Terms Of Service
Last updated: 2-9-2021
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.
YOUR USE OF THE PROPRIETARY PREMIER HR SOLUTIONS OFFERED AT THE PREMIER HR WEBSITE LOCATED AT WWW.PREMIERHRSOLUTIONS.NET, THE PREMIER HR WEB APPLICATION OWNED AND OPERATED BY PREMIER HR AND THE CONTENT AND SERVICES OFFERED BY PREMIER HR THROUGH THE WEBSITE AND APPLICATION (COLLECTIVELY, THE “SYSTEM”), IS SUBJECT TO THESE TERMS OF SERVICE. IN ORDER TO USE THE SYSTEM, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (THIS “AGREEMENT”) WITH PREMIER HR SOLUTIONS LLC (“PREMIER HR”). IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SYSTEM.
By signing up for the System on behalf of a client of Premier HR, you confirm that (a) you are duly authorized to represent the legal entity under which the Client operates and any affiliates of the client who will be using the System under the Client, (b) you accept the terms of this Agreement on behalf of such legal entity and affiliates, and (c) any references to “you” in this Agreement refer to such legal entity, affiliates and all of the employees, consultants and agents of those respective parties. You are responsible for all activity on the Services that occurs under your account.
1.1 Services accessed through the System or otherwise may include additional services that you subscribe to receive specifically from or through Premier HR (“Additional Services”). Some of these Additional Services such as human resource consulting services and recruitment services and others have specific additional terms that apply to your use of those Additional Services (the “Additional Terms”), and those Additional Terms become part of this Agreement. In the event an Additional Term directly conflicts with any term in this Agreement, the Additional Term will apply to your use of the Additional Services instead of the term contained in this Agreement. Users may use the System only if the User is sixteen (16) years of age or older and is not barred from using the System under applicable law.
You affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:
You are at least 18 years of age, or if you are under 18 years of age you are either an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
Your use of the System will not violate applicable law or infringe upon the intellectual property rights, privacy rights or publicity rights of third parties.
Term and Termination
2.1 This Agreement will remain in effect as long as you have an active subscription for the System (the “Term”). If you elect to use the System for a free trial period, and do not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
2.2 Subscriptions purchased by you commence on the start date specified when you complete the initial payment process and continue for the subscription term selected at the time of payment. If you add an additional subscription for Additional Services or a different module at a later date, the new service will commence on the start date specified at the time you added the new service and continue for the subscription term selected at that time. Subscriptions automatically renew, as described in Section 5.1. If you would like a separate instance of access to the System and/or Additional Services for an affiliate, that affiliate must purchase its own subscription to the System and Additional Services and separately accept these Terms of Service. You are responsible for keeping your payment method up to date. Failure to promptly update expired or replaced credit cards or accounts via ACH may result in a suspension or termination of your account.
2.3 You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time upon 30 days’ notice by email to firstname.lastname@example.org.
2.4 Premier HR may suspend your access to the System and terminate this Agreement and your use of the System at any time in the event you materially breach this Agreement (including failure to pay, which may occur if your credit card cannot be charged) and you do not cure such breach within 30 days of Premier HR providing you with written notice of such breach (including notice by email), or earlier if a specific subscription or Additional Terms provides otherwise. Notwithstanding the foregoing, Premier HR may immediately suspend or terminate your access to the System without liability if you are in violation of Sections 4.1, 4.5 or 13 of this Agreement, as determined by Premier HR in its sole discretion. Premier HR may also downgrade, suspend or terminate your access to the System without liability, after providing you with 30 days’ advance written notice, if you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 3.2 below.
