Elite Business Ventures, Inc. (“EBV”), a California Corporation, principally located at 13700 Stowe Drive, Poway, CA 92064, has developed an online service, (“ePosterService”) that helps employers to address ongoing compliance with labor law poster requirements for their remote workers and non-traditional work sites. EBV makes ePosterService available to consumers directly through its web site(s) (“Sites”), or indirectly through its affiliate partners (“Partners”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING TO INDICATE ACCEPTANCE OR BY USING THE EPOSTERSERVICE PLATFORM, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO, THE TERMS OF THIS AGREEMENT. If You do not accept this Agreement, do not click to “ACCEPT” the terms and conditions, and do not use or access the ePosterService Platform.
- “Authorized User” means a person employed or engaged by Customer and authorized by Customer to use the ePosterService Platform for Customer’s benefit in accordance with this Agreement, and to whom a password-protected account for use of the ePosterService Platform has been created.
- “Allocated Seats” means the requested number of user accounts to be made available for use by Customer, as requested by the Customer upon registration, or through subscription management features on the ePosterService Platform. It is the Customer responsibility to assign Authorized Users into Allocated Seats.
- “Confidential Information” means all information disclosed or made available by one party to the other in connection with this Agreement. EBV’s Confidential Information includes without limitation the features and functions of the ePosterService Platform that are not available to the general public, all content within the ePosterService Platform, product plans, software and software documentation and specifications, the commercial terms (including pricing) of this Agreement and the Order Form, and all ePosterService Platform audit, performance and security test results (whether conducted by EBV or Customer or any third party). Customer’s Confidential Information includes without limitation Customer Data.
- “Customer” means the entity which, or person who, has entered into an agreement with EBV to purchase and subscribe to ePosterService.
- “Customer Subscription” means the paid subscription as a result of an “Order Form” submitted by the Customer to Elite, or an “Order Form” submitted by Customer to a Partner, or as authorized by a Partner, or as included as part of another paid subscription by Elite.
- “Customer Data” means all data and information provided, submitted and/or otherwise inputted into the ePosterService Platform by Customer and/or Authorized Users.
- “ePosterService Platform” means EBV’s proprietary platform product comprising of hardware, software, content, information and hosted services, and as made available by EBV to Customer pursuant to an Order Form, and including all upgrades, updates, and modifications thereto, and all content therein other than Customer Data.
- “Standard Labor Law Notices” means the labor law notices which are mandatory for employers to provide to employees per applicable labor laws AND apply to ALL businesses regardless of their size (# of employees or revenue), or industry.
- “Specialized Labor Law Notices” means the labor law notices which may or may not be mandatory for employers to provide to employees per applicable labor laws AND apply only to specific businesses based on their size (# of employees or revenue), industry, or other specific company designation.
- “Order Form” means the written (including digital) order form entered into between EBV or its affiliate, or its Partner, and Customer, identifying the ePosterService Platform to be made available to Customer, the Subscription Term, the fees payable by Customer to EBV or to the Partner, and such other terms as EBV may require.
- “Subscription Term” means the period of time during which EBV or its affiliate will make the ePosterService Platform available to Customer pursuant to the Order Form. The Subscription Term may include a trial period.
- Usage Rights and Restrictions.
- End User’s Rights. Subject to the terms of this Agreement (Including the Order Form), EBV grants You, as End User, a limited, non-transferable, non-exclusive, non-sublicensable, personal right to, at your own cost and expense, access and use the ePosterService Platform and to view the content therein specifically intended for End Users, for as long as the “Customer Subscription” remains active, and as long as the Customer has not de-activated End User’s access. If You, an End User, have obtained access to the ePosterService Platform without connection to a paid Customer Subscription, and You are using the ePosterService for free, EBV may revoke access an End User’s Rights at any time with or without notice. End User acknowledges that nothing herein obligates EBV to deliver or otherwise make available any copies of computer programs or code from the ePosterService Platform, whether in object code or source code form. End User will use the ePosterService Platform in accordance with all applicable laws.
