Module Terms and Conditions

These Enwage Module Terms and Conditions (these “Terms”) are entered into by and between Enwage, LLC (“Enwage”) a Florida corporation located at 618 E. South Street Suite 660, Orlando FL 32801 and the legal entity signing the Order Form referencing and subject to these Terms (“Customer”).

 

1. Modules. Enwage provides software-as-a-service applications and services for companies managing their human resources personnel, recruits, retirees, and customer bases (“Modules”).  Upon the Effective Date provided in Customer’s Order Form, Enwage shall make the Modules agreed to in the Order Form available to Customer for its use.  
   
   
2. Payments. Customer shall owe Enwage the Fees detailed in the Order Form.  Fees are subject to the following terms:
   
   
   • • All Fees for the Modules are based on access rights acquired and not actual usage.  All Fees shall be due and payable within thirty (30) days of the invoice date. All Order Forms are non-cancelable, and all payments are non-refundable.
     • Except for Fees subject to a reasonable and good faith dispute, if a payment is past due, Enwage may suspend the Modules exercising its reasonable business judgement under the circumstances, without liability to Customer, until such amounts are paid in full.
       
       
3. Taxes. Unless otherwise agreed, Fees billed to Customer do not include any taxes, including local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature.  The customer is responsible for paying all taxes imposed on its use of the Modules or any other services provided under these Terms. 
   
   
4. Customer Obligations. Customer shall:
   
   
   • Provide all notices, obtain all consents, and perform all other actions necessary under applicable law for Enwage to receive, use and store electronic data or information submitted to the Modules by or on behalf of Customer (“Customer Data”).

• • Have sole responsibility for the accuracy, quality, and legality of all Customer Data.

• • Take commercially reasonable efforts to prevent unauthorized access to, or use of, the Modules, and notify Enwage promptly of any unauthorized access or use.

• • Complete all Enwage required onboarding materials and training, and ensure that its personnel and third parties with access to the Modules complete the same; and

• • Implement all patches, upgrades and other improvements necessary to access and use the Modules. 

Customer hereby understands and agrees it is responsible for its affiliates and personnel (including third parties it provides access to the Modules) compliance with these Terms and any breach by such individuals or entities shall be deemed a breach by Customer.

5. License and Proprietary Rights
   

• • Enwage hereby grants to Customer, and its personnel and third parties authorized to use the Modules, a non-exclusive, limited, non-transferrable, non-sublicensable, revokable license to use the Modules in accordance with these Terms, the Order Form and any Module-Specific Terms. This license grant is limited to the Customer’s internal use.

• • Customer hereby grants, and shall cause to grant as necessary, Enwage a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Modules any Customer feedback, input and Customer Data, necessary for providing the Modules.  

• • As between Customer, Enwage, and Enwage’s licensors, Enwage and/or its licensors own all rights, title and interest to the Modules, and other Enwage Intellectual Property Rights. For purposes of these Terms, “Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

6. Restrictions.  Customer shall not

• • Modify, copy, or create derivative works based on, the Module.
  • License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise make the Modules available to any third party other than to authorized parties as permitted herein.
  • Reverse engineer or decompile any portion of the Modules, including but not limited to, any software utilized by Enwage in the provision of the Modules, except to the extent required by law.
  • In connection with the Modules, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights.
  • Knowingly send or store malicious code in connection with the Module.
  • Knowingly interferes with or disrupts performance of the Modules or the data contained therein.
  • Attempt to gain access to the Modules or its related systems or networks in a manner not authorized by Enwage.
  • Copy any features, functions, integrations, interfaces or graphics of the Modules.

7. Confidentiality

• • Each party (a “Recipient”) shall use the same degree of care that it uses to protect its own confidential information to not disclose or use any Confidential Information of the other party (a “Discloser”) except as reasonably necessary to perform Recipient’s obligations or exercise Recipient’s rights pursuant to these Terms or with the Discloser’s prior written permission. Either party may disclose Confidential Information on a need-to-know basis to its affiliates, contractors and service providers bound by confidentiality obligations at least as restrictive as those in this section. To the extent required by law, Recipient’s disclosure of Discloser’s Confidential Information shall not be considered a breach of these Terms provided that Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. The discloser shall have the right to seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate.

• • For purposes of these Terms, “Confidential Information” means (a) any software utilized in the provision of the Modules and its respective source code; (b) Customer Data; or (c) each party’s business or technical information, training materials, any information relating to software plans, designs, costs, prices, finances, marketing plans, business opportunities, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary. Confidential Information does not include any information that, without Recipient’s breach of these Terms: (i) is or becomes generally known to the public; (ii) was known to Recipient prior to disclosure by Discloser; (iii) was independently developed by Recipient; or (iv) is received by Recipient from a third party. 