For instances other than non-payment or violation of Section 4.1, in the event you cancel one or more of your subscriptions or this Agreement is terminated by Premier HR or you, you may email a refund request to Premier HR at email@example.com for any prepaid fees covering any period of the Term remaining after the effective date of termination for all such subscriptions, except that no refunds will be granted for the then-current month, and Premier HR may, after confirming that you are have paid funds to Premier HR for services not received and have no other outstanding balances, refund you the balance of any such funds. Notice via email from Premier HR will be sent to you at the email address you have provided to us. Premier HR reserves the right to manage its client profile, the risks it will assume, the industries it will serve, and the locations where it will do business, including choosing to not provide services to certain groups parties, industries, or companies in certain countries, at its sole discretion.
2.5 Data downloads and deletion. In the event your subscription is terminated, other than in instances where it is terminated by Premier HR for your nonpayment or violation of Sections 4.1 or 13, you will continue to have the ability to download the information provided, inputted or uploaded to your databases in the System by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination of your subscription. After such 30-day period or if your subscription is terminated due to your nonpayment or violation of Section 4.1, Premier HR shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, or required pursuant to Additional Terms, delete all of your Data contained in the System.
Modification of System or this Agreement
3.1 The System may be made available in free or paid versions at different levels. Not all features and functionality of the System may be available in each version or level. Premier HR reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the System on a temporary or permanent basis, without liability to you or any third party.
3.2 Premier HR may modify or update this Agreement at any time. In the event Premier HR determines it is necessary to make a material modification to this Agreement, you will be notified of such change and asked to affirmatively agree to such modified version of the Agreement. Note, however, that your use of the System after modifications to the Agreement become effective constitutes your binding acceptance of such changes. You may review the most current version of this Agreement at: www.PremierHRsolutions.net/terms-of-service
3.3 If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the System, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the System.
Usage Rights; Restrictions; Availability of the System, Support
4.1 During the Term, Premier HR grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the System and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”) via a web browser or mobile application other device owned or controlled by you for your internal business use. In order to use all of the features of the System, you may need to sign into third-parties’ systems or services and agree to their terms (Google Cloud, Sharepoint, etc.) which are in addition to this Agreement. Nothing in this Agreement obligates Premier HR to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the System only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
1) use the System to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by Premier HR;
2) use the System for any fraudulent or inappropriate purpose, or in a manner for which it is not intended to be used (as determined by Premier HR in its sole discretion), including, without limitation, to access any data or third-party personal information that you are not legally allowed to access, including any Premier HR personal data or sensitive personal or business information;
3) attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
4) duplicate, make derivative works of, reproduce or exploit any part of the System without the express written permission of Premier HR;
5) use any robot, spider, other automated device, or manual process to monitor or copy any content from the System other than copying or exporting of the Data as contemplated in the documentation; or
6) rent, lease, distribute, or resell the Software, or access or use the Software or System for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the System.
4.2 THE SYSTEM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SYSTEM IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE HEREIN, THE SYSTEM IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PREMIER HR, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT ON THE SYSTEM IS ACCURATE, RELIABLE OR CORRECT; THAT THE RESULTS OF USING THE SYSTEM WILL MEET YOUR REQUIREMENTS; THAT THE SYSTEM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. USERS IN STATES OR JURISDICTIONS THAT DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES MAY HAVE DIFFERENT LEGAL RIGHTS, WHICH MAY VARY BY JURISDICTION. IN SUCH STATES OR JURISDICTIONS OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
Notwithstanding the foregoing, PremierHR shall: (i) provide you with basic support in connection with your use of the System at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the System available to you, except for: (a) planned downtime, (b) any unavailability caused by circumstances beyond PremierHR’s reasonable control, including, but not limited to, acts of God, acts of government, floods, fires, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, or (c) as necessary to update the System to ensure its security and integrity and the security and integrity of any personal data it processes and (iii) provide the System in accordance with Applicable Law.
Premier HR’s hours for basic support are 8:00 a.m. to 5:00 p.m., Central Time, on weekdays, in the English language via telephone, email and chat.
