Workforce & Careers Awareness Agreement

Workforce & Careers Awareness Agreement

This Workforce & Careers Awareness Agreement (together with all the exhibits, attachments and Order Forms attached hereto, this “Agreement”) is by and between YouScience, LLC (“YouScience”) and the employer entity that receives the Services (“Employer”). This Agreement constitutes a binding contract between Employer and YouScience (together, the “Parties” and, individually, each a “Party”).

This Agreement governs Employer’s access to and use of the Services. By executing an Order Form that states it is subject to or otherwise governed by this Agreement or by using our Services, Employer acknowledges and agrees to be bound by the terms of this Agreement.

1.          DEFINITIONS. For purposes of this Agreement, the following capitalized terms shall have the meanings ascribed thereto. Other capitalized terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated.

(a)   “Documentation” means all YouScience documentation and information relating to the Services, as generally made available by YouScience to Employer from time to time.

(b)   “Employer Account” means an account created by Employer on the YouScience platform that allows Employer to add and update general information about Employer, including the creation of an Employer Profile, and other functionality that the parties may agree upon from time to time.

(c)    “Employer Profile” means the information provided by Employer to describe its name, address, business, industry, and any information Employer might provide related to the Services, including but not limited to information about specific skills or job titles related to Employer’s business. 

(d)   “Employer User” means one or more employees of Employer who are authorized to access and use the Services on behalf of Employer.

(e)   “Online Terms” means the YouScience online Terms of Use available at https://www.youscience.com/terms-of-use/. The Online Terms are hereby incorporated into this Agreement by reference and any references to the Agreement herein shall include, as applicable and as appropriate, the Terms of Use.

(f)    “Order Form” means any quote, online order form, purchase order, invoice, or other ordering document through which Employer requests and/or acquires access to, use of, or receipt of any Services.

(g)   “Privacy Policy” means the then-current Privacy Policy for the Services located at https://www.youscience.com/privacy-policy/.

(h)   “Services” means the online applications and related services provided or made available by YouScience to Employer under this Agreement as detailed in one or more Order Forms created by YouScience.

2.          PROVISION OF SERVICES

2.1        General. During the Term, YouScience will provide the Services in accordance with the terms of this Agreement and the applicable Order Form. Employer’s use of the Services shall comply at all times with the terms of this Agreement and the Online Terms.

2.2        Authorization for Access and Use. Subject to the terms of this Agreement and the applicable Order Form, YouScience grants to Employer and its Employer Users a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable right to access and use the Services as described in the applicable Order Form and the Documentation.

3.          DUTIES OF THE PARTIES

3.1        Duties of the Employer. 

(a)   General Duties. Employer will: (i) ensure that Employer and its Employer Users’ access to and use of the Services comply with this Agreement; (ii) use commercially reasonable efforts to prevent and terminate any unauthorized access to or use of the Services; (iii) only permit authorized employees of Employer to access and use an Employer Account; and (iv) promptly notify YouScience if Employer becomes aware of any unauthorized access to or use of the Services or its Employer Account. 

(b)   Content.  Employer will: (i) ensure that all information included on the platform by Employer describing Employer, its business, related skills and careers, and job titles is accurate, and does not include any obscene or offensive language or materials, or anything that might be considered inappropriate for middle or high school students who might view such content; (ii) not upload to YouScience’s platform, including as a part of its Employer Profile anything that contains, links, or connects to malware, spyware, unwanted software or other malicious code, or knowingly circumvent  any of YouScience’s platform security measures; and (iii) include only logos, images, and other forms of intellectual property in conjunction with its Employer Profile for which Employer has all necessary and appropriate intellectual property rights and licenses.   

3.2        Duties of YouScience. YouScience will: (i) provide the Services as specified in the Order Form and Documentation; and (ii) comply with all applicable state and federal laws.

4.          OWNERSHIP 

4.1        YouScience Owns the Services.  As between the Parties, YouScience owns all right, title, and interest in and to the Services, including any outputs, analytics, improvements, modifications, enhancements, additions, and derivatives therein or thereof, and any and all intellectual property rights in the foregoing. Employer does not acquire any rights, express or implied, in the foregoing other than those specified in this Agreement. 