- General Restrictions. END USER MAY NOT DOWNLOAD OR PRINT CONTENT FROM THE EBV PLATFORM WITH INTENT TO DISTRIBUTE OR SHARE BEYOND THE INTENDED RECIPIENT, AND MAY NOT DISTRIBUTE SUCH CONTENT WITH OTHERS. End User shall not, directly or indirectly: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share or otherwise commercially use or make the ePosterService Platform, or content provided by the ePosterService Platform, available to any third party, in each case other than as expressly permitted herein; (ii) make derivative works of, disassemble, reverse compile or reverse engineer any part of the ePosterService Platform or its documentation, or access the ePosterService Platform or its documentation to build a similar or competitive product or service, or to create the source code or structural framework of the ePosterService Platform; (iii) use the ePosterService Platform to send spam or otherwise send content in violation of applicable laws; or (iv) use the ePosterService Platform to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material. End User may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings within the ePosterService Platform or ePosterService Platform documentation. In addition, End User shall not, directly or indirectly: (a) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the ePosterService Platform, (b) harvest or collect information about or from other users of the ePosterService Platform (c) probe, scan or test the vulnerability of the ePosterService Platform, nor breach the security or authentication measures on the ePosterService Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the ePosterService Platform (d) attempt to gain unauthorized access to the ePosterService Platform or its related systems or networks, (e) use the ePosterService Platform for benchmarking purposes, or for any illegal purpose, or (f) create Internet “links” to the ePosterService Platform or “frame” or “mirror” any content therein.
- Usage Limitations. Login credentials are personal and unique to each individual End User and may not be shared or used by any other person. Each person logging into the ePosterService Platform must have their own unique user id and login credentials.
- Security. End User shall ensure the security of its account ID, password, and connectivity with the ePosterService Platform. If any administrative account ID or password is stolen or otherwise compromised, End User shall immediately change the password and inform EBV of the compromise. Customer acknowledges that responsibility for all Customer Data, text, information, messages, and other material submitted by its users to the ePosterService Platform lies solely with Customer. Customer is solely responsible for the integrity and quality of Customer Data, and for maintaining an appropriate backup thereof.
- Changes to the ePosterService Platform. EBV may make upgrades and improvements to the ePosterService Platform from time to time. EBV may also modify or delete any features of the ePosterService Platform, and may substitute old features with new features, as may be necessary to meet applicable laws or industry-standard requirements or demands or requirements of third party service providers, or otherwise in its sole discretion.
- Suspension. EBV may suspend provision of the ePosterService Platform at any time, with or without notice to Customer and without liability, for any reason.
- Feedback. End User hereby assigns to EBV all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by End User to EBV relating to the ePosterService Platform (excluding End User Data) (collectively, “Feedback”), and EBV will have the unrestricted right to use and disclose Feedback into and in connection EBV products and services, without duty or obligation to End User, and End User acknowledges that any improvements, modifications and changes arising from or in connection with the its contribution to the ePosterService Platform are the exclusive property of EBV; provided, however, that EBV will not use End User’s name in connection with any such use or disclosure. Feedback constitutes EBV’s Confidential Information.
- Third Party Links. Links to other websites, if any, may be provided within the ePosterService Platform for convenience only, and by accessing such links End User agrees that EBV has no liability to End User for use of or reliance upon such links. EBV does not represent or warrant that links are accurate, complete, reliable, useful, timely or current. EBV has not reviewed all of the links and is not responsible for the contents of any linked site. The inclusion of any link does not imply endorsement by EBV of the site. Use of any such linked web site is at End User’s own risk.
