of any third party, including any Intellectual Property Rights and privacy rights.
- Nowsta may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- You will not upload or make available through our Platform: nudity or other sexually suggestive content; hate speech, threats or direct attacks on an individual or group; abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful racially, ethnically, or otherwise objectionable content; content that contains self-harm or excessive violence; fake or impostor profiles; illegal content or content in furtherance of harmful or illegal activities; malicious programs or code; any person’s personal information without their consent; and/or spam, machine-generated content, or unsolicited messages.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Nowsta takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts, sends, or otherwise makes available over the Platform. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Platform, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Nowsta shall not be liable for any damages you allege to incur as a result of or relating to any User Content. You agree to protect all personally identifiable information of users maintained through the use of the Software and agree to comply with all applicable data privacy laws.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”) and further, ensure that utilization of any such Equipment will not harm or adversely affect the function and operation of the Nowsta Platform. You shall also be responsible for maintaining the security of the Equipment, account numbers, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
3. NOWSTA’S PROPRIETARY RIGHTS
Except for your User Content, the Platform and all materials therein or transferred thereby, including software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Nowsta Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Nowsta and its licensors (including other Users who post User Content to the Platform). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Nowsta Content. Use of the Nowsta Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Platform, including about how to improve the Platform or our products (the “Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Nowsta under any fiduciary or other obligation, and you hereby assign all right, title, and interest in the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Nowsta does not waive any rights to use similar or related ideas previously known to Nowsta, or developed by its employees, or obtained from sources other than you.
4.1. Billing Policies.
If you use the Platform, you agree to elect one of our pricing plans, as we may update them from time to time. Nowsta may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion. Any change to our Pricing or Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms. If your use of the Services exceeds the Service Capacity set forth on any Service Agreement or otherwise requires the payment of additional fees (per the terms of any Statement of Work), you shall be billed for such usage and you agree to pay the additional fees in the manner provided herein. Nowsta reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the any Service Agreement or renewal term.
4.2. No Refunds.
You may cancel your User Account at any time if no Service Agreement is in place; however, there are no refunds for cancellation and your access to the Platform will continue for the remainder of the annual or monthly term, whichever is applicable. In the event that Nowsta suspends or terminates your User Account or these Terms, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Platform, any content or data associated with your User Account, or for anything else. If you believe Nowsta has billed you incorrectly, you must contact Nowsta no later than thirty (30) days after the closing date on the first billing statement or invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Nowsta’s customer support department.
Nowsta may terminate any Service Agreement immediately and without notice in the case of nonpayment. If this occurs, you will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Nowsta will make all your user data available to you for electronic retrieval for a period of thirty (30) days, but thereafter Nowsta may, but is not obligated to, delete your stored user data.
4.4. Payment Information; Taxes.
We accept various payment methods through Stripe, including Mastercard, Visa, and American Express. By using the Platform, you agree to be bound by Stripe’s Services Agreement available at https://stripe.com/us/legal. All information that you provide in connection with a purchase or transaction with the Platform must be accurate, complete, and current. You agree to pay all charges incurred by users of your payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Platform at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such purchases and transactions. Nowsta will bill you by invoice if applicable with any Service Agreement, with full payment due when issued, unless you and Nowsta agree to a different time for payment. Any amounts unpaid after ten days are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Nowsta’s net income.
4.5. California Residents.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Nowsta cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
6. THIRD-PARTY LINKS AND INFORMATION
7. WARRANTY AND DISCLAIMER
7.1. Disclaimer of Nowsta Warranties.
Nowsta shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nowsta or by third-party providers, or because of other causes beyond Nowsta’s reasonable control, but Nowsta shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, NOWSTA DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM IS PROVIDED “AS IS” AND NOWSTA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NOWSTA DOES NOT IN ANY WAY WARRANT OR OTHERWISE VERIFY THE ACCURACY OR VERACITY OF ANY SUBMITTED USER DATA, AS IT IS DEFINED, NOR ANY WORKER DATA, AS IT IS DEFINED. NOWSTA DOES NOT IN ANY WAY WARRANT THE ACCURACY OR SUFFICIENCY OF ANY CALCULATED TAX WITHHOLDING FROM AN EARLY PAYMENT AMOUNT OR IN CALCULATING AN EMPLOYEE CAP WITHIN NOWSTAPAY’S USE. NOWSTA MAKES NO WARRANTIES WITH REGARD TO ANY ENGAGEMENT OR THE ACTS OR OMISSIONS OF ANY CONTRACTOR OR CONTRACTOR PROVIDED STAFF WITHIN THE USE OF THE MARKETPLACE. FURTHER, NOWSTA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR SERVICE, AND NOWSTA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7.2. Representations and Warranties.
