Developer Sandbox Terms of Use
These Developer Sandbox Terms of Use (the “Agreement”) governs a developer’s (“Developer”) acquisition and use of Employ, Inc.’s (together with its Affiliates as defined herein, “Employ”) developer sandbox account for purposes of developing an integration to Employ’s products. By requesting and using an Employ sandbox account (“Sandbox Account”), the Developer agrees to the following terms.
Employ’s direct competitors are prohibited from accessing the Sandbox Account provided by Employ, except with Employ’s prior express written consent. In addition, the Sandbox Account may not be accessed for the exclusive purpose of monitoring performance, or functionality, or for any other benchmarking or competitive purposes.
These Agreement was last updated September 12, 2024. Employ reserves the right to periodically modify this Agreement upon written notice to Developer, and such modification will become effective thirty (30) days after such notice. In the event that this Agreement is updated, Partner will have the option to terminate the Agreement for a period of thirty (30) days after notice is provided with immediate effect.
1. License Grant. Subject to Developer compliance with the terms and conditions of this Agreement, Employ grants Developer a non-exclusive, non-sublicensable, non-transferable, revocable and limited license to use the Sandbox Account during the term identified in this Agreement to test integration with Employ’s software platform (the “Platform”), and provide account demonstrations to prospective clients. Any additional usage rights made available to Developer shall be subject to the terms of this Agreement.
2. Limitations. Developer agrees that: (i) Employ has no obligation to maintain test data on its servers and will delete from its systems in connection with the Employ sandbox account provided to Developer and Developer acknowledges that Employ may delete data in a Sandbox Account on regular intervals without notice; (ii) only simulated, test data may be submitted or uploaded on or through the Sandbox Account, i.e., real names, address, etc. may not be used for testing purposes; (iii) load testing the Sandbox Account or the Platform is not permitted; (iv) Developer shall not submit or upload genuine customer data through the Sandbox Account; and (v) Employ will not monitor or validate any information submitted or uploaded by Developer on or through the Sandbox Account.
3. Term & Termination.
3.1 Term. This Agreement will commence as of the date that Employ provisions the Sandbox Account to Developer (“Effective Date”) and will remain in effect for one year unless terminated earlier in accordance with its terms. It will automatically renew for subsequent annual terms, unless either party notifies the other of its intent not to renew the Agreement at least ninety (90) days prior to the expiration date.
3.2 Termination. Either party may terminate this Agreement upon thirty days prior written notice to the other party (i) due to an uncured material breach of the other party; (ii) due to the insolvency or bankruptcy of the other party; or (iii) in the event of a change in the control or business operations of a party that the other party reasonably deems would affect such party’s ability to perform its obligations under this Agreement. Employ may in its sole discretion terminate this Agreement at any time.
3.3 Effect of Termination. Upon termination of this Agreement, the following will occur: (i) Developer will return to Employ the materials and information provided under this Agreement; and (ii) all rights granted to Developer under this Agreement, including but not limited to the license to Sandbox Account, will immediately cease. In no event may Developer use any information it learns through its performance under this Agreement in a manner that could be detrimental to Employ.
5. Confidentiality. Each party agrees that all non-public information it obtains (Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified in writing as confidential at the time of disclosure, is identified as confidential in writing within thirty (30) days of the disclosure, or is of a nature that a reasonable person with knowledge of the Disclosing Party’s business would understand to be confidential. For the avoidance of doubt, Confidential Information includes all Developer data, code, inventions, know-how, business, technical, financial and personal data the Receiving Party obtains from the Disclosing Party. Except as provided herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. The Receiving Party’s non-use and non-disclosure obligations hereunder will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party without restriction on use and/or disclosure from a third party; (iv) is independently developed by or for employees of the Receiving Party without use of or reference to any Confidential Information of Disclosing Party; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
5. Intellectual Property. Each Party owns all right, title and interest in and to its proprietary software, products, and processes. Developer will take no action inconsistent with such right, title and interest and agrees to always use Employ’ copyright notice when applicable. Developer agrees not to challenge or make claims against any Employ’ products or services provided under this Agreement. Except for the rights and licenses expressly granted to Developer in this Agreement, Employ shall retain all right, title and interest in and to the Platform, Sandbox Account, Platform API’s, Platform documentation, Sandbox Account documentation, Employ intellectual property, and any derivatives of the foregoing and/or intellectual property associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Developer or any other entity or person under this Agreement. Developer will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Platform or related technology.
6. Publicity. Employ grants to Developer a non-exclusive, royalty-free, limited and non-transferable license to use Employ’s trademarks, logo, URLs and associated materials to advertise, promote, market, demonstrate and offer the Platform with Employ’s advance written permission in each instance of use. Developer grants Employ a non-exclusive, royalty-free, limited and non-transferable license to (i) market and distribute the Developer’s trademarks, logo, URLs, and associated materials, and (ii) to advertise, promote, market, demonstrate and offer the Developer’s services and products to individuals, during the term of this Agreement.
7. No Disparagement or Misappropriation. At no time during the term of the Agreement and for a period of two years after the termination of the Agreement, neither party shall or permit its employees and agents to (i) make any statements, or take any other actions whatsoever to disparage, defame, sully or compromise the goodwill, name, brand or reputation of the other Party or any of its affiliates; or (ii) take any action that would likely injure, hinder, or interfere with the other Party’s business relationships.