Ownership. End User shall retain all right, title and interest to End User’s own personal information. EBV shall retain all right, title and interest in and to (i) the ePosterService Platform, the ePosterService Platform documentation and content, and all improvements, modifications and/or enhancements thereto (regardless of the source of inspiration for any such enhancement or modification and regardless of whether End User has provided input regarding such modifications and/or enhancements), and all inventions or discoveries embodied within or covered by the ePosterService Platform; (ii) all proprietary education or training content provided by EBV; and (iii) materials related to EBV’s processes and methodologies. No right, license, title or interest is granted by EBV to End User to the ePosterService Platform or any other technology owned or controlled by EBV, or in or to any intellectual property rights relating to the foregoing (including without limitation patent rights), whether by implication or estoppel or otherwise, and EBV reserves all rights not expressly granted herein. Products acquired for use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS” as defined in DFARS 252.227-7013 and FAR 52.227-19.
Data. Notwithstanding any other term of this Agreement, EBV may develop, use and disclose, and shall retain all right, title and interest in and to, all transactional, use and performance data related to use of the ePosterService Platform, which may include aggregated and anonymized or statistical data based upon Authorized Users’ use of the ePosterService Platform and End User Data, provided that EBV may not disclose any of such data to the extent he End User may be identified therefrom.
Disclaimer of Warranties; No Legal Advice.
- GENERAL DISCLAIMER. EBV AND ITS AFFILIATES DISCLAIM AND EXCLUDE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THE EBV PLATFORM AND ALL ELEMENTS THEREOF (INCLUDING WITHOUT LIMITATION SOFTWARE AND HOSTED SERVICES) IS MADE AVAILABLE HEREUNDER “AS IS” AND WITHOUT WARRANTY. EBV AND ITS AFFILIATES DO NOT GUARANTEE OR WARRANT THAT ANY ELEMENT OF THE EBV PLATFORM IS ERROR- OR DEFECT-FREE OR UNINTERRUPTED, OR THAT ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, AND EBV AND ITS AFFILIATES ARE NOT OBLIGATED TO PROVIDE TECHNICAL SUPPORT OR MAINTENANCE WITH RESPECT TO THE EBV PLATFORM. ALTHOUGH EBV USES COMMERCIALLY REASONABLE SECURITY MEASURES, EBV AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE EBV PLATFORM IS COMPLETELY SECURE, AND CUSTOMER ACKNOWLEDGES THAT THE EBV PLATFORM AND CUSTOMER DATA MAY BE ACCESSED OR USED BY THIRD PARTIES DESPITE SUCH MEASURES.
- Documents. Some documents that are accessible in the ePosterService Platform may be have been added by Customer, or allow Customer to customize the document for its own use, including but not limited to handbooks, letters, and policies. EBV IS NOT LIABLE OR RESPONSIBLE FOR ANY CUSTOMER-PROVIDED DOCUMENT, OR FOR CUSTOMER’S MODIFICATION OF EBV PLATFORM CONTENT.
- NO LEGAL ADVICE. THE EBV PLATFORM IS PROVIDED FOR INFORMATION PURPOSES ONLY AND IS NOT INTENDED TO BE A DEFINITIVE OR COMPLETE STATEMENT OF THE LAW OR LEGAL ADVICE ON ANY GIVEN SUBJECT. NEITHER EBV NOR ITS AFFILIATES ARE A LICENSED LAW FIRM OR ATTORNEY AND THE EBV PLATFORM AND CONTENT DOES NOT CONSTITUTE THE PRACTICE OF LAW NOR THE PROVISION OF LEGAL ADVICE, AND IS NOT INTENDED TO REPLACE LEGAL ADVICE. NEITHER EBV NOR ITS AFFILIATES GUARANTEE OR GIVE ANY WARRANTY, REPRESENTATION OR UNDERTAKING (WHETHER EXPRESS OR IMPLIED) AS TO THE ACCURACY, CURRENCY OR COMPLETENESS OF THE CONTENT OF THE EBV PLATFORM, OR THAT USE OF THE PLATFORM AND THE CONTENT WILL ENSURE COMPLIANCE WITH EMPLOYMENT OR LABOR LAW.