You represent and warrant that (a) you have neither falsely identified nor provided any false information to gain access to the Platform, NowstaPay, and/or the Marketplace, and that, for Registered Employers and NowstaPay Clients, your billing information is correct, and (b) the User Content you submit to the Platform and any content you submit to NowstaPay or to Nowsta through use of NowstaPay or the Marketplace, will not contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computerprogramming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
7.3. User Disputes.
- You are solely responsible for your interaction with other Users. Nowsta has no obligation to become involved in disputes between Users. If you have a dispute with one or more Users, you release Nowsta (and our officers, directors, agents, employees, subsidiaries, and affiliates) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
- You are solely responsible for payments made to Registered Workers through NowstaPay. Nowsta has no obligation to become involved in disputes between NowstaPay Clients and their Workers, whether Registered Workers, Unregistered Workers, or Ineligible Workers, each as defined in the NowstaPay Service Agreement. If you have a dispute with one or more Registered Workers, you release Nowsta (and our officers, directors, agents, employees, subsidiaries, and affiliates) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
- You are solely responsible for the acts and omissions, and any contract or work disputes, between and among Nowsta Customers, Nowsta Customer employees or agents, Contractor(s), and/or Contractor Staff, each, as defined in the Marketplace Service Agreement.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, (a) NOWSTA AND ITS SUPPLIERS (INCLUDING ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF ANY APPLICABLE SERVICE AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) FOR ANY MATTER BEYOND NOWSTA’S REASONABLE CONTROL; (iii) FOR ANY ACT OR OMISSION OF A CONTRACTOR OR CONTRACTOR PROVIDED STAFF THROUGH YOUR USE OF THE MARKETPLACE; OR (iv) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES YOU PAID TO NOWSTA FOR THE PLATFORM IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; AND (b) NEITHER PARTY TO ANY APPLICABLE SERVICE AGREEMENT SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY UNDER SUCH SERVICE AGREEMENT FOR THAT RESPECTIVE NOWSTA SERVICE FOR LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY SERVICE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREUNDER, EVEN IF THE PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL NOWSTA BE LIABLE FOR SUMS FORWARDED TO REGISTERED WORKERS, CORRECTLY OR INCORRECTLY, WHICH WERE BASED UPON WORKER DATA SUBMITTED OR CONFIRMED BY, FOR, OR ON BEHALF OF NOWSTAPAY CLIENT BY NOWSTAPAY CLIENT OR BY ITS DESIGNATED SHIFT MANAGERS WITHIN THE USE OF NOWSTAPAY.
Furthermore, Nowsta expressly disclaims liability for any claim, loss, or liability of any kind resulting from:
- Your failure to adequately supervise or control Workers or safeguard your premises, processes, or systems.
- You entrusting Workers with unattended premises, cash, checks, keys, credit cards, merchandise, confidential or trade secret information, negotiable instruments, or other valuables, without Nowsta’s express prior written approval.
- You requesting or permitting Workers to use any motorized vehicle, regardless of ownership, in connection with the performance of services for Customer unless Nowsta has given prior approval in writing and you have ensured that you have proper automobile insurance coverage in place.
- Your assignment of Workers to duties different from their original agreed-upon duties or you making substantial changes to a Worker’s job duties or risks without Nowsta’s prior written approval.
- The negligence, or conduct or misconduct of your officers, employees, and agents.
- Failure by you to provide Workers with a safe work site or to provide information, training, and safety equipment with respect to any hazardous substances or conditions to which Workers may be exposed at the work site, whether or not required by law.
- Claims for special, indirect, consequential, punitive, or lost profit damages.
- The action, inaction, negligence, conduct, misconduct, or omission of any staffing agency or any third-party vendor.