4.2        Data Ownership. YouScience shall own all data generated in connection with the Services including reports and reporting provided to Employer.  Although YouScience shall own all data associated with reporting provided by YouScience to Employer, YouScience hereby grants Employer a limited, revocable, royalty-free, non-sublicensable right and license for Employer to use such reports and associated data only for its internal business purposes, and for no other purpose.  For clarity, YouScience does not acquire ownership in data provided by Employer to YouScience.  You Science will remove Employer content and terminate Employer’s Account upon the earlier of (i) Employer’s written request, and (ii) six months after the termination of the Services.

4.3        Use of Employer Logo. Notwithstanding anything to the contrary in this Agreement, Employer authorizes YouScience to refer to Employer as a customer and include Employer’s name, word mark, and logo in YouScience’s marketing materials, including on YouScience’s websites, unless Employer revokes its authorization in writing.  The Parties anticipate that Employer may upload or include Employer’s logo or other intellectual property of Employer in its Employer Profile.  Employer hereby authorizes and grants YouScience a limited license to display such logos and intellectual property to users of the Services during the term of this Agreement.

5.          FEES AND PAYMENT

5.1        Fees. Employer shall pay YouScience the fees applicable to the Services provided to Employer by YouScience under this Agreement (the “Fees”) as set forth in the applicable Order Form(s) and any invoicing schedule(s) therein, without offset or deduction. If no payment terms are stated in the Order Form, YouScience will invoice Employer annually prior to the use of the Services or as the Parties otherwise agree in writing. Employer shall make all payments hereunder in US dollars within thirty (30) days of Employer’s receipt of an invoice. If Employer fails to make any payment when due, without limiting YouScience’s other rights and remedies, if such failure to pay is not promptly remedied, YouScience may suspend the Services and Employer’s access to any portion or all of the Services until such amounts are paid in full.

5.2        Changes. The Fees set forth in an Order Form shall remain in effect during the initial term of such Order Form. Any changes to the Fees applicable during any renewal of an Order Form shall be negotiated in good faith and applicable only if agreed in writing by the Parties.

5.3        Taxes. Fees and other amounts payable by Employer under this Agreement are exclusive of any taxes and similar assessments. Employer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by Employer hereunder, other than taxes imposed on YouScience’s income. If Employer is exempt from taxes pursuant to applicable law, Employer is responsible for providing proof of such exemption to YouScience.

6.          WARRANTY DISCLAIMER      In addition to, and not in lieu of, any warranty disclaimers set forth in this Agreement or the attached Schedules:  THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND WITHOUT ANY CONDITION OR WARRANTY, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING NO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. YOUSCIENCE DOES NOT WARRANT THAT THE SERVICES, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET EMPLOYER’S, OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE.  YOUSCIENCE DOES NOT REPRESENT THAT ANY DATA, COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER INFORMATION THAT YOUSCIENCE COLLECTS, STORES, OR TRANSMITS IN CONNECTION WITH EMPLOYER’S ACCESS TO AND USE OF THE SERVICES WILL NEVER BE ERRONEOUSLY DELETED OR MISDELIVERED.

7.          CONFIDENTIALITY     For certain products or services that YouScience may make available to Employer in connection with the Services, the Parties will not need to exchange confidential information.  If Employer subscribes to a product that includes the provision or use of confidential information by either Party, the Parties respective obligations with respect to such confidential information shall be set forth in the Product Specific Terms in Schedule A attached hereto.  If the Product Specific Terms in Schedule A for a specific product do not include confidentiality provisions, the Parties agree not to share confidential information with each other.

8.          TERM AND TERMINATION

8.1        Term. This Agreement shall become effective as of the effective date specified in the applicable Order Form. If the applicable Order Form does not specify an effective date, then this Agreement shall become effective on the date of the applicable Order Form, and if the applicable form is not dated, then this Agreement shall become effective on the date the Employer first accesses the Services, and shall remain in effect until the end of the latest term specified in any applicable Order Form (the “Term”).

