Welcome to theEMPLOYEEapp by APPrise Mobile! We are pleased that you have chosen our platform to create your own internal employee communications mobile application (“App”) for iPhones, iPads and Android Mobile devices.
In order to take advantage of theEMPLOYEEapp, you will need to read and agree to the terms and conditions set forth in this agreement (the “Agreement”) regarding your use of theEMPLOYEEapp. As part of theEMPLOYEEapp you will receive a very easy to use and intuitive cloud-based content management system (“CMS”) through which to post files, links and other content that will become immediately available to employees or other individuals (“End Users”) that you designate in a database or by manually entering them into the CMS. Collectively, all of this is referred to as the "Services." Details regarding your obligations, rights and limitations with regard to the Services are contained in this Agreement. This Agreement is between you as the customer ("You" or the "Customer") and theIRapp, LLC, a New York Limited Liability Corporation doing business under the name theEMPLOYEEapp ("theEMPLOYEEapp").
- In subscribing to the Services, You agree to be bound by the terms of this Agreement. To the extent You are acting on behalf of or using the Services on behalf of a company or other organization, by agreeing to this Agreement, You are doing so also on behalf of that other organization. In addition, You may invite other End Users to use the App by including them in a database of individuals (the “Database”). If You are entering into this Agreement on behalf of another company or organization, You represent that You have the authority to do so as well as the End Users, if applicable. If You do not have such authority to or if You do not agree to the terms of this Agreement, You may not use the Service.
- You warrant that You will not use the Services for any purposes prohibited by this Agreement or by any law.
- theEMPLOYEEapp reserves all rights, title and interest to the Services and all hardware, software and other items used to provide the Services. No title or ownership is transferred to You under the terms of this Agreement. In providing the Service, theEMPLOYEEapp is only giving You a limited, nonexclusive, nontransferable, revocable license to use the Services. All rights not explicitly granted are reserved by theEMPLOYEEapp.
- theEMPLOYEEapp is committed to providing the best possible app platform and will make updates on a periodic basis. You agree that we can make unscheduled updates/changes to the Services at any time. theEMPLOYEEapp also reserves the right to modify or discontinue the Services or any feature or functionality thereof at any time without notice to You. To the extent changes require a material change to the terms of this Agreement, we will notify You with reasonable notice of such change via email. In order to continue to utilize the Services, You must agree to the new terms which will become effective on the date set forth in our notice. By continuing to use the Services, You will have accepted the new terms of this Agreement. If You do not agree with the new terms, Your only right is to cancel Your subscription under the terms of this Agreement.
II. Content Management System.
- As part of the Services, You will be receiving a Content Management System (“CMS”) through which You will upload files or link to third party websites or services (collectively the “Content”) that will then appear on the App. In addition, through the CMS You will manually enter or upload a database file of information pertaining to End Users who You will then invite to download the App (collectively, the “Database”).
- You acknowledge that You have sole responsibility for the addition and deletion of the Content and Database into and from the CMS and theEMPLOYEEapp bears no responsibility for the Content and Database or your efforts to upload them to the CMS.
- theEMPLOYEEapp utilizes the cloud-based data storage facilities of Amazon Web Services (“AWS”). For more information on AWS and their security policies, please visit http://aws.amazon.com/security/ and http://aws.amazon.com/compliance/ . In entering into this agreement, You consent to the use of AWS as the host of the Content and the Services as well as the security protocols and policies that AWS maintains. You hereby release theEMPLOYEEapp from any responsibility or liability with regard to the security of the Content and the Database.
- To the extent You or any End User accesses the App and Services from outside the United States, You maintain full responsibility for compliance with all local laws.
- Within the CMS, detailed instructions are included with respect to the uploading of Content and management of the Database (the “Instructions”). Before using the Services, You represent that You have read and understand the Instructions and have had the opportunity to ask any questions of theEMPLOYEEapp Customer Care staff which have been answered satisfactorily. If they have not been answered satisfactorily, You will not use the Services.