You agree that Nowsta’s total liability to you for any claims, losses, expenses, or damages whatsoever arising out of or in any way related to your relationship with Nowsta from any cause or causes, including Nowsta’s negligence, shall not exceed the total amount paid to Nowsta or paid on Nowsta’s behalf by its insurers in settlement or satisfaction of any claim. If no such insurance coverage is provided with respect to a claim, then Nowsta’s total liability for such uninsured claim shall not exceed twenty-five percent (25%) of the total of the payments made by you to Nowsta in the 365 days immediately preceding the event leading to such claim.
You agree to defend, indemnify, and hold Nowsta and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any liability to Registered Workers, Unregistered Workers through the Nowsta Platform and to any third parties, including reasonable attorneys’ fees, arising from or related to: (a) any actual or alleged misuse of the Platform by you and/or your affiliates, agents or contractors; (b) any actual or alleged infringement by you of any Intellectual Property Rights or any claim that you violate any rights of publicity or privacy of any third party; (c) any material violation or alleged material violation of any laws or regulations by you; (d) any negligent or willful misconduct of you and/or your affiliates, agents or contractors; (e) any breach by you of any representation, warranty, covenant, or obligation in these Terms or any applicable Service Agreement to which you are a party; (f) any negligent or intentional act or omission committed by you and/or your affiliates, agents or contractors, in connection with the performance of these Terms or any applicable Service Agreement, which act or omission gives rise to any claim for damages against you, Nowsta and/or its Nowsta’s parents, affiliates, employees or agents; and (g) your violation of applicable law; and your breach of these Terms or any applicable Service Agreement, or in relation to any claim reasonably related to the Platform provided to you by Nowsta. This shall include any claims made by employees or staff of any Registered Employer as well as any claims made by and between any Registered User. This shall also include any claims made by employees or staff of any NowstaPay Client, as well as any claims made by any individual or entity claiming rights of garnishment over a Registered Workers Early Payment through the services of NowstaPay.
You agree to indemnify, hold harmless and defend Nowsta from any and all claims arising out of or related to an Engagement through your use of the Marketplace, including claims that Contractor or its Staff was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor or its Staff was misclassified (including wages, taxes, penalties, interest and attorney’s fees), any claim that Nowsta was an employer or joint employer of a Contractor or its Staff, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for unpaid wages, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. Such indemnified claims shall include those which are attributable to personal injury, sickness, disease or death; and/or result from injury to or destruction of real or personal property including loss of use thereof, theft, misuse or misappropriation.
Nowsta specifically denies any obligation to defend and/or indemnify you or your affiliates, agents or contractors from and against any third-party claims made against you or your affiliates, agents or contractors arising from any negligent or intentional act or omission committed by or in connection with the Platform or other Nowsta services, including performance of any Nowsta Customer Engagement through your use of the Marketplace, as it may apply; or any claim made by a Contractor, Staff, customer of you, or any other third party made in connection with any Engagement through the Marketplace, including any claims for injuries by a Contractor or Staff sustained during the course of an Engagement, or immediately preceding or following such Engagement, whether by intentional act, omission, or negligence.
10. COVID-19 FEATURE WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY, AND INDEMNIFICATION
10.1. Disclaimer of Nowsta Warranties: COVID-19 Features.
In addition to all disclaimers of warranties contained herein, Nowsta specifically states that NOWSTA DOES NOT WARRANT THAT THE RESPONSES PROVIDED BY ANY REGISTERED USER OR PROSPECTIVE/ACTUAL EMPLOYEE OR CONTRACTOR ANSWERING NOWSTA’S COVID-19 PRE-SHIFT SCREENING FEATURE, OR ANY RELATED FEATURE, THROUGH THE USE OF THE PLATFORM, ARE ACCURATE, NOR DOES NOWSTA WARRANT THAT SUCH RESPONSES ARE SUFFICIENT TO MAKE DETERMINATIONS RELATING TO COVID-19 PROCEDURES. FURTHER, NOWSTA DOES NOT WARRANT THAT THOSE RESPONSES PROVIDED BY ANY USER TO A REGISTERED EMPLOYER’S PRE-SHIFT COVID-19 QUESTIONNAIRE ADHERE TO ANY SPECIFIC LOCAL, STATE, OR FEDERAL STATUTE, RULE, REGULATION, PROCEDURE, POLICY, GUIDELINE, OR SIMILAR IMPLEMENTATION RELATIVE TO DETERMINATIONS OF LABOR, EMPLOYMENT, HEALTH, OR SAFETY OF REGISTERED EMPLOYER’S EMPLOYEES, CONTRACTORS, STAFF, CUSTOMERS, VENDORS, OR ANY OTHER INDIVIDUAL. NOWSTA MAKES NO REPRESENTATION TO THE REGISTERED EMPLOYER OR REGISTERED USER OF ANY LOCAL, STATE, OR FEDERAL STATUTE, RULE, REGULATION, PROCEDURE, POLICY, GUIDELINE, OR SIMILAR IMPLEMENTATION RELATIVE TO DETERMINATIONS OF LABOR, EMPLOYMENT, HEALTH, OR SAFETY.