End User acknowledges that EBV and its affiliates do not provide legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which End User uses the ePosterService Platform, including those related to data privacy or employment or labor matters. End User acknowledges that the ePosterService Platform may be used in ways that do and do not comply with such laws, rules or regulations.
The purpose of the ePosterService Platform, and all other features and functionality of the ePosterService Platform, is to provide United States State and Federal labor law notices to Authorized users and provide Customer’s administrative Authorized Users the ability to manage the use of the ePosterService Platform by Authorized Users. End User must consult an attorney for all legal matters relating to labor and employment law compliance needs. End User must not act or rely on any information provided by the ePosterService Platform without seeking the advice of an attorney licensed to practice law in the applicable jurisdiction.
End User understands and agrees that online access to digital versions of labor law postings is not a substitute for displaying full-size postings in areas that are accessible to all employees at your physical locations, and that electronic posting does not satisfy federal, state or local workplace posting obligations.
End User acknowledges that every business is different, and circumstances frequently vary and may affect the proper course of action that must be taken concerning employment and human resources-related issues.
End User acknowledges that it is Customer’s responsibility to ensure that Authorized Users added to the ePosterService Platform promptly login to the ePosterService Platform upon notification, read the notices, and acknowledge receipt to comply with all laws and regulations. The ePosterService Platform relies on accurate email and physical location information such as address or zip code or both to determine which notices apply to each Authorized User. It is Customer’s responsibility to ensure that each Authorized User has the correct, accurate, and most appropriate (given applicable laws and statutes), work location and email address entered into the ePosterService Platform. It is Customer’s responsibility to ensure that Authorized Users receive the notifications and are using the ePosterService Platform to view and acknowledge the notices.
End User will defend, indemnify and hold EBV and its affiliates and its and their officers, directors, employees and agents, and EBV’s licensors and third party vendors and suppliers, from and against any and all liabilities, losses, damages, claims, allegations, actions, demands, fines, penalties, costs and expenses (including without limitation reasonable attorneys’ fees) (“Losses”) arising out of or relating to any third-party’s claim made in connection with (i) End User’s actual or alleged misuse of the ePosterService Platform; or (ii) End User’s breach of this Agreement.
- Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EBV NOR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER OR AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, DATA OR DATA USE, OR FOR OTHER ECONOMIC DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EBV’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, ON THE BASIS OF ANY THEORY OF LIABILITY OR CAUSE OF ACTION, SHALL NOT EXCEED THE LESSER OF AMOUNTS PAID BY END USER TO EBV OR $1,000.00 (ONE THOUSAND DOLLARS).
End User and EBV each acknowledge that the foregoing disclaimers and limitations of liability reflect the allocation of risk set forth in this Agreement as agreed by both of them and that they would not enter into this Agreement without these limitations on their liability.
EBV AND ITS AFFILIATES ARE NOT LIABLE FOR FINES, PENALTIES, DAMAGES OR LOSSES RELATING TO OR ARISING OUT OF CUSTOMER’S OR AUTHORIZED USERS’ FAILURE TO PROMPTLY VIEW AND ACKNOWLEDGE LABOR LAW NOTICES OR TO COMPLY WITH THE REQUIREMENTS OF THIS AGREEMENT.
- Governing Law.
This Agreement shall be interpreted and construed in accordance with the laws of California without regard to conflict of laws provisions.