4.4 You are solely responsible for your Data, and all uses of your Data that occur through your account.
4.5 IF YOU CHOOSE TO USE AND PAY FOR A TEST ACCOUNT (A LIMITED TIME AND USAGE PREMIER HR ACCOUNT USED FOR TESTING THE System), YOU AGREE AND ACKNOWLEDGE THAT (A) YOUR TEST ACCOUNT WILL NOT BE USED WITH LIVE OR REAL DATA AND (B) PREMIER HR MAKES NO WARRANTIES OR GUARANTEES REGARDING THE TEST ACCOUNT.
4.6 If you integrate with Premier HR using our API, you must use efficient programming, which will not cause an excessive number of requests to be made in too short a period of time, as-determined solely by Premier HR. If this occurs, Premier HR reserves the right to throttle your API connections or suspend or terminate your Premier HR account.
Payment Terms; Automatic Renewal
5.1 YOUR SUBSCRIPTION TO THE SYSTEM RENEWS AUTOMATICALLY FOR THE SAME TERM SELECTED UPON INITIAL PAYMENT (E.G., MONTH-TO-MONTH, ANNUAL, ETC.). YOU MAY CHANGE YOUR SUBSCRIPTION TERM AT ANY TIME BY CONTACTING PREMIER HR USING ONE OF THE METHODS SET FORTH IN THE CONTACT INFORMATION SECTION BELOW. IF YOU ARE PAYING BY CREDIT CARD, YOUR CREDIT CARD WILL BE CHARGED ONCE A MONTH FOR MONTHLY SUBSCRIPTIONS AND AT THE TIME YOUR ANNUAL SUBSCRIPTION PAYMENT HAS BEEN DEPLETED BASED ON YOUR NUMBER OF EMPLOYEES AND SUBSCRIPTION TO THE SYSTEM. IF YOU ARE PAYING BY QUICKBOOKS OR VIA ACH ELECTRONIC FUNDS TRANSFER, YOU ARE OBLIGATED TO PAY MONTHLY (OR ANNUALLY IF YOU HAVE AN ANNUAL SUBSCRIPTION) BY THE DUE DATE, AND IF YOUR SYSTEM OF PAYMENT ALLOWS FOR AN AUTOMATIC PERIODIC DRAFT, YOU AGREE TO SUCH AUTOMATIC DRAFT.
Our third party billing provider will email you a receipt when your card has been charged. If your card cannot be charged, our third party provider will notify you and you will need to update your payment information. In the event you do not update your payment information within 15 days of notice, your access to the System may be suspended and you will need to update your card information in order to resume use of the System. There will be no refunds or credits for partial months of service.
5.2 If Premier HR offers an annual subscription, annual subscription pricing shall require a one-year minimum commitment. If you cancel your full subscription, or your subscription is suspended for nonpayment, before the end of the one-year commitment period, you will no longer qualify for annual subscription pricing and you will be charged the difference between the monthly and annual commitment pricing for the number of months your subscription was active. If you cancel only a portion of your subscription, you may still qualify for annual pricing and the prepaid amounts attributed to that portion will be used against other Additional Services to which you have subscribed.
5.3 All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which Premier HR may be required to collect from you and remit to appropriate taxing authorities, you are solely responsible for payment of all such taxes or duties.
5.4 Premier HR may at any time, upon notice of at least 30 days, or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your annual subscription period will go into effect for any subsequent annual subscription periods and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription and stop using the System prior to the commencement of the renewal subscription period for which the price change applies.
Intellectual Property Rights
6.1 As between the parties, Premier HR owns and shall retain all right, title and interest in and to (a) the Software and the System, including all intellectual property rights therein, and (b) all transactional and performance data related to your use of the System. Premier HR may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
6.2 You retain all right, title and ownership interest in and to your Data. Premier HR has no right, title or interest in any personally identifiable information contained in or related to your Data.
6.3 You have no obligation to give Premier HR any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the System. To the extent you provide any Feedback to Premier HR, Premier HR may use and include any such Feedback to improve the System or for any other purpose. Accordingly, if you provide Feedback, you agree that Premier HR shall own all such Feedback and Premier HR and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the System or other related technologies, and you hereby assign all rights in such Feedback to Premier HR.