8. Privacy and Security. Customer Data shall only be used to provide the Modules to meet the performance obligations under these Terms. Enwage shall implement, and take reasonable efforts to maintain, a privacy and security program in accordance with industry standards and the controls set forth in Oak Street Technologies Information Security Policy. Upon the Customer’s reasonable advance request, Enwage will provide a copy of Enwage’s then-current security standards. As effective as Enwage’s information security measures may be, no security system or process is impenetrable. Customer understands and agrees that Enwage cannot guarantee the security of Customer’s information, and Enwage will need Customer’s help to do so, such as not sharing Customer’s password or login credentials, and immediately notifying Enwage of any security flaws Customer may be aware of. Further, Enwage designs its Modules to allow Customer to achieve differentiated configurations and configure user access controls.
   
   
9. Unauthorized Disclosure. If either party becomes aware of a Security Breach, such party must promptly notify the other party, unless legally prohibited from doing so, in which case the impacted party shall document and present its reasoning for the inability to disclose a Security Breach upon expiration of the legal prohibition against disclosure.  Additionally, each party will reasonably assist the other party in mitigating any potential damage.  For purposes of these Terms, “Security Breach” means (i) any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Customer Data; provided that an incidental disclosure of Customer Data to an authorized party or Enwage, or incidental access to Customer Data by an authorized party or Enwage, where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any applicable law; and (ii) any security breach (or substantially similar term) as defined by applicable law.
   
   
10. Warranties. Each party warrants that it has the authority to enter into these Terms and, in connection with its performance of these Terms, shall comply with all laws applicable to it.  Enwage warrants that during the Term: (i) the Modules under its direct control shall perform materially in accordance with the Documentation; and (ii) the functionality of the Modules under its direct control will not be materially decreased. For purposes of these Terms, “Documentation” means the Enwage brochures, presentations manuals and related documentation describing Enwage’s specific Modules and services offered for purchase by Customer, which may be updated by Enwage from time to time.  In the event of a breach of the warranty set forth in (i) and (ii), Enwage shall correct the non-conforming Modules at no additional charge to Customer, and in the event Enwage is unable to correct such deficiencies after good-faith efforts, Enwage shall refund Customer amounts paid attributable to the defective Modules from the date Enwage received such notice. Customer shall use commercially reasonable efforts to notify Enwage promptly of any known or perceived material breach of (i) and (ii) and provide Enwage with a reasonable period or time to remedy such breach. The remedies set forth in this section shall be the Customer’s sole remedy and Enwage’s sole liability for breach of these warranties.
    
    
11. Disclaimer

• • The Modules provided by Enwage may offer functionalities to assist Customer in meeting its compliance obligations, whether under applicable laws or its internal policies. However, Enwage expressly disclaims any representation or implication that the Modules constitute regulatory, consulting, or legal advice. The Modules are not a substitute for the advice, expertise, and services of legal or compliance professionals, particularly in the field of labor and employment. A customer should consult its own legal counsel or consultants to address its specific compliance requirements.

• • ENWAGE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, OR COMPLIANCE OF THE MODULES WITH ANY SPECIFIC LEGAL, INDUSTRY OR REGULATORY REQUIREMENTS. Customer understands and acknowledges that it is solely responsible for ensuring its compliance with all applicable laws, regulations, and guidelines, particularly in the field of labor and employment. The use of the Modules for its compliance obligations is entirely at the Customer’s own risk. Enwage shall not be held liable for any damages, losses, or consequences resulting from the use of the Modules in relation to compliance matters.

• • EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENWAGE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  ENWAGE DOES NOT WARRANT THAT THE MODULES WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER.

12. Limitation of Liability
    
    
    • Limitation of Liability.EXCEPT WITH RESPECT TO DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ENWAGE’S IP INDEMNIFICATION OBLIGATIONS IN SECTION 12 (C), AND ENWAGE’S REMEDIATION OBLIGATIONS IN SECTION 10, IN NO EVENT SHALL ENWAGE OR ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID AND/OR PAYABLE UNDER THESE TERMS DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD FOR THE MODULES FROM WHICH THE CLAIM AROSE.

• • Exclusion of Damages.EXCEPT FOR ENWAGE’S IP INDEMNIFICATION OBLIGATIONS IN SECTION 12 (C), IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE LIABILITY FOR LOST PROFITS OR REVENUES, LOSS OF USE OR DATA, BUSINESS INTERRUPTION, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR COVER DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIONS IN THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. CUSTOMERS’ PAYMENT OBLIGATIONS SHALL NOT BE CONSIDERED ENWAGE’S LOST PROFITS.

