StaffingNation Software End User License Agreement

Effective Date: April 28, 2018

PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you and WMBE Payrolling Inc. and its affiliates (“TargetCW,” “StaffingNation,” “we,” “us” or “our”). This EULA governs your use of the StaffingNation and any third party software that may be distributed therewith (collectively the “Software”). StaffingNation agrees to license the Software to you (personally and/or on behalf of your employer) (collectively “you” or “your”) only if you accept all the terms contained in this EULA. By using, copying, or distributing all or any portion of the Software, you accept and agree to be bound by all of the terms and conditions of this EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT USE THE SOFTWARE.

Your use of the Software is also subject to your agreements with us concerning your use of the StaffingNation.com website (the “Site”) and the services provided through that Site. This EULA hereby incorporates by reference all terms, conditions rules, policies and guidelines on the Site, including the StaffingNation Terms of Service. Please also see the StaffingNation Privacy Policy at https://www.tcwprivacy.com..

1. CONDITIONAL LICENSE.

1.1 License Grant:

Subject to your compliance with the terms and conditions of this EULA, StaffingNation grants you a non-exclusive, non-transferable right to use the executable code version of the Software for your use solely in connection with work you perform on or through the Site.

1.2. Restrictions on Use:

You will perform all obligations undertaken when on an engagement or hiring someone via our Site or Software. You will provide a valid payment method information when necessary and pay all sums due when due. You will not create duplicate accounts and you will not share your account with anyone. You are solely responsible for all activity that occurs under your account. You agree not to modify, display, adapt, translate, loan, distribute, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software. You may not publish, redistribute, sublicense or sell the Software or any information or material associated with the Software. You may not rent, lease or otherwise transfer your rights to the Software. You may not use the Software in any manner that could damage, disable, overburden or impair the Site, nor may you use the Software in any manner that could interfere with any other party’s use and enjoyment of the Site. You agree that you will use the Software for lawful purposes and only in compliance with all applicable laws, including but not limited to copyright and other intellectual property and privacy laws. In addition, you shall not perform, nor release the results of any testing of the Software to any third party without the prior written consent of StaffingNation. You also agree not to remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices contained within or accessed in conjunction with or through the Software.

1.3. Intellectual Property Rights:

The Software is licensed, not sold, to you for use pursuant to the terms of this EULA. All rights not expressly granted to you are reserved to StaffingNation or its licensors or third party providers. You acknowledge that StaffingNation or its licensors or third party providers own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to the Software, portions thereof, or any information or material provided through or in conjunction with the Software. Your rights to use the Software shall be limited to those expressly granted in this Section 1. All rights not expressly granted to you are reserved by StaffingNation, its licensors or third party providers. “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 other proprietary rights, and all applications, registrations, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

1.4. Copyright Infringement Claims:

Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holder’s rights. You agree that you will not use our Site or Software to infringe anyone’s intellectual property rights. We will investigate copyright infringement claims if they are reported to us to privacy@targetcw.com.

2. DISCLAIMER OF WARRANTIES.

2.1. “As Is”; No Warranty:

THE SOFTWARE IS PROVIDED BY STAFFINGNATION AND ANY OF OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS “AS IS,” WITH NO WARRANTIES WHATSOEVER. STAFFINGNATION EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPUTER PROGRAMS ARE INHERENTLY COMPLEX, AND THE SOFTWARE MAY NOT BE FREE OF ERRORS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. STAFFINGNATION DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE.

2.2. Privacy Disclaimer:

TO THE FULLEST EXTENT PERMITTED BY LAW, STAFFINGNATION DISCLAIMS LIABILITY IN THE EVENT OF THE UNAUTHORIZED ACCESS TO OR MISAPPROPRIATION OF YOUR PERSONAL INFORMATION OR PRIVATE COMMUNICATIONS BY THIRD PARTIES.

2.3. Jurisdictional Limitations:

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE OR TO THE MINIMUM PRESCRIBED BY LAW. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

2.4. Survival of Disclaimer:

The provisions of this Section 2 and of Section 3 shall survive the termination of this EULA, but this shall not imply or create any continued right to use the Software after termination of this EULA.

3. LIMITATION OF LIABILITY.

3.1. Limitation of Liability:

IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL STAFFINGNATION, OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF THE SOFTWARE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (EVEN IF STAFFINGNATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE, FROM THE PERFORMANCE OR MISPERFORMANCE OF THE SOFTWARE, FROM INABILITY TO USE THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NO CLAIM, SUIT OR ACTION MAY BE BROUGHT AGAINST US AFTER SIX MONTHS FROM THE UNDERLYING CAUSE OF ACTION.

3.2. Damages Cap:

EXCEPT AS LIMITED BY APPLICABLE LAW, REGARDLESS OF THE BASIS FOR YOUR CLAIM, STAFFINGNATION’S, LICENSORS’ AND THIRD-PARTY PROVIDERS’ TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE AMOUNT OF FEES PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING PROVISIONS SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR MONETARY DAMAGES IN RESPECT OF ANY BREACH OF OR DEFAULT UNDER THIS AGREEMENT BY STAFFINGNATION.