8.2        Termination. In addition to any other express termination right set forth in this Agreement:

(a)   YouScience may terminate this Agreement and any applicable Order Form, effective on written notice to Employer, if: (i) Employer fails to pay any amount when due hereunder, and such failure continues for more than thirty (30) days after YouScience’s delivery of written notice thereof; (ii) YouScience determines, in its sole discretion, that Employer, its business, or any content included by Employer on its Employer Profile is not suitable for the Services or appropriate for individuals who may have access to or view Employer’s Employer Profile, or (iii) Employer breaches any of Employer’s obligations under this Agreement; and

(b)   Employer may terminate this Agreement, effective on written notice to the YouScience, if YouScience materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for a period of thirty (30) days after Employer provides YouScience with written notice of such breach.

8.3        Effects of Termination. Without limiting any other effects of termination set forth in this Agreement, upon termination of this Agreement or an Order Form, as applicable, Employer shall immediately discontinue access to and use of and shall have no further right to access or use the applicable Services. Termination will not affect Employer’s obligations to pay any and all Fees for Services that have already been provided.  If termination is pursuant to 7.2(b), YouScience will provide a pro-rata refund for any remaining period for which Employer has already made payment.  Termination pursuant to 7.2(a) above will not absolve Employer of any payment obligations, and YouScience shall be entitled, in its sole discretion, to retain all Fees paid prior to termination.   Further, termination shall not relieve Employer of any liabilities or obligations arising before the date of such termination. 

9.          INDEMNIFICATION

9.1        Infringement Indemnification. YouScience shall indemnify, defend, and hold Employer harmless from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, damages, liabilities and any and all legal (including reasonable attorneys’ fees), accounting, and other fees, costs, and expenses reasonably incurred in connection therewith that are sustained by, incurred by, or asserted against Employer and arise out of a third party claim that the Services infringe or misappropriate such third party’s Intellectual Property rights.

9.2        General Indemnification.   Employer shall indemnify, defend, and hold YouScience harmless from and against any and all losses, settlements, claims, actions, suits proceedings, investigations, judgments, awards, damages, liabilities and any and all legal (including reasonable attorney’s fees), accounting, and other fees, costs, and expenses relating to any third-party allegation or legal proceeding arising out of or related to (i) information, logos, images, or other intellectual property Employer uploads or includes on YouScience’s platform, including as a part of Employer’s Employer Profile; or (ii) any improper use of the Services or any breach of this Agreement by Employer. 

10.        LIMITATION OF LIABILITY. 

10.1     General. EXCEPT AS NOTED BELOW IN SECTION 9.2 TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) NEITHER PARTY SHALL BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH OTHER TYPES OF DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) NEITHER PARTY SHALL BE HELD LIABLE FOR DAMAGES UNDER THIS AGREEMENT OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THIS AGREEMENT FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAYABLE TO YOUSCIENCE BY EMPLOYER UNDER THIS AGREEMENT IN THE TWELVE MONTHS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.

10.2     Exclusions. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY OF THE FOLLOWING: (i) EMPLOYER’S OBLIGATIONS TO PAY ALL FEES DUE HEREUNDER; (ii) ANY DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (iii) AN INFRINGEMENT CLAIM; OR (IV) ANY CLAIM OR DAMAGE ARISING OUT OF A BREACH OF SECTION 3.1(b).

11.        MISCELLANEOUS

11.1     Relationship of the Parties. It is expressly agreed that the Parties are independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party.

11.2     No Third-Party Beneficiaries. The rights, remedies, obligations, and liabilities arising under or in connection with this Agreement are solely intended to apply to the Parties to this Agreement and their respective successors and assigns.

11.3     Attorneys’ Fees. The prevailing Party in any legal suit, action, or proceeding arising under this Agreement shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees, expenses, and court costs.

11.4     Amendment and Modification. YouScience may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the data such notice is given unless Employer informs YouScience that Employer does not accept such amendments. In the event Employer informs YouScience that Employer does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect and YouScience shall have the right to terminate this Agreement upon written notice to Employer. No other modification of this Agreement shall be valid except by written amendment signed by YouScience’s and Employer’s authorized representatives.