10.2. Representations and Warranties.
You represent and warrant that you shall consult your local, state, and federal guidelines relative to COVID-19 statutes, rules, regulations, procedures, policies, and guidelines, whether in the context of employment decisions or health and safety matters. You further represent and warrant that any and all decisions made by you, whether related to labor, employment, health, safety, or otherwise, shall be made solely within your own discretion, and that the information provided to you by Nowsta from the COVID-19 pre-shift screening functions is used solely for the intended purposes of screening of employees for COVID-19, and any action on your part deriving therefrom rests solely with you. You further represent, warrant, and acknowledge that, other than the information supplied by Registered Users through the COVID-19 pre-shift screening functions, Nowsta has made not representations as to the veracity of the provided information, nor any representations on the sufficiency of such screening in the context of adherence by you to COVID-19 labor, employment, health, and safety requirements of your local, state, and federal authorities.
10.3. Limitation of Liability of Nowsta.
In addition to all limitations of liability contained herein, and notwithstanding anything to the contrary, NOWSTA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, REPRESENTATIVES, CONTRACTORS, AGENTS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO OR ARISING FROM THE USE OF NOWSTA’S PRE-SHIFT COVID-19 SCREENING FEATURE, OR ANY RELATED FEATURE OR YOUR ACTIONS RESULTING FROM THE RESPONSES PROVIDED THEREFROM, INCLUDING ANY CLAIM, CAUSE OF ACTION, ALLEGATION, OR OTHERWISE RELATING TO THE SUFFICIENCY OF THE INFORMATION PROVIDED, THE VERACITY OF THE INFORMATION PROVIDED, THE ACTIONS AND DECISIONS MADE BY YOU FOLLOWING THE PROVISION OF THE INFORMATION, OR ANY RESULTING MATTERS, INCLUDING THOSE MATTERS WHICH CONCERN LABOR, EMPLOYMENT, HEALTH, SAFETY, OR OTHER LIABILITY ARISING FROM YOUR USE OF NOWSTA’S COVID-19 PRE-SHIFT SCREENING FEATURE OR ANY MATTER RELATING TO COVID-19, WHETHER SUCH CLAIMS, CAUSES OF ACTION ALLEGATIONS, OR OTHERWISE ARE AT LAW OR IN EQUITY, ALONG WITH ALL CLAIMS OF DAMAGES RELATING THERETO.
You agree to defend, indemnify, and hold Nowsta and its subsidiaries, affiliates, officers, directors, representatives, contractors, agents, and employees harmless from any third party, including registered users, any individual providing responses through Nowsta’s Pre-Shift COVID-19 Screening Features, and any other third party, whether your employee, customer, or otherwise, including reasonable attorney’s fees, which may arise from your use of Nowsta’s Pre-Shift COVID- 19 Screening Features, or any matter resulting therefrom or relating thereto, including those matters relating to your failure to adhere to these Terms or to operate in accordance with local, state, and federal statutes, rules, regulations, procedures, policies, and guidelines relating to labor, employment, health, and safety.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with these Terms, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including any applicable Service Agreements, as well as non-public business, product, technology and marketing information. If something is labeled “Confidential,” it is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
11.2. Protection and Use of Confidential Information.
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with these Terms; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in these Terms.
11.3. Compelled Access or Disclosure.
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
12. ADDITIONAL TERMS FOR MOBILE APPLICATIONS.
12.1. Mobile Applications.
We may make available software to access the Platform via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. Nowsta does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Nowsta hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Nowsta User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (c) make any copies of the Mobile Applications; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (e) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Nowsta may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Nowsta or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Nowsta reserves all rights not expressly granted under these Terms. If the Mobile Applications are being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Platform and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Mobile Applications originate in the United States, and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Platform.