6.4 From time to time during the Term, Premier HR may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”) for you pursuant to agreement between you and Premier HR. Premier HR shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use only during the Term. Premier HR may reuse any Deliverables, provided that such use does not reveal your identity, your confidential information or any personally identifiable information that belongs to you or your employees.
7.1 Unless otherwise agreed to by you and Premier HR, during the Term, Premier HR may disclose your name as a customer of Premier HR and/or subscriber to the System, and you hereby grant Premier HR the right to display your name, company, and logo in Premier HR’s marketing materials and on Premier HR’s public website, in each case in accordance with any branding guidelines you may provide to Premier HR.
8.1 Certain features of the website may enable users to submit, upload, post, share, or display (hereinafter, “post”) comments or content, as well as to interact with others through user comment areas, message boards, direct messages, Premier HR’s blog, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as “User Content”). User Content includes any comments or reviews you provide to Premier HR, whether through customer support or otherwise, about the System but excludes all Data.
8.2 You hereby grant to Premier HR an irrevocable, perpetual, non-exclusive, transferable, sublicensable, assignable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on our website or about the System for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to Premier HR that you own or control all rights in and to such User Content and have the right to grant the rights above to Premier HR.
Warranties and Limitation of Liability
9.1 Premier HR represents, warrants, and covenants as follows: (a) the System will perform substantially in accordance with the specifications generally provided by Premier HR in connection with the System (“Documentation”); (b) the provision of the System will comply with all privacy and data protection laws applicable to its business; (c) it will not sell Personal Information provided by you, and it will retain, disclose, or use Personal Information provided by you only for purposes of providing the System; and (d) any professional services performed for you by Premier HR will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, PREMIER HR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SYSTEM, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR ADDITIONAL SERVICES. PREMIER HR DOES NOT WARRANT THAT OPERATION OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED.
9.3 EXCEPT FOR (I) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (III) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY PREMIER HR FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PREMIER HR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT ON THE SYSTEM; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SYSTEM; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SYSTEM; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SYSTEM BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SYSTEM; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IF, FOR ANY REASON, PREMIER HR IS DETERMINED TO HAVE FINANCIAL LIABILITY TO YOU FOR ANY OF THE FOREGOING, THE TOTAL LIABILITY SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PREMIER HR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10.1 External Breach: In the event of an accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to, personal data, or the introduction of a virus, malware or other illicit code into the other party’s computer system (a “Security Breach”), that impacts the personal data you maintain through the System, and which is perpetrated by anyone other than your employees, contractors or agents, upon discovery of such Security Breach, Premier HR will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) notify you of the Security Breach, its nature and scope, the remedial actions Premier HR will undertake, and the timeline within which Premier HR expects to remedy the Security Breach. You will be responsible for fulfilling your obligations under Applicable Law.
10.2 Internal Breach: In the event of a Security Breach, as defined by Applicable Law, which is perpetrated by your affiliate, employee, contractor or agent, or due to your failure to maintain your systems, network or Data in a secure manner, you shall be liable to us for damages arising from such Security Breach and you shall have sole responsibility for initiating remedial actions and you shall notify Premier HR immediately of the Security Breach and steps you will take to remedy such breach. In our sole discretion, we may take any action, including suspension of your access to the System, to prevent harm to you, us, the System, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
11.1 You agree to indemnify, defend and hold harmless Premier HR, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with (a) your use of the Software and/or System in violation of this Agreement, (b) any employment decision or action you take due to information available through or your use of the System.
11.2 Premier HR agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or in connection with an allegation that your use of the Software and/or System in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Premier HR have any obligations or liability arising from: (a) use of the Software and/or System in a modified form or in combination with materials or software not furnished by Premier HR, and (b) any User Content, information or Data provided by you, your end users, or other third parties.