Arbitration. EBV and End User agree to first attempt to negotiate any dispute (except those expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will begin upon written notice from one party to the other. If the parties cannot come to a resolution within thirty (30) days of commencement of informal negotiations, either party may choose to have the dispute (except those expressly excluded below) finally and exclusively resolved by binding arbitration in San Diego, California. This election to arbitrate is final and binding. The Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS (available on the JAMS website, www.jamsadr.com) will govern the binding arbitration. The Federal Arbitration Act determines whether a dispute is subject to arbitration. Arbitration fees and the parties’ share of arbitrator compensation will be governed by the Rules. EBV and End User agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Program or this Agreement must be filed within 100-days after such claim or cause of action arose or will be forever barred. The arbitration shall occur within ninety (90) days from the date of the initial arbitration demand. The parties shall cooperate to ensure that the arbitration process is completed within the ninety (90) day period. The parties shall cooperate in exchanging and expediting discovery as part of the arbitration process. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will decide in writing but need not provide a statement of reasons unless requested by a party. The written decision of the arbitrator (which will provide for the payment of costs) will be absolutely binding and conclusive and not subject to judicial review, and may be entered and enforced in any court of proper jurisdiction, either as a judgment of law or a decree in equity, as circumstances may indicate. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, both parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Customer further agrees that Company shall be entitled, in addition to damages, unpaid fees, costs and interest, to recover the costs of the arbitration proceedings as well as any collection proceedings, as necessary, including reasonable attorneys’ fees. In the event it shall be necessary to obtain a court order confirming any such arbitral award, or to otherwise bring a court proceeding, Customer shall submit to the jurisdiction of any court of competent jurisdiction sitting in San Diego, California. This arbitration provision remains in full force and effect notwithstanding the nature of any claim or defense related to it. EBV and End User each waives any claim that JAMS does not have jurisdiction or is an inconvenient forum. Except as otherwise provided in this Agreement, both parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. CUSTOMER UNDERSTANDS THAT ABSENT THIS SECTION 9, CUSTOMER WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL, AND SO CUSTOMER HEREBY WAIVES THE RIGHT TO A JURY TRIAL. BOTH PARTIES AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN THE PARTIES. TO THE FULL EXTENT PERMITTED BY LAW: (1) NO ARBITRATION WILL BE JOINED WITH ANY OTHER; (2) CUSTOMER WAIVES ANY RIGHT TO COMMENCE A CLASS-ACTION SUIT; AND (3) NO DISPUTE MAY BE BROUGHT IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. If a dispute arises between the parties for which monetary relief is inadequate and where a party may suffer irreparable harm in the absence of an appropriate remedy, the injured party may apply to any court of competent jurisdiction for equitable relief, including without limitation a temporary restraining order or injunction, without proving damages or posting a bond.
- Limited Guarantee. Subject to the terms of this Agreement, EBV will ensure that the ePosterService Platform will reflect the latest and most up-to-date state and federal Standard Labor Law Notices during the Subscription Term (“Limited Guarantee”).
If EBV’s violation of the Limited Guarantee causes Customer to pay a federal or state levied fine, then EBV will reimburse Customer for the fine, according to the ePosterService Limited Guarantee Terms and Conditions available at www.posterelite.com/guarantee.
You agree to and accept the Limited Guarantee Terms and Conditions. The Limited Guarantee and its Terms and Conditions may be amended, modified, or discontinued in EBV’s sole discretion at any time hereto by providing notice to Customer of the change.
THE FOREGOING REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND EBV’S SOLE LIABILITY, FOR VIOLATION OF THE LIMITED GUARANTEE.
- Export Control Laws. Each party shall comply with the export control laws of the United States which are applicable to the ePosterService Platform, and which may prohibit use of the ePosterService Platform in certain sanctioned or embargoed countries.
- Waiver, Entire Agreement and Amendments, Representations, Severability and Purchase Orders. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter. This Agreement encompasses the entire agreement between End User and EBV with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. This Agreement may not be altered, amended or modified except by written instrument signed by the duly authorized representatives of both parties, or as updated by EBV pursuant to the terms of this Agreement. End User acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation (whether innocent or negligent) assurance or warranty (whether or not in writing) of EBV, an EBV affiliate or any other person (whether or not party to this Agreement) other than as expressly set out in the Agreement. If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.
- Assignment. End User may not transfer or assign this Agreement, including by merger or operation of law, without EBV’s prior written consent, and any such attempted assignment shall be void and of no force or effect. EBV may assign this Agreement in its discretion.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement
PLEASE PRINT THIS SERVICES AGREEMENT FOR YOUR RECORDS.