8. Representations and Warranties. THE SANDBOX ACCOUNT IS PROVIDED BY EACH PARTY UNDER THIS AGREEMENT ARE PROVIDED “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8 THE PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY SOFTWARE AND SERVICES PROVIDED HEREUNDER, AND ALL SUCH OTHER WARRANTIES ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
9. Data Protection and Information Security.
9.1 Data Protection. Each Party must ensure compliance with applicable state or national data protection laws at all times during the term of this Agreement. The Parties may enter into additional data sharing agreements in the event they share personal data from certain countries.
9.2 Security. Developer is solely responsible for the security of data residing on server(s) owned or operated by Developer, or a third party designated by Developer (e.g., a web hosting company, processor, or other service provider). Developer agrees that Developer will utilize commercially reasonable security practices in connection with accessing the Sandbox Account and will comply with all applicable Employ security protocols and security advisories in effect during the term of this Agreement. Developer acknowledges that Employ shall not be liable for any improperly processed or unauthorized transactions or illegal or fraudulent access to Developer’s Sandbox Account.
10. Indemnity.
10.1 Employ Indemnification. Employ will indemnify, defend, and hold Developer harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties pursuant to such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Platform infringes or misappropriate such third party’s patent, trademark, trade secret, copyright, or other intellectual property rights. Employ’s obligations pursuant to this Section 10.1 will not apply, however, to the extent that such claim is caused by: (i) Developer’s use of the Platform other than in accordance with the terms of this Agreement; (ii) Developer’s failure to use or implement corrections or enhancements to the Platform made available free of charge to Developer by Employ, (iii) portions or components of the Platform resulting in accordance with Developer specifications in Professional Platform Deliverables, (iv) modification of the Platform that have not been performed by or on behalf of Employ, and/or (v) combination of the Platform with other products, services, processes or materials not supplied by Employ (including, without limitation, Developer data). “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.
10.2 Developer Indemnification. Developer will indemnify, defend, and hold Employ harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties resulting from such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Developer represented the Platform in a manner inconsistent with the Agreement, Platform documentation, or Employ’s express instructions.
11. Limitation of Liability.
11.1 Consequential Damages. Except with respect to breaches arising out of a Party’s gross negligence, willful misconduct or fraud, neither party will be liable for indirect, incidental, special, consequential or punitive damages of any nature (whether in contract, tort, or otherwise).
11.2 Limitation of Liability. EXCEPT WITH RESPECT TO BREACHES ARISING OUT OF EMPLOY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, EMPLOY’S AGGREGATE LIABILITY FOR ALL MATTERS ARISING FROM, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, OTHER THAN CLAIMS FOR PAYMENT UNDER THIS AGREEMENT, ONE HUNDRED US DOLLARS ($100.00).
12. Miscellaneous.
12.1 Expenses. Unless otherwise agreed to by the Parties, each Party will be responsible for costs and expenses incurred in connection with this Agreement.
12.2 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the Sandbox account and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of this Agreement.
12.3 Amendment. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.
12.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to:
Employ: 1730 Blake Street, Suite 445, Denver, CO 80202
Attn: Legal
legal@employinc.com
Developer: The address identified in the applicable partner registration form or Partner Agreement.
All Notices must be delivered by personal delivery, email or certified or registered mail (in the latter case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party (or upon delivery, if by email); and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.5 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.
12.6 Waiver. No failure to exercise, or delay in exercising, any rights, powers or remedies arising from this Agreement will operate or be construed as a waiver of the rights of such a party to demand full compliance with the terms of this Agreement.
12.7 No Partnership. No agency, Partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
12.8 Severability. If any provision of this Agreement is declared invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability, the remainder of the agreement will remain valid and enforceable to the fullest extent permitted.
12.9 Dispute Resolution.
12.9.1 In the event of a conflict, the Parties will work in good faith to resolve the conflict between the developer partnership manager of each Party within thirty (30) days. In the event that the developer partnership managers are unable to resolve the conflict within thirty (30) days, each party will refer the conflict to the applicable vice president at each Party for resolution. If the vice presidents are unable to resolve the conflict within ten (10) days, the Parties will refer the conflict to binding arbitration administered as described in section 12.9.
12.9.2 Any dispute, claim or controversy arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of three (3) arbitrators. The place of arbitration will be San Francisco, CA. The language to be used in the arbitral proceedings will be English. Judgement on the award may be entered in any court having jurisdiction.
12.9.3 THE AGREEMENT WILL BE GOVERNED BY THE LAWS OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
12.10 Cumulative Remedies. Except as otherwise expressly provided in this Agreement, all remedies in this Agreement are cumulative and in addition to (not in lieu of) any other remedies available to a Party at law or in equity.
12.11 Assignment. Neither party may assign any part of this Agreement without the other party’s prior written consent. Any other attempt to transfer or assign is void.
12.12 Compliance with Laws. Developer will comply with all laws, policies, guidelines, regulations, ordinances, rules applicable to Developer. Developer shall comply with all the current policies, procedures and guidelines of Employ governing the Sandbox Account as provided by Employ to Developer from time to time. Employ reserves the right to amend, modify or change such policies, procedures, and guidelines at any time. Notwithstanding anything to the contrary, Developer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Developer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Employ are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
12.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Please contact Employ with any questions regarding this Agreement.