11.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnifying party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 11, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
12.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Texas, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Compliance with Laws; Disclaimers
13.1 Each Party shall comply with all Applicable Laws in connection with its own activities under this Agreement. The System can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to monitor your employees’ use and your use of the System to ensure that such use complies with and is in accordance with Applicable Law. In no event shall Premier HR be responsible or liable for your failure to comply with Applicable Law in connection with your use of the System.
13.2 Premier HR does not provide its customers with legal advice regarding compliance, data privacy, employment or tax matters, or other relevant Applicable Laws in the jurisdictions in which you use the System, and any statements made by Premier HR to you shall not constitute legal advice.
13.3 You acknowledge that Premier HR exercises no control over your specific human resource practices implemented using the System or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the System. You further agree and acknowledge that Premier HR does not have a direct relationship with your employees and that you are responsible for all contact, questions, Data updates and collection, with and from your employees. In addition, you are responsible for the privacy (including adopting and posting your own privacy policies governing your treatment of your employees’ Data), collection, use, retention and processing of your employees’ Data, and providing any and all notices and information to your employees regarding the foregoing, in compliance with all Applicable Laws. Premier HR hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the System by you and/or your employees, contractors or agents.
13.4 You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the System or Software, or any technical information about the System or Software, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained.
13.5 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
14.1 If you use the iOS version of the System, you acknowledge the statements set forth in this Section. This Agreement is between you and Premier HR only, not with Apple Inc. (“Apple”), and Apple is not responsible for the System or the functionality or content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the System. In the event of any failure of the System to conform to any applicable warranty and if you purchased a subscription to the System through Apple, then you may notify Apple and Apple will refund the purchase price for the relevant System to you; and, to the maximum extent permitted by Applicable Law, Apple has no other warranty obligation whatsoever with respect to the System. As between Apple and Premier HR, Premier HR is responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the System to conform to any warranty, subject to the terms of this Agreement. Apple is not responsible for addressing any claims brought by you or any third party relating to the System or your possession and/or use of the System, including, but not limited to: (a) product liability claims; (b) any claim that the System fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the System infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the System. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.
15.1 Any Additional Services requested by you may be subject to Additional Terms between you and Premier HR, which shall become a part of this Agreement in connection with the subject matter of such Additional Terms.
16.1 Premier HR occasionally uses electronic signatures on its contracts and in the performance of its Additional Services. If you use an electronic signature service offered to contract with Premier HR, you acknowledge and agree to the statements set forth in this Section. Whenever you sign a document using any electronic signature service you affirmatively consent to using electronic signatures via the electronic signature service and consent to conducting electronic business transactions. You also confirm that you are able to access the electronic signature service and the document you are signing electronically. When using the electronic signature service for a particular document, your consent applies only to the matter(s) covered by that particular document.
16.2 PLEASE NOTE THAT PREMIER HR’S STATEMENTS CONTAINED HEREIN OR ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE GENERAL IN NATURE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. PREMIER HR HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH ANY ELECTRONIC SIGNATURE SERVICE ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU MAY SIGN ELECTRONICALLY USING ANY ELECTRONIC SIGNATURE SERVICE.
17.1 Entire Agreement. This Agreement encompasses the entire agreement between you and Premier HR with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement. Except as provided in any separate agreement entered into between you and Premier HR, Premier HR reserves the right to change the terms, conditions, and notices under which it offers the Service at any time upon notice to you in writing, and such modifications will be deemed effective immediately upon notifying you. You are responsible for reviewing any changes made to this Agreement and notified to you. You can review the most current version of this Agreement at any time at https://www.premierhrsolutions.net/terms-of-service
17.2 No Waiver. The failure of Premier HR to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
17.3 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
17.4 Survival. The provisions of this Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
17.5 Assignment. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Premier HR’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
17.6 No Legal Advice; Reliance. No part of this Agreement is intended or shall be construed as legal advice. Premier HR shall not be liable for any errors or omissions in the content of this Agreement or for any actions taken in reliance thereon.