- theEMPLOYEEapp does not claim ownership to the Content. However, to provide the Services, your acceptance of this Agreement gives us permission to use or disclose the Content with respect to any request by government, regulatory or other legal bodies (including any subpoenas we may receive). You authorize theEMPLOYEEapp to check, from time to time, to ensure that the Content does not violate the terms of this Agreement or any applicable law.
- In entering into this Agreement, You acknowledge that theEMPLOYEEapp does not endorse the Content and has no liability with respect to the Content. You represent that You have the right to post the Content and theEMPLOYEEapp has no involvement with or responsibility in Your doing so. You hereby release theEMPLOYEEapp with respect to any liability for the Content. You also agree to defend and indemnify theEMPLOYEEapp with respect to any claims brought against theEMPLOYEEapp having to do with the Content. If we determine that the posting of the Content is in violation of any applicable law or is unauthorized under this Agreement, You acknowledge and give us permission to remove such content.
- You agree not to upload Protected Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability of 1996 Act as amended (“HIPAA”); theEMPLOYEEapp disclaims all liability for such PHI.
- In entering into this Agreement, You also acknowledge that theEMPLOYEEapp has no involvement with or responsibility for your Database. You hereby release theEMPLOYEEapp with respect to any liability for mistakes made to the Database and, as a result, Content being made available to inappropriate End Users. You also agree to defend and indemnify theEMPLOYEEapp with respect to any claims brought against theEMPLOYEEapp having to do with the Database.
III. Acceptable Use of the Service.
theEMPLOYEEapp reserves the right to suspend the Services at any time with or without cause and without liability. Examples of where the Services may be suspended for cause include but are not limited to the following:
- We determine that You do not have permission to post the Content to the CMS;
- We learn that the Content violates , infringes upon or misappropriates a third-party’s intellectual property rights;
- The Content is defamatory, obscene, threatening, or violates any law;
- The believe the Content is threatening and can harm minors;
- The Content contains viruses that has the potential to interfere with the Services.
IV. Your Account.
- To utilize the Service, You must create an account (“Account”) by going through a registration process. In creating the Account, You represent that the information provided is true and accurate and that You will keep it updated.
- Each Account created will have a CMS with its own log-in credentials (username and password). The CMS will correspond to the App on the Account.
- To create an account You must be 18 years of age or older. By entering into this Agreement You represent that You are at least the age of 18.
- As part of the Account creation process, You will designate a user name and password for yourself. You are responsible for keeping the password confidential and only providing it to those You wish to give access to your CMS.
- In entering into this Agreement You agree that theEMPLOYEEapp is not liable for unauthorized or third-party use of your Account. If You lose your password or learn of unauthorized use of your Account, You will notify us immediately.
- When creating your account, You will determine how many End Users You wish to be able to download your App. Based on this number, You will purchase the appropriate number of licenses (“End User Licenses”). The number of End Users that will be able to access the App is limited to the maximum number of End Users Licenses purchased. If You want to increase the number of End Users, You will have to purchase additional End User Licenses.
V. Subscription Plans.
theEMPLOYEEapp offers two convenient subscription plans – Monthly and Annual
- Monthly subscription plans will continue for 31 calendar days starting on the day in which End User Licenses are purchased. The monthly subscription will automatically renew unless You cancel a minimum of three (3) calendar days prior to the renewal date. You will be billed on or about the same day each month unless cancelled.
- Annual – Annual subscriptions will continue for 12 months starting on the day in which End User Licenses are purchased. The annual subscription will automatically renew unless You cancel a minimum of ten (10) calendar days prior to the renewal date. Once You choose an annual subscription, there will be no refunds. If You are not sure whether You will want to continue the Services for a year, we recommend that You select the monthly subscription. You can always convert to an annual subscription at the conclusion of a month cycle provided You give a minimum of three (3) calendar days notice. If You want to select a monthly subscription after You have selected annual, You can only do so at the conclusion of the year.
- Every time You purchase End User Licenses, a new subscription (monthly or annual) will begin for the new End User Licenses purchased. If You wish to consolidate your subscriptions, You can contact CustomerCare@theEMPLOYEEapp.com. However, depending on the number of active subscriptions, theEMPLOYEEapp reserves the right not to accommodate such requests and has no obligation to do so.