• • IP Indemnification.Enwage shall defend Customer from claims, demands, suits, or proceedings made or brought against Customer by a third party (“Claims”) alleging that the use of the Modules as contemplated hereunder infringes such third party’s Intellectual Property Rights and shall indemnify and hold Customer harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”); provided that Customer: (a) promptly gives written notice of the Claim to Enwage; (b) gives Enwage sole control of the defense and settlement of the Claim; and (c) provides to Enwage all reasonable assistance.  Enwage shall have no liability for Claims or Losses to the extent arising from: (v) modification of the Modules by anyone other than Enwage; (w) use of the Modules in a manner inconsistent with these Terms; or (x) use of the Modules in combination with any other product or service not provided by Enwage.  If Customer is enjoined from using the Modules or Enwage reasonably believes it will be enjoined, Enwage shall have the right, at its sole option, to obtain for Customer the right to continue use of the Modules or to replace or modify the Modules so that it is no longer infringing. If neither of the foregoing options is reasonably available to Enwage, then the applicable Order Form may be terminated at either party’s option and Enwage’s sole liability, in addition to the indemnification obligations herein, shall be to refund any prepaid fees for the Modules that were to be provided after the effective date of termination.

13. Term. These Terms continue from the Effective Date (as defined in the Order Form) until all Order Forms have expired or otherwise been terminated, unless extended pursuant to the written agreement of the parties (“Term”). 
    
    
    • Termination. Either party may terminate these Terms: (i) upon thirty (30) days prior written notice to the other party for a material breach by the other party if such breach remains uncured 30 days at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If the Agreement is terminated, all Order Forms are simultaneously terminated and Customer shall, as of the date of any termination, immediately cease accessing and otherwise utilizing the Modules and Enwage Confidential Information.  Termination for any reason shall not relieve the Customer of the obligation to pay any fees accrued or due and payable to Enwage prior to the effective date of termination and termination. 

• • Transition Services. Upon termination or expiration of these Terms or Order Form, Enwage will provide Customer reasonable assistance to return Customer Data and its Confidential Information to Customer, and at Customer’s expense, to transition Customer’s use of the Modules to a provider of similar services.

• • Surviving Provisions. Sections 2, 3, 6 – 9, 11 – 14; and any right or obligation of the parties which, by its nature, should survive termination or expiration of these Terms, will survive any such termination or expiration.

14. Miscellaneous

• • Other Module-Specific Terms Customer understands and agrees that its use of certain Modules is subject to specific use, rights and obligation requirements contained in separate terms applicable to such Modules (“Module-Specific Terms”). Enwage shall provide the Customer with access to such terms prior to execution of the Order Form. 

• • Relationship of the Parties. The parties are independent contractors.  These Terms do not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties or their personnel and third parties working on their behalf. 

• • Third-Party Sites and Content. The Modules may connect with third-party platforms, contain links to third party sites or display third-party content that are not directly under Enwage’s control, such as Microsoft Outlook for Customer to send communications. Customer understands and agrees that the platforms, linked sites and content are not under Enwage’s direct control, and Enwage is not responsible for such third-party platforms, linked sites or content, nor does Enwage make any representation or warranties with regard to any other platform, site or content that Customer may access through the Modules. The platforms, linked sites, and content provided shall not be construed as Enwage’s endorsement of, sponsorship of, or affiliation with the third-party platform, linked site or content. The customer is responsible for reviewing and complying with third-party terms applicable to such platforms, linked sites or content.

• • Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including floods, fires and cyber-attacks.

• • Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld).  Notwithstanding the foregoing, either party may assign these Terms in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of these Terms and all past due fees are paid in full. 

• • Governing Law. These Terms will be governed by Florida law, without reference to its choice of law rules. Exclusive jurisdiction over and venue of any suit arising out of or relating to these Terms will be in the state and federal courts in Orange County, Florida, and each of the parties’ consents to the personal jurisdiction of, and venue in, those courts.

• • Agreement. These Terms, including all Module-Specific Terms and the Order Form hereto, constitutes the entire agreement between the parties relating to the matters discussed herein, and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter.  These Terms may be amended, modified, or waived only with the mutual written consent of the parties. If a provision of these Terms is held invalid under applicable law, such invalidity will not affect any other provision of these Terms that can be given effect. In the event of a conflict, the order of precedence shall be as follows: (i) the Order Form; (ii) any Module-Specific Terms; and (iii) these Terms.

• • Notice Regarding Apple. This section only applies to the extent Customer is using Enwage’s mobile application on an iOS device. Customer acknowledges that these Terms are between Customer and Enwage only, not with Apple Inc. (“Apple”), and Apple is not responsible for the service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Modules. If the Modules fail to conform to any applicable warranty, Customer may notify Apple, and Apple will refund any applicable purchase price for the mobile application to Customer. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Modules. Apple is not responsible for addressing any claims by Customer or any third party relating to the Modules or Customer’s possession and/or use of the Modules, including: (a) product liability claims; (b) any claim that the Modules fail to conform to any applicable legal or regulatory requirement; or (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 the Modules and/or Customer’s possession and use of the Modules infringes a third party’s Intellectual Property Rights. The customer agrees to comply with any applicable third-party terms when using the Modules. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon Customer’s acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as a third-party beneficiary of these Terms. Customer hereby represent and warrant that: (i) Customer is 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 (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.