4. INDEMNIFICATION.

To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless StaffingNation and its subsidiaries, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents, from any claim or demand made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the Software or its features, any alleged violation of these terms, or any alleged violation of any applicable law or regulation. StaffingNation reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, but doing so shall not excuse your indemnity obligations.

5. PRIVACY AND SECURITY.

Although we have taken reasonable measures to prevent unauthorized persons from gaining access to your computer via the Software, we cannot foresee or control the actions of third parties. Therefore, use of the Software could make you vulnerable to security breaches that you might not otherwise face and could result in the loss of your privacy or property. You agree that StaffingNation is not liable to you for security breaches resulting from your use of the Software or otherwise. For more information on privacy and security please visit www.tcwprivacy.com.

6. NO NOTICE OF UPDATES.

StaffingNation reserves the right to modify or change this EULA from time to time without notice to You. The latest version will be available on the Site. The effective date of the latest updates is at the top of this page. StaffingNation also may update or modify the Software from time to time at its discretion. Your election to continue use of the Software after the date of posting of these modifications to the EULA or to the Software constitutes acceptance of those modifications. If you do not agree with the modifications, do not use the Software.

7. EXPORT CONTROLS.

You are responsible for complying with trade regulations and both foreign and domestic laws. You acknowledge that the Software or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or on the U.S. Commerce Department’s Denied Party or Entity List; and (c) you will not export or re-export the Software to any prohibited country, person, end-user or entity specified by U.S. Export Laws.

8. TERM AND TERMINATION.

8.1. Termination:

This EULA is effective as soon as you use or distribute the Software and shall continue until it is terminated by StaffingNation or you, as provided for under the terms of this Section. Unless otherwise agreed to in writing with us, either you or we may terminate the contractual agreement represented by this EULA at any time upon notice to the other party. This EULA, including without limitation your right to the Software as specified in Section 1, terminates immediately and without notice from StaffingNation if you fail to comply with any of its provisions. Upon termination you shall immediately discontinue use of Software and attempts to use under other accounts or aliases.

8.2. Survival of Termination:

Sections 1.3, 2, 3, 4, 7, 8.2 and 9 of these terms will survive any termination of this EULA. The termination of this EULA does not limit StaffingNation’s other rights it may have by law.

9. MISCELLANEOUS PROVISIONS.

9.1. Severance. Waiver:

If for any reason a court of competent jurisdiction finds any provision or portion of this EULA to be unenforceable, it shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force. Enforcement of this EULA is solely in our discretion, and failure to enforce the EULA in some instances does not constitute a waiver of our right to enforce it in other instances.

9.2. Audit:

You agree that, on StaffingNation’s request, you will certify in writing your compliance with the terms of this EULA.

9.3. Assignment:

You may not assign this EULA or sublicense, assign, transfer or delegate any right or duty hereunder, without the prior written consent of StaffingNation, at our sole discretion. Notwithstanding the foregoing, StaffingNation may assign or transfer this EULA or any rights granted hereunder without your prior consent. This EULA is binding on and will inure to the benefit of the parties successors and permitted assigns.

9.4. Entire Agreement:

This EULA and the terms expressly incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

9.5. Governing Law & Jurisdiction:

This EULA and any action related thereto will be governed by the laws of California. Any controversy or claim arising out of or relating to this EULA, or the breach thereof, shall be settled by courts located in San Diego, CA.

9.6. Remedies for Breach of This EULA:

We may take any action that we deem necessary or appropriate if we believe that any user violates this EULA, infringes any intellectual property right, privacy right or confidentiality principles, threatens anybody’s personal safety or uses offensive language. We may: (i) disclose user’s identity to law enforcement agencies, to any third party claiming violation of their intellectual property or privacy right, (ii) block user’s IP address, notify user’s Internet Service Provider, (iii) suspend or terminate any account on our Software and Site (iv) moderate any content submitted to us, (v) take any other action provided for in this EULA or available under equity or law.

9.7. Electronic Communications:

You agree that all notices or other communications regarding your account and/or your use of the Site or Software ("Communications"), may be provided to you electronically and you agree to receive all Communications from us in electronic form. You may print a copy of any Communications and retain it for your records. All electronic Communications will be considered just as legally binding as if they were in paper form. You may revoke your consent to receive Communications electronically, but if you revoke your consent to receive Communications electronically, we reserve the right to terminate your right to use our Site/Service.

9.8. Relationship of the Parties:

You and us are independent contractors to each other. There is no joint venture, employment or similar relationship.

9.9. Hyperlinks:

You may link to our Site, as long as this is done in a fair way that does not negatively affect our reputation or business and does not suggest any form of association where there is none. We reserve the right to request that you withdraw any link and you agree to cooperate with us in causing any unauthorized framing or linking to terminate immediately.

9.10. Prevailing Language:

In the event of any discrepancy between the English original version of this EULA and any foreign language translation, the English version prevails.

9.11. Contact Us

Please submit your inquiries to privacy@targetcw.com.