- Fees associated with monthly and annual subscriptions are posted on www.theEMPLOYEEapp.com. No tax is included in the subscription price. You acknowledge that You are responsible for any tax.
- In the event of a price change, we will provide You with at least 30 days notice via the primary email address on the Account. If You have an annual subscription, the price will not change until after the year concludes. For monthly subscriptions, the price change will start on your next monthly billing cycle. If You do not agree to the change, You must cancel no later than three (3) calendar days prior to the end of a monthly subscription or ten (10) calendar days prior to the end of an annual subscription. If You fail to do so, we will automatically renew the Services at the then current price and for the same subscription period and will charge your credit card on the Account commencing on the first day of the renewal of the subscription.
- f. Changes to subscription plans can only be made by emailing CustomerCare@theEMPLOYEEapp.com according to the notice periods provided in this Agreement.
VI. Trial Period.
The initial subscription for each Account comes with a 14 day trial period (“Trial Period”). At any time prior to the end of the Trial Period, You may cancel without any cost. To activate the Trial Period, You will need to include credit card information. If not cancelled, on the last day of the Trial Period, the payment for the subscription will be charged to the credit card provided. If You do not cancel prior to the end of the Trial Period, You hereby authorize theEMPLOYEEapp to charge the credit card provided. You may cancel prior to the end of the subscription period selected.
VII. Payment and Credit Card Rules.
- Payment for the Services is by credit card only. In paying for the Services, You represent that the credit card information provided when setting up your Account is accurate and that You are authorized to use the credit card. You agree to promptly update your credit card and other account information upon any change as soon as possible.
- You authorize theEMPLOYEEapp to charge the credit card for the subscription and or additional services requested.
- If payment is not received due to failure of the credit card to process and if You haven’t cancelled Your subscription, You acknowledge that You remain liable for the fee for the renewal period (month or year) and any other amounts due for additional services.
- If payment isn’t received, your Account and CMS may become inactive and You will not be able to access the Content and Database. You have sixty (60) calendar days to pay the renewed subscription fee (the “Reactivation Grace Period”). If You don’t pay during the Reactivation Grace Period, You acknowledge that the Content and Database will be permanently deleted from theEMPLOYEEapp’s servers after the Reactivation Grace Period and You will never again have access to the Content and Database. During the Reactivation Grace Period, You also acknowledge that You will not be able to access the Content and Database until You pay.
- If payment is not received and your CMS is deactivated, a reactivation charge of $500 for monthly subscriptions and $1,000 for annual subscriptions will be assessed. Payment for the amounts due and the reactivation charge must be received prior to the end of the Reactivation Grace Period.
- You agree to pay theEMPLOYEEapp all costs we incur in seeking to collect any amounts due under this Agreement, including attorneys fees and other related legal costs.
- All amounts paid are non-refundable.
VIII. Termination of the Services.
- You can terminate your Account or any subscription at any time by providing theEMPLOYEEapp with the notice required by this Agreement by emailing CustomerCare@theEMPLOYEEapp.com.
- theEMPLOYEEapp reserves the right to terminate your Account (or the access privileges of any End User) and this Agreement, with or without notice. If this Agreement is terminated for failure to pay or for cause, no refund shall be due.
- Prior to the termination of your Account, You are solely responsible for the deletion of the Content or Database from your CMS. Following the termination of your Account, if the Content and Database remains in your CMS, they will be deleted after sixty (60) calendar days. You acknowledge that following the termination of your Account, theEMPLOYEEapp has no responsibility to return the Content and/or Database to You.
IX. Intellectual Property.
- a. The Services provided under this Agreement by theEMPLOYEEapp contain proprietary and confidential information protected by applicable intellectual property laws. In entering into this Agreement, You acknowledge that the technology behind the Services and all aspects of the CMS are the intellectual property of theEMPLOYEEapp and You will not modify, publish, reverse engineer, or create derivative works that violate such intellectual property rights belonging to theEMPLOYEEapp. You also acknowledge that, except as provided in this Agreement, theEMPLOYEEapp is not granting You any right, title or interest in our intellectual property.
