Lattice Terms of Service

LAST UPDATED: August 6, 2018

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Welcome to Lattice. By subscribing to the Service (defined below), or by checking or selecting an “I agree” or similarly worded box or button indicating your acceptance of these Terms of Service, you (“Customer”) agree to be bound by these Terms. If you are accepting these Terms on behalf of a company or other entity, you represent that you have the authority to, and do hereby, bind such entity by these Terms, and references to “Customer,” “you” or “your” will refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and neither you nor such entity may use the Service.

In these Terms of Service (the “Terms”), references to “Company,” “we,” “us,” and “our” refer to Degree, Inc., a Delaware corporation (d/b/a Lattice), and references to the “Service” refer to the online service(s) subscribed to by you and made available by us, which may include premium features or other related services, and including any offline components and any content, software, data and information provided by us or our licensors through or in connection with the foregoing. We and you are each sometimes referred to herein as a “party.”

1. PROVISION OF THE SERVICE

1.1 Subscription. Access to the Service is purchased on a subscription basis through our online ordering system, or by a written order form signed by both parties, or in another manner authorized by us in writing (in each case, an “Order Form”). Upon our acceptance of an Order Form submitted by you, or as otherwise agreed by the parties in writing, these Terms constitute your agreement with us, and the terms of such Order Form are hereby incorporated herein. Subject to these Terms, we hereby grant you a non-exclusive, non-sublicensable, non-transferable license, during the term of these Terms, to access and use the Services solely for your internal business purposes and in accordance with any documentation made available by us relating to the Service (“Documentation”), and we will use commercially reasonable efforts to make the Service available to you.

1.2 Technical Support. Subject to the terms hereof, we will provide you with reasonable technical support services in accordance with our standard practice.

1.3 Updates. We reserve the right to update, upgrade or otherwise modify the Service at any time and with or without notice; provided, however, that we will provide you with at least forty-five (45) days advance notice of any modification that materially diminishes or reduces the functionality of the Service. We may suspend provision of the Service, at any time with or without notice, for security or maintenance purposes or as required by applicable law, provided that we will use commercially reasonable efforts to give you prior notice of any suspension and to minimize the duration of any such suspension.

1.4 Third-Party Services. The Service may allow you to connect to or otherwise interact with one or more third-party service providers (for example, a human resources information system, or “HRIS”) for purposes permitted by the Service. Such access may be implemented, suspended or terminated by us from time to time in our sole discretion. It is your sole responsibility to enter into and maintain any agreement between you and any such third party for the provision of their services to you or otherwise, and we are not hereby made a party to such agreement. To the extent you or your representatives or Authorized Users use the Service to transmit any Customer Content (defined below) to any such third party, you hereby direct and authorize us to provide such Customer Content to such third party. To the extent you or your representatives or Authorized Users use the System to connect or otherwise interact with any such third