12.2. Mobile Applications from Apple App Store.
The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Nowsta, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Nowsta as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Nowsta as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s Intellectual Property Rights, Nowsta, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Nowsta acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
12.3. Mobile Applications from Apple App Store.
Mobile Applications from Google Play Store. The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms are between you and Nowsta only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) Nowsta, and not Google, is solely responsible for its Google- Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to Nowsta’s Google-Sourced Software.
If any provision of these Terms or any applicable Service Agreement, is found to be unenforceable, illegal, or invalid, in any jurisdiction under any circumstances for any reason: (a) such provision will be reformed to the minimum extent necessary to cause such provision to be valid, enforceable and legal while preserving the intent of the parties as expressed in, and the benefits to such parties provided by, such provision; or (b) if such provision cannot be so reformed, such provision will be severed from these Terms and an equitable adjustment will be made to these Terms or applicable Service Agreement (including addition of necessary further provisions to these Terms or applicable Service Agreement) so as to give effect to the intent as so expressed and the benefits so provided. Such holding will not affect or impair the validity, enforceability or legality of such provision in any other jurisdiction or under any other circumstances. Neither such holding nor such reformation or severance will affect or impair the legality, validity or enforceability of any other provision of these Terms or applicable Service Agreement.
These Terms and each applicable Service Agreement which may apply to you, are not assignable, transferable or sub-licensable by you except with Nowsta’s prior written consent. Nowsta may transfer and assign any of its rights and obligations under these Terms or any applicable Service Agreement without consent.
13.3. Complete Assignment.
These Terms and each applicable Service Agreement to which you are a party, are collectively the complete and exclusive statement of the mutual understanding of the parties with respect to each applicable Nowsta service, and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms and the applicable Service Agreements, and that all waivers must be in a writing signed by both parties, except as otherwise provided herein.
We may modify and change these Terms and the individual Service Agreements from time to time. We will not “retroactively” change these Terms or any applicable Service Agreement to which you may be subject, and any modifications we make shall take effect proactively, once you next access the Platform or the respective Nowsta service. You may not modify these Terms or any applicable Service Agreement unless we agree to such modification in writing. Please be advised that, as these Terms and any applicable Service Agreement are modified and changed over time, you should periodically check the website and the published Terms.
No agency, partnership, joint venture, or employment is created as a result of these Terms or any applicable Service Agreement, and you do not have any authority of any kind to bind Nowsta in any respect whatsoever.
All notices under these Terms and the applicable Service Agreements which apply to you will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13.7. Cooperation and Further Assurances.
You agree to reasonably cooperate with Nowsta to serve as a reference account upon request. Subject to the terms and conditions of these Terms and each applicable Service Agreement which may apply to you, at any time and from time to time, each of the parties thereto, at their own cost and expense, in good faith and in a timely manner, shall use its commercially reasonable efforts to take or cause to be taken all appropriate actions, do or cause to be done all things necessary, proper or advisable, and execute, deliver and acknowledge such documents and other papers as may be required to carry out the provisions of these Terms and each applicable Service Agreement which may apply to you, and to give effect to the consummation of the transactions contemplated by these Terms and each individual Service Agreement which may apply to you.
