Services Agreement

Last updated: January 27th, 2021

1. Services and Support.

1.1 Assembled, Inc. (“Assembled”) provides its cloud-based workforce management platform and services, which may include software, applications and/or hosted subscription services (collectively “Service(s)”) to you (“Customer”) pursuant to this Services Agreement (the “Agreement”). This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.

1.2 Assembled reserves the right to change or modify portions of this Agreement at any time. If Assembled does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Assembled will also notify Customer, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Customer’s continued use of the Service after the date any such changes become effective constitutes acceptance of the new Agreement.

1.3 Subject to the terms of this Agreement, Assembled will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms provided herein, and hereby grants Customer a non-exclusive right to access and use the Software (as defined below) and Services.

1.4 As part of the registration process, Customer will identify an administrative user name and password for Customer’s Assembled account. Assembled reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer will (i) be responsible for all use of the Services under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Assembled promptly of any such unauthorized access or use.

1.5 Subject to the terms hereof, Assembled will provide Customer with reasonable technical support services in accordance with Assembled’s standard practice.
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2. Restrictions and Responsibilities.

2.1 Customer will only use the Services as expressly permitted herein and in the applicable Order Form and agrees that it 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 any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Assembled 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.

2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Although Assembled has no obligation to monitor Customer’s use of the Services, Assembled may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3. Confidentiality; Proprietary Rights.

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Assembled includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Assembled to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party.

3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Assembled shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 Notwithstanding anything to the contrary, Assembled shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding information concerning Customer Data and data derived therefrom), and  Assembled will be permitted (during and after the term hereof) to (i) use such information and data, in aggregated and anonymized form only, to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services. No rights or licenses are granted except as expressly set forth herein. As used herein, the term “aggregated” means data that is combined with data of other Assembled customers such that no data or information concerning Customer or Customer’s use of the Services can be identified or derived; and the term “anonymized” means data that does not identify, and cannot be used in combination with other data to identify, Customer or any individual.

3.4 Customer may from time to time provide Assembled suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services. Assembled will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Assembled will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4. Payment of Fees.

4.1 Customer will pay Assembled the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  Assembled reserves the right to change theFees or applicable charges and to institute new charges and Fees at the end of the then‑current renewal Subscription Term, upon thirty (30) days prior notice to Customer (which may be sent by email).  Assembled will bill through an invoice.  Full payment for invoices issued in any given month must be received by Assembled thirty (30) days after the mailing date of the invoice.  If Customer believes that Assembled has billed Customer incorrectly, Customer must contact Assembled no later than sixty (60) days after receiving the invoice in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Assembled’s customer support department. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and fees paid are non-refundable.

4.2 Unpaid undisputed amounts 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.

4.3 Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Assembled’s net income

5. Term and Termination.

5.1 Subject to earlier termination as provided below, the term of this Agreement will commence on the Effective Date and will continue as specified in your order (“SubscriptionTerm”). The Subscription Term will automatically renew for successive twelve(12) month periods, unless either party provides the other party with notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach.  Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Assembled will make all Customer Data available to Customer for electronic retrieval in a form reasonably acceptable to Customer for a period of thirty (30) days. Assembled shall delete storedCustomer Data within sixty (60) days of termination of this Agreement.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. Warranty and Disclaimer.

6.1 Assembled shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Assembled or by third-party providers, or because of other causes beyond Assembled’s reasonable control, but Assembled shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  

EXCEPT AS EXPRESSLY SET FORTH HEREIN, ASSEMBLED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES ASSEMBLED MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND ASSEMBLED DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. Indemnity.

7.1 Assembled shall defend Customer claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by third parties alleging that use of the Services as permitted hereunder results in the infringement of any United States patent or any copyright or misappropriation of any trade secret, and Assembled will indemnify Customer for any damages finally award against (or any settlement approved by Assembled) Customer in connection with such Claim; provided that Assembled (i) is promptly notified of any such claim, (ii) will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Assembled may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability), and (iii) is given reasonable assistance from Customer in connection herewith. The foregoing obligations concerning Claims do not apply is such Claim is caused in whole or in part by (1) Assembled’ compliance with designs, guidelines, or plans made in whole or in part in accordance with Customer specifications, (2) modifications to the Services by any party other than Assembled without Assembled express consent, (3) Customer combining the Services with other products, processes or materials where the alleged infringement relates to such combination, (4) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (5) Customer’s use of the Service not in accordance with this Agreement (clauses (1) through (5), “Excluded Claims”). If the use of the Services by Customer has become, or in Assembled’s opinion is likely to become, the subject of any claim of infringement, Assembled may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

7.2 Customer will defend Assembled against any Claim made or brought against Assembled by a third party arising out of the Excluded Claims, and Customer will indemnify Assembled for any damages finally awarded against (or any approved settlement) assembled in connection with any such Claim; provided that (a) Assembled will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Assembled’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases assembled of all liability) and (c) Assembled reasonably cooperates with Customer in connection therewith.The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Site or Content by the Government constitutes acknowledgement of our proprietary rights in the Site and Content.

8. Limitation of Liability.

8.1 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS (SECTION 7), OR A BREACH OF CONFIDENTIALITY (SECTION 3) OR THE LICENSE RESTRICTIONS (SECTION 2.1), UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

9. Miscellaneous.

9.1 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

9.2 Export Control. Customer 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.

9.3 Unenforceability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9.5 Assignment. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

9.6 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

9.7 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Assembled in any respect whatsoever.

9.8 Notice. All notices under this Agreement 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.  

9.9 Governing Law. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

10. Service Level Terms

The Services shall be available 99.5%, measured monthly, excluding scheduled maintenance.  If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.  Further, any down time resulting from outages of third party connections or utilities or other reasons beyond Assembled’s control will also be excluded from any such calculation.Customer's sole and exclusive remedy, and Assembled's entire liability, in connection with Service availability shall be that for each period of down time lasting longer than one hour, Assembled will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; .  Downtime shall begin to accrue as soon as downtime is taking place, and continues until the availability of the Services is restored.  In order to receive downtime credit, Customer must notify Assembled in writing within 24 hours from the time of downtime (which may be by email), and failure to provide such notice will forfeit the right to receive downtime credit.  Assembled will only apply a credit to the month in which the incident occurred.