Terms of service

Last modified:  June, 2023

The following terms of service, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service”), govern your access to and use of any products and services made available to you (the “Customer”) by HR BENCH, INC. (the “HR Bench”) using the website www.hrbench.com (the “Website”) and any other products or services provided to Customer by HR Bench (collectively, the “Services”).  

1. Initial Term. The initial term of Customer’s subscription for the Services will be as set forth in the Subscription Order Form (the “Initial Term”).  Customer’s subscription shall be automatically renewed upon the expiration of the Initial Term for an additional twelve (12) month period (a “Renewal Term,” and together with the Initial Term and any other Renewal Terms, the “Term”) unless the Customer notifies HR Bench in writing at least sixty (60) calendar days prior to the expiration of the Initial Term of Customer’s desire to terminate the Agreement.   

2. Product Description. The Services ordered by the Customer are as set forth in the Subscription Order Form.

3. Payment Terms. HR Bench will invoice Customer for the annual license fee set on the Subscription Order Form (the “Annual License Fee”) for the upcoming subscription year immediately prior to or in the beginning of such subscription year. Customer shall pay any undisputed Annual License Fee and any undisputed System Set-Up Services Fees or Professional Services Fees (each as defined below) net thirty (30)-days from invoice date. Reasonable travel and out-of-pocket expenses incurred by HR Bench on Customer’s behalf (including, without limitation, to perform the Professional Services or the System Set-Up Services) will be billed separately, as incurred. All undisputed fees are expressed in U.S. dollars, due net thirty (30)-days from the invoice date and include no taxes unless a separate line item is added for taxes on the invoice. If Customer is a tax exempt organization, HR Bench requires a tax exempt certificate at the time of execution of this Agreement in order to exclude any applicable taxes from Customer’s invoice. Overdue payments shall bear interest at the lesser of twelve percent (12%) per annum or the maximum rate allowed under applicable law.

4. License Grant. HR Bench grants to Customer, and Customer accepts, a license to use and access the Services and any proprietary HR Bench data licensed by or made available to Customer via on-line software, including without limitation the data and information made available through the Services (collectively, “HR Bench Data”), and all updates, upgrades and improvements released generally by HR Bench during the Term. This license is limited, worldwide, nonexclusive, non-transferable, non-sublicensable and subject to this Agreement (including, without limitation, Section 6 below).

5. HR Bench Accounts & Authorized Users. Customer will receive the number of HR Bench accounts indicated on the Subscription Order Form (“Accounts”). Each Account will have one password that will permit one User (as defined below) to access HR Bench and to store one set of system preferences and data search-lists subject to the terms of this Agreement. Customer agrees to implement reasonable controls to ensure that its use does not exceed the maximum number of Accounts, Users, and FTE’s (as defined below) served. HR Bench and the related HR Bench Data may be used only by Customer’s directors, officers, employees and onsite contractors given passwords by Customer (“Users”). Customer agrees to provide HR Bench with the names and email addresses of all Users upon HR Bench request. Customer acknowledges that HR Bench may monitor Customer’s use of the Services to ensure that it remains in compliance with this Agreement for the duration of the Term. Customer shall be responsible for all actions of a User with respect to any of the Services and any breach by a User of this Agreement shall constitute a breach by Customer. For purposes hereof, “FTE” means a full time equivalent employee, meaning one employee that works 40 hours a week or two employee that in the aggregate work 40 hours per week.

6. Usage Restrictions. Users may access the Services and HR Bench Data only in connection with the internal operations of Customer’s business. Users may not: (a) reverse engineer, decompile or disassemble HR Bench Data, any HR Bench software, code or any of their respective elements (“HR Bench IP”); (b) copy, alter, modify, adapt, translate or create derivative works from HR Bench IP or any portion of thereof; (c) make any of the Services or HR Bench IP available for third-party use; or (d) remove or alter any copyright, trademark or other proprietary notices from HR Bench IP. Customer agrees that, during the Term and for two years afterward, it will not engage in the business of selling compensation planning software, and/or compensation data of any kind and will not solicit for employment any HR Bench employee or consultant or encourage any HR Bench employee or consultant to terminate his or her employment with HR Bench.

7. System Support and System Set-Up and Professional Services. During the Term, HR Bench will provide, free of charge, phone, email and web-based support and training to Customer from 9:00 AM (EST) until 8:00 PM (EST), Monday through Friday (except for HR Bench recognized holidays). Customer will be responsible for fielding and consolidating initial support requests, verifying the existence of software issues, answering software-use questions, and managing system-administration functions. All on-site professional and/or consulting services (the “On-site Services”) shall be provided to Customer at a fee of $2,500 per day (including travel days), per HR Bench employee, plus all reasonable travel expenses. During the Term, and as a part of the Services Ordered in the Subscription Order Form, HR Bench agrees to configure the HR Bench software necessary for the Services (the “System Set-Up Services”) and provide customer support for the Services (the “Professional Services”). If Customer fails to notify HR Bench in writing of its rejection of the Professional Services or System Set-Up Services within ten business days after such services are performed, the Professional Services and System Set-Up Services will be deemed accepted. The Customer’s sole remedy hereunder with respect to any nonconforming services that have not been accepted shall be to require HR Bench to re-deliver such non-conforming services.