17.7 No Third-Party Beneficiaries. Subject to Section 14.1, nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties hereto, any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
17.8 Arbitration and Applicable Law.
Applicable Law. The laws of the State of Texas shall apply to the interpretation of this Agreement, without reference to the conflicts of laws principles thereof.
Informal Negotiations To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Premier HR, including without limitation any disagreement, dispute, or claim related to or arising out of this Agreement, you and Premier HR must and will attempt to negotiate any claim or dispute informally (the “Informal Negotiations”) before initiating any arbitration proceeding, or court proceeding to the extent a court proceeding is proper unless injunctive relief is being sought by Premier HR in which instance Informal Negotiations are not required. Such Informal Negotiations will commence shortly following written notice. A party who intends to seek arbitration must and will first send to the other, by both certified mail if a physical mail address is provided, and email, a notice of dispute stating the nature of the claim or dispute in detail sufficient to describe the matter to a third party and the amount in controversy (“Notice of Dispute”). The Notice of Dispute to Premier HR is to be both mailed or otherwise delivered to Premier HR Solutions LLC, Attn: Legal Department, 1320 Arrow Point Drive #501, Cedar Park, Texas 78613, firstname.lastname@example.org. We may email you a confirmation of receipt of your Notice of Dispute and require that you verify that you submitted the Notice of Dispute. If we do, and we do not promptly receive back a verification then you agree that your attempt to give Notice of Dispute is deemed ineffective. Premier HR may send any Notice of Dispute to you to the physical address we have on file associated with your Premier HR account, if we have one, and if not then by email or any other commercially reasonable method; it is your responsibility to keep your physical address and all other contact information up to date. All information called for in the Notice of Dispute must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
ARBITRATION. If the claims or disputes described in the Notice of Dispute is not resolved through Informal Negotiations within 30 days after the Notice of Dispute is sent, you or Premier HR may initiate arbitration proceedings you and Premier HR expressly agree to resolve any and all disputes not resolved through Informal Negotiations (except those disputes expressly excluded in this section) through final and binding arbitration (“Arbitration Agreement”). The United States Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement, which evidences a transaction involving commerce; the arbitrator shall apply Federal or California State law to all other matters.
Except as may be otherwise set forth in this Arbitration Agreement, the arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). If AAA ceases to provide arbitration service, then the term “AAA” shall mean and refer to J.A.M.S, and the arbitration shall be held under the J.A.M.S. Streamlined Arbitration Rules and Procedures, as modified by this Terms and Arbitration Agreement. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Arbitration Agreement. The arbitrator(s) shall be a retired judge or justice, or a duly licensed attorney with no less than 10 years of experience in arbitrating commercial disputes involving the claims in dispute. If the parties cannot agree upon an arbitrator within fifteen days of the filing of the demand for arbitration, the AAA shall select the arbitrator.
A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You must and will send a copy to Premier HR at the physical address and email provided above. In the event Premier HR initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Premier HR account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is your responsibility to keep your physical address and all other contact information up to date. Any settlement offer made by you or Premier HR shall not be disclosed to the arbitrator.
All claims or arbitrations filed, brought, initiated, or commenced (“initiated”) by you contrary to this Arbitration Agreement shall be deemed improperly initiated. Should you initiate a claim or arbitration contrary to this Arbitration Agreement, Premier HR may recover actual attorneys’ fees and costs up to $1,000.00, provided that Premier HR has notified you in writing of the improperly initiated claim or arbitration, and you have failed to promptly withdraw the claim or arbitration.
Your filing, administration, location, arbitration fees, and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). Each party will pay the fees and costs for his/her or its own attorneys and experts, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Class Action Waiver” described herein.