- b. You grant theEMPLOYEEapp the right to use your company’s name and/or logo contained in the App for its marketing or promotional purposes on theEMPLOYEEapp website or other APPrise Mobile website as well as in other communications with existing or prospective customers. If You do not wish for theEMPLOYEEapp to use your company’s name or logo, You must send an email to CustomerCare@theEMPLOYEEapp.com that specifically states that You do not wish us to do so.
X. Disclaimer of Warranty; Limitation of Liability.
- YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. NEITHER THEEMPLOYEEAPP, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY SERVICE PROVIDERS OR LICENSORS WARRANT THAT THEEMPLOYEEAPP AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
- THEEMPLOYEEAPP AND THE SERVICES IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
- THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT THEEMPLOYEEAPP IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
- IN NO EVENT WILL THEEMPLOYEEAPP, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THEEMPLOYEEAPP AND THE SERVICES. IN ENTERING INTO THIS AGREEMENT YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL ASPECTS OF THE SERVICES.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THEEMPLOYEEAPP AND ITS AFFILLIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL TO THREE MONTHS OF YOUR SUBSCRIPTION FEE FOR THE SERVICES OR TWENTY-FIVE DOLLARS ($25.00). THIS LIMITATION APPLIES EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES. TO THE EXTENT A JURISDICTION DOES NOT PERMIT SUCH LIMITATIONS OF DAMAGES, THEEMPLOYEEAPP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITED BY LAW.
- IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER THEEMPLOYEEAPP, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THEEMPLOYEEAPP OR PROVIDED BY THE SERVICE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO YOU OR THE END USERS, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.
- FORCE MAJEURE – NEITHER PARTY WILL BE RESPONSIBLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, WAR, RIOT, EMBARGOES, ACTS OF CIVIL OR MILITARY AUTHORITIES, FIRE, FLOODS, ACCIDENTS, SERVICE OUTAGES RESULTING FROM EQUIPMENT AND/OR SOFTWARE FAILURE AND/OR TELECOMMUNICATIONS FAILURES, POWER FAILURES, NETWORK FAILURES, FAILURES OF THIRD PARTY SERVICE PROVIDERS (INCLUDING PROVIDERS OF INTERNET SERVICES, HOSTING SERVICES AND TELECOMMUNICATIONS). THE PARTY AFFECTED BY ANY SUCH EVENT SHALL NOTIFY THE OTHER PARTY WITHIN A MAXIMUM OF FIFTEEN (15) BUSINESS DAYS FROM ITS OCCURENCE. THE PERFORMANCE OF THS AGREEMENT SHALL THEN BE SUSPENDED FOR AS LONG AS ANY SUCH EVENT SHALL PREVENT THE AFFECTED PARTY FROM PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.
XI. General indemnification.
In entering into this Agreement, You agree to submit any dispute under this Agreement to binding arbitration. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in New York, New York.
XIV. Miscellaneous Provisions.
- Except as otherwise provided in this Agreement, this Agreement and the terms and conditions contained herein constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
- Failure of theEMPLOYEEapp to exercise or enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.
- theEMPLOYEEapp may assign, transfer or otherwise dispose our rights under this Agreement in whole or in part at any time without notice. You many not assign this Agreement or transfer any rights to use the Service.
- By entering into this Agreement You acknowledge that You are not entering into any legal partnership or other relationship with theEMPLOYEEapp and that our relationship is and will always be one of independent contractor.
- Statute of Limitations. Regardless of any statute or law of any State or territory with respect to the timing to bring claims, You agree that any claim or cause of action to be brought against theEMPLOYEEapp under this Agreement must be file within one (1) year after such claim or cause of action arose or will forever be barred and waived.
- Any and all notices due from You to theEMPLOYEEapp under this Agreement shall only be made by email to CustomerCare@theEMPLOYEEapp.com. Similarly, theEMPLOYEEapp shall only provide notices to You at the primary email address contained on your Account.