8. Termination. Either party may terminate this Agreement before the end of the Initial Term or any subsequent Renewal Term if the other party has breached a material term of the Agreement, and the breaching party has failed to remedy such breach within thirty (30) calendar days following written notice from the non-breaching party. If HR Bench commits a material breach and Customer terminates the Agreement as a result of such material breach, HR Bench will refund an amount equal to one-twelfth of the Annual License Fee paid by Customer for the subscription year in which the termination occurs, multiplied by the number of full calendar months remaining in that subscription year. Upon any termination of this Agreement, Customer shall immediately cease all use of the Services and HR Bench shall revoke all passwords and access to the Services. In addition, if Customer fails to make any payment hereunder, HR Bench may immediately suspend Customer’s access to the Services; such suspension will not modify these Terms of Service.

9. Warranties. Each party represents and warrants to the other party that (i) it has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii) the performance, execution and delivery of this Agreement does not violate any of such party’s agreements, organizational documents or obligations or any applicable law (including those governing privacy such as the Massachusetts data security regulations); and (iii) it will comply with protocols for notification in case of data privacy breach. Customer represents to HR Bench that the Customer Data (as defined in Section 11) does not and will not violate the intellectual property rights of any third party. HR Bench warrants that the HR Bench’s Services will materially conform to the descriptions of the Services provided by HR Bench for such services, provided that such Services are used by Customer in the manner intended and as authorized by this Agreement, and further provided that HR Bench makes no warranties regarding HR Bench performance or conformance to such specifications if used by Customer in a manner other than as intended and as authorized by this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS OF QUALITY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HR Bench DOES NOT WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS, OR TIMELINESS OF THE HR BENCH SERVICES OR THE HR BENCH DATA. To the extent any warranty claim is not waived, HR Bench’s sole and exclusive obligation for warranty claims shall be, at HR Bench’s option, to make the HR Bench Services operate as warranted, or if HR Bench is unable to do so, to terminate the Agreement and return one-twelfth of the Annual License Fee actually paid by Customer for the subscription year in which termination occurs, multiplied by the number of full calendar months remaining in that subscription year.

10. Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 6, 11, 12, 13 AND 14, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES EXCEED THE TOTAL ANNUAL FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION TERM TO WHICH THE CLAIM RELATES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 6, 11, 12, 13 AND 14, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY IN CONTRACT, TORT, OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HR BENCH HAVE ANY LIABILITY FOR CLAIMS RELATING TO BUSINESS DECISIONS MADE BY CUSTOMER IN RELIANCE UPON ANY OF THE SERVICES.

11. Intellectual Property Ownership. Customer understands and agrees that the HR Bench IP (including, without limitation, the HR Bench Data) is the property of HR Bench and is protected by United States and international intellectual property laws and treaties. HR Bench retains all right, title and interest in the HR Bench IP (including, without limitation, the HR Bench Data). Except as otherwise expressly granted in this Agreement, no license, right or interest in any HR Bench IP is granted to Customer hereunder. The Services and any modifications to the Services (including without limitation any inventions, creations, and improvements conceived) made or provided by HR Bench pursuant to the Agreement, whether alone or with any contribution from Customer or its personnel, are HR Bench intellectual property. To the extent Customer or its personnel may acquire any right, title or interest therein by operation of law, Customer irrevocably assigns all such right, title and interest exclusively to HR Bench. Any employee data, company data, or job files, proprietary survey data or job description files supplied by Customer (collectively, the “Customer Data”) is and will remain Customer’s intellectual property.

12. Confidentiality. The parties acknowledge that each party’s IP (including, without limitation, each party’s Data) constitutes sensitive data and property with intellectual property rights of substantial value to each party. The parties agree (i) not to use the other party’s IP or the other party’s confidential information (collectively, “Confidential Information”) for any purpose other than as expressly permitted under this Agreement, (ii) not to disclose any Confidential Information to any third party without the prior written consent of the other party and (iii) to take commercially reasonable security measures to prevent the unauthorized use, duplication, or distribution of the Confidential Information at least equal to that which the other party uses to protect its own proprietary information. The parties agree to take commercially reasonable security measures to prevent the unauthorized access, use, duplication, or distribution of the other party’s Data to which the other party has access at least equal to that which the other party uses to protect its own proprietary information. A party may disclose the other party’s Confidential Information if required by any judicial or government requirement or order, provided, however, that such party will promptly notify the other party of any such requirement or order, and will cooperate with the other party to contest any such requirement or order. In consideration for the Services being performed hereunder, Customer hereby grants HR Bench the right to utilize Customer Data for normative research so long as such data is used only in aggregated and anonymous format (i.e. so that personally identifiable information allowing the identification of individual employees is removed, the names of Customer’s clients are removed, and data is aggregated such that none of the Customer Data is reported or made available as part of such normative research), for normative research, analyses and reporting purposes only.