13.8. Governing Law; Jurisdiction; Waiver of Jury Trial.
- These Terms shall be governed by the laws of the State of New York without regard to its conflict of laws provisions that would result in the application of another law. YOU AGREE THAT ANY PROCEEDING (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THESE TERMS OR ANY APPLICABLE SERVICE AGREEMENT, ANY TRANSACTIONS CONTEMPLATED THEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES THEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING OR REFERENCED, SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN A COURT IN THE STATE OF NEW YORK IN THE JUDICIAL DISTRICT WHERE NOWSTA HAS ITS PRINCIPAL PLACE OF BUSINESS. EACH PARTY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF ANY COURT IN THE STATE OF NEW YORK IN THE JUDICIAL DISTRICT WHERE NOWSTA HAS ITS PRINCIPAL PLACE OF BUSINESS IN RESPECT OF ANY SUCH PROCEEDING. EACH PARTY CONSENTS TO SERVICE OF PROCESS UPON IT WITH RESPECT TO ANY SUCH PROCEEDING BY DELIVERY TO THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER PROVIDED FOR THE GIVING OF NOTICES SET FORTH IN THE ORDER FORM FOR EACH RESPECTIVE NOWSTA SERVICE AND/OR AS PROVIDED BY YOU IN YOUR REGISTRATION FOR USE OF THE PLATFORM, OR BY ANY OTHER MEANS OTHERWISE PERMITTED BY APPLICABLE LAWS AND RULES. EACH PARTY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING IN ANY COURT IN THE STATE OF NEW YORK IN THE JUDICIAL DISTRICT WHERE NOWSTA HAS ITS PRINCIPAL PLACE OF BUSINESS AND ANY CLAIM THAT IT MAY NOW OR HEREAFTER HAVE THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
- WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, 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 AND NOWSTA AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER NOWSTA USERS. YOU AND NOWSTA FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NOWSTA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
- READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM NOWSTA. This Section 13.9 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Nowsta that arises out of or relates to, directly or indirectly: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Service, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Service; or (iv) any other aspect of your relationship or transactions with Nowsta, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
- If you are a new Nowsta user, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing Nowsta at support with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
- For any Claim, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Nowsta has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the“Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and Nowsta agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Nowsta agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, any provision of these Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
- Nothing in this Section 13.9 shall be deemed as: preventing Nowsta 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; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
- If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
13.10. Injunctive Relief.
You acknowledge that remedies at law may be inadequate to protect Nowsta against any breach of these Terms or any applicable Service Agreement which may apply to you, and, without prejudice to any other rights and remedies otherwise available to Nowsta, you agree to the granting of injunctive relief in Nowsta’s favor, without any requirement to post a bond or other security or to prove actual damages, and without regard to the adequacy of any remedy at law.
The parties agree that they shall not discriminate on the basis of race, color, religion, gender, sexual orientation, gender identity or expression, age, national origin, disability, veteran or military status, or any other protected category under applicable law. You and Nowsta each affirms that it is an equal opportunity and affirmative action employer and it will comply with all applicable federal, state, and local laws, rules, regulations, and orders governing employment, including the Fair Labor Standards Act; Executive Order 11246 and Amendment; the Vietnam Era Veterans Readjustment Act of 1975; the Civil Rights Act of 1964; the Equal Pay Act of 1963, the Age Discrimination in Employment Act; the Immigration Reform and Control Act of 1986; the Americans With Disabilities Act; the National Labor Relations Act; and the Immigration Control Act of 1990. You and Nowsta shall also comply with Executive Order 13201, as amended, which is also administered by the OFCCP and all relevant rules, regulations and orders pertaining thereto. The employee notice clause and all other provisions of 29 C.F.R., part 470, are hereby incorporated by reference.
The headings of these Terms and each applicable Service Agreement are for convenience of reference only and are not part of the substance of these Terms or any applicable Service Agreement.
These Terms and each applicable Service Agreement may be signed in any number of counterparts, each of which (when executed and delivered) shall constitute an original instrument, but all of which together shall constitute one and the same instrument. These Terms and each applicable Service Agreement shall become effective at such time as counterparts shall have been executed and delivered by both of the parties, regardless of whether both of the parties have executed the same counterpart. It shall not be necessary when making proof of these Terms or any applicable Service Agreement to account for any counterparts other than a sufficient number of counterparts which, when taken together, contain signatures of both of the parties. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
These Terms and each applicable Service Agreement shall be deemed to have been drafted jointly by you and Nowsta, and shall not be specifically construed against either party based on any claim that such party or its counsel drafted these Terms or any applicable Service Agreement. Unless otherwise expressly specified in these Terms or in any applicable Service Agreement:
- the words “include”, “includes” and “including”, and correlative words, shall be deemed to be followed by the words “without limitation”;
- any terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa;
- the words “hereof”, “hereby”, “herein” and “hereunder”, and correlative words, refer to these Terms and any applicable Service Agreement to which you are a party as a whole and not any particular provision;
- the word “or” is not exclusive and is deemed to have the meaning “and/or”;
- references to a person shall mean a person or entity, and shall include the successors and assigns thereof; and
- all references to payments in these Terms and any applicable Service Agreement shall be payments in U.S. dollars.
13.15. Contact Us.
If you have any questions about these Terms, the Service Agreements, or the Platform please contact us at: [email protected].