11.5     Waiver. No waiver by a Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving Party and shall only operate as a waiver of the failure, breach, and/or default expressly identified by such written waiver. For clarity, any waiver of a right, remedy, power, or privilege shall not preclude the waiving Party from exercising any other right, remedy, power, or privilege.

11.6     Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

11.7     Assignment. Employer shall not assign any of Employer’s rights or delegate any of Employer’s obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of YouScience. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder arising prior to such assignment or delegation. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

11.8     Force Majeure. In no event shall YouScience be liable to Employer, or be deemed to have breached this Agreement, for any failure or delay in performing YouScience’s obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond YouScience’s reasonable control, including acts of God, flood, fire, earthquake, explosion, epidemic or pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or other similarly disruptive events, whether or not such events are of a similar type or nature to the previously listed events.

11.9     Survival. The provisions of this Agreement which by their nature are intended to survive the expiration or earlier termination of this Agreement shall continue as valid and enforceable obligations of the Parties notwithstanding any such termination, cancellation, completion, or expiration. Without limiting the foregoing, the provisions regarding confidentiality, indemnity, and limitations of liability shall survive the expiration or earlier termination of this Agreement.

11.10  Additional Terms. Employer agrees that, in addition to this Agreement, Employer’s access to and use of the Services are governed by the Online Terms, as well as any additional terms of use, terms of service, end user license agreement, or click-through provisions governing the use of the Services published, presented, or otherwise made available to Employer or Employer’s Personnel, either directly or through the Services (collectively, the “Additional Terms”). 

11.11  Conflicts. Except as otherwise expressly provided in this Agreement, including, without limitation, in any applicable Product Specific Terms included in Schedule A, in the event of any inconsistency between the statements made in the body of this Workforce & Careers Awareness Agreement, the Additional Terms, an Order Form, or any other documents incorporated herein by reference, the following order of precedence governs: (i) this Workforce & Careers Awareness Agreement including Schedule A; (ii) the Additional Terms; (iii) the applicable Order Form unless the Order Form expressly provides that it is modifying this Agreement and is signed by YouScience’s and Employer’s authorized representatives, in which case the Order Form shall control; and (iv) any other document incorporated herein by reference unless such document expressly provides that it is modifying this Agreement and is signed by YouScience’s and Employer’s authorized representatives.

11.12  Notices. All notices or other communications permitted or required to be given under this Agreement shall be sent by email to the email address provided by the other Party for such purpose and shall be deemed given when sent. Notices to YouScience shall be sent to legal@youscience.com. Employer shall provide an email address for notices under this Agreement. If Employer fails to provide an email address for notices, YouScience may provide notices under this Agreement by any means reasonably likely to provide Employer with actual notice thereof.

11.13  Electronic Communications. Each Party consents to receive communications from the other Party in electronic form. Further, Employer agrees that all notices, disclosures, and other communications that YouScience provides to Employer electronically satisfy any legal requirement that such communications would satisfy if they were provided in writing. The foregoing does not affect either Party’s non-waivable rights.

11.14  Commercial Software. As defined in FAR section 2.101, the Services and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely on the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11.15  Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah, without giving effect to any choice of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the licenses granted hereunder will be instituted exclusively in the applicable federal or state courts located in Salt Lake County.

11.16  Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications or agreements with respect to the subject matter hereof. No usage of trade, or other regular practice or method of dealing between the Parties or others, will be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement. If any document issued by Employer includes any reference that is inconsistent with the provisions of this Agreement, such references shall be null and void despite no objection being stated by YouScience.

Schedule A

Product Specific Terms

Employer Spotlight – Specific Terms

The following terms apply to Employer Spotlight Services, and are in addition to those set forth in the body of the Workforce & Career Awareness Agreement. 

Exposure.  YouScience does not promise or guarantee any specific number of views, impressions, clicks, or interactions with an Employer Profile.  A link to the Employer Profile will be displayed to Brightpath users based upon a combined correlation of (i) best-fit career (job title) matches. (ii) industry certification matches, and (iii) geographic matches between Employer and Brightpath users.  The matching and spotlight of Employer is not exclusive to Employer, and may contain other employers.  Where the number of relevant employers exceeds the number of display slots available, specific employers will be rotated for display.