13. Indemnification by HR Bench. HR Bench will defend, indemnify, and hold harmless Customer against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by Customer that arise from any third-party claim alleging that the HR Bench Services or the HR Bench Data (collectively, the “Indemnified Products”) infringes the United States copyright, trademark, or service mark rights of any third party (an “Indemnified Claim”), if Customer: (a) has used the Indemnified Products in full compliance with this Agreement; (b) promptly notifies HR Bench of the claim; (c) allows HR Bench to have sole control of the defense and settlement of an Indemnified Claim (though Customer may participate in its own defense at its own expense); and (d) provides HR Bench with the authority, information and assistance that HR Bench deems reasonably necessary for the defense and settlement of the claim. Customer shall not consent to any judgment or decree or do any other act in compromise of any such claim without first obtaining HR Bench’s written consent. If an Indemnified Claim is brought or credibly threatened, HR Bench shall have the option, at its sole expense, to obtain for Customer the right to continue using the Indemnified Products, or modify the Indemnified Products so that they become non-infringing. If neither of the foregoing remedies are commercially feasible, HR Bench may terminate the license for the infringing product and refund an amount equal to one-twelfth of the applicable Annual License Fee paid by Customer for the subscription year in which the termination occurs, multiplied by the number of full calendar months remaining in that subscription year. The indemnity set forth in this Section 13 shall be Customer’s sole and exclusive remedy for any intellectual property infringement claim arising out of Customer’s use of the Services.

14. Indemnification by Customer. Customer will defend, indemnify, and hold harmless HR Bench against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by HR Bench that arise from any third-party claim relating to the Customer Data, if HR Bench: (a) has used such Customer Data in full compliance with this Agreement; (b) promptly notifies Customer of the claim; (c) allows Customer to have sole control of the defense and settlement of such claim (though HR Bench may participate in its own defense at its own expense); and (d) provides Customer with the authority, information and assistance that Customer deems reasonably necessary for the defense and settlement of the claim. HR Bench shall not consent to any judgment or decree or do any other act in compromise of any such claim without first obtaining Customer’s written consent.

15. Changes to Terms of Service.  HR Bench may revise and update these Terms of Service from time to time in its sole discretion. HR Bench will notify customers 60 days in advance of any changes.

16. Miscellaneous. Neither party will assign the Agreement without the other’s written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, except that each party may assign this Agreement to an affiliate or to a successor to all or substantially all of its business or assets (whether through merger, stock sale, asset sale or other transaction). This Agreement, when executed, shall comprise the entire agreement between Customer and HR Bench with respect to the subject matter hereof, and shall supersede all preceding agreements and proposals, whether oral, written, or otherwise that relate to the Services and products ordered in a Subscription Order Form. The Agreement and all of its provisions may not be amended or waived unless agreed upon in writing by the parties hereto.  These Terms of Service are severable. If any provision is deemed illegal or unenforceable, all other provisions will remain in effect. This Agreement may be executed in counterparts. This Agreement may be executed in separate counterparts, and by facsimile or electronically, each of which when so executed and delivered shall be a legally-binding original and all such counterparts shall together constitute one and the same instrument, binding on all parties, notwithstanding that each of the parties may have signed different counterparts. The parties agree that delivery of an executed counterpart signature hereof by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. Neither HR Bench or Customer shall be responsible for delays or performance failures, other than Customer’s payment obligations hereunder, that are caused from events that are beyond their reasonable control and without its fault or negligence, including, without limitation, acts of God, nature, riots, acts of war, pandemics, fire or earthquake. This Agreement shall be governed and construed under the laws of the Commonwealth of Massachusetts, as if performed exclusively in Massachusetts by Massachusetts residents. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement and agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the federal and state courts located in Boston, Massachusetts, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. All required notices will be delivered by reputable overnight delivery service to the addresses set forth in the Subscription Order Form. HR Bench shall not use Customer’s name or logo in any manner without written approval by a duly authorized officer of Customer. Sections 6 and 10-15 will survive any termination of this Agreement. If Customer hereunder is the U.S. Government or any agency or department thereof, the Government agrees the HR Bench product, and the documentation are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to these Terms of Service. The Services, HR Bench’s products and all accompanying documentation are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. If this Agreement fails to meet the Government’s minimum needs or is inconsistent with Federal procurement law, the Government agrees to notify HR Bench. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.