Excluded Disputes. You and Premier HR agree that the following disputes are excluded from this Arbitration Agreement: (1) any dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON- INDIVIDUALIZED RELIEF: WE EACH AGREE THAT ANY AND ALL DISPUTES OR CLAIMS RELATING IN ANY WAY TO PREMIER HR’S SITE, SERVICE OR THIS AGREEMENT MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR CONSOLIDATED PROCEEDING. BY ENTERING INTO THIS TERMS AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND Premier HR ARE EACH WAIVING ANY RIGHT TO FILE A LAWSUIT, GO TO COURT, AND THE RIGHT TO A TRIAL BY JUDGE OR JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. (Arbitration procedures are typically, but not always, more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court.) Further, In the event any litigation should arise between you and Premier HR in any state or federal court in a suit to vacate or enforce an arbitration award, YOU AND Premier HR WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. IN ADDITION, YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION OR LITIGATE OR ARBITRATE ON A MULTI-PARTY, CLASS- WIDE, OR CONSOLIDATED BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, MULTI-PARTY, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN’T ALLOWED AND ARE WAIVED. UNLESS BOTH YOU AND Premier HR AGREE OTHERWISE IN WRITING DURING THE ARBITRATION, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, MULTI-PARTY, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS OR PARTIES. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than 120 days after a party has become aware of a claim or dispute. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct reasonable and adequate civil discovery and present witnesses and evidence as reasonably needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in Travis County, Texas. Any court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.
No part of the proceedings shall be revealed or open to the public or the media. All evidence discovered or submitted is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court or arbitrator order, as may be applicable, or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to the arbitrator, or a court of law or equity, as may be applicable, any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or solely to seek injunctive or equitable relief to stop unauthorized use of the Service, or to stop intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
Notwithstanding anything to the contrary in the rules or procedures of AAA, the arbitrator’s award shall be final and binding. The arbitrator will decide the substance of all claims in accordance with applicable law and rules, including regarding the admissibility of evidence, and including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall set forth in writing evidentiary rulings, findings of fact and conclusions of law, and in supported and reasoned decision(s) shall render all awards, including for baseless motions, motions not brought in good faith, and bad faith evasions, failures, and refusals, to comply with procedures, discovery, or proceedings, based thereon, and shall apply the law as the law is. The Parties agree to use reasonable efforts to maintain all matters relating to any proceeding (judicial or arbitration) hereunder confidential, including by seeking to have court filings sealed.
Enforcement of Arbitration Award: In the event an arbitration decision, award or judgment is obtained, whether entered, filed or confirmed in court or not, the Party against which there may be obligation or against which the decision, award or judgment has been made agrees to pay all reasonable attorneys’ fees and costs incurred in the enforcement of any such agreement, decision, award or judgment.
Severability With the exception of any of the provisions of this Arbitration Agreement (titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or a court, as applicable, decides that any part of this Arbitration Agreement is invalid or unenforceable, that portion will be severed and the other parts of this Arbitration Agreement shall still apply and will be given full force and effect. If an arbitrator or a court properly decides that any of the provisions of this Arbitration Agreement titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” is invalid or unenforceable, then this Arbitration Agreement shall be null and void, will be severed, and the remainder of the Agreement will continue to apply.
Future Amendments to the Arbitration Agreement: Notwithstanding any provision in the Terms to the contrary, you and we agree that if we make any amendment to this Arbitration Agreement (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Premier HR prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Arbitration Agreement that have arisen or may arise between you and Premier HR. We will attempt to notify you of amendments to the Arbitration Agreement by posting the amended terms on or through the Service at least 30 days before the effective date of the amendments or by providing notice through any Premier HR notice or message center and/or by email. If you do not agree to these amended terms, You must cease using the Service within the 30 day period and you will not be bound by the amended terms. If you continue to use the Service will be deemed to have agreed to the amendments.
This Arbitration Agreement will survive the termination of your relationship with Premier HR.
18.1 If you have any questions about the Service or this Agreement, you may call us at 512-377-9030, email us at admin@PremierHRsolutions.net, or write to us at:
Premier HR Solutions LLC
1320 Arrow Point Drive #501
Cedar Park, Texas 78613
Premier HR is a trademark of Premier HR Solutions LLC. © Premier HR Solutions LLC 2021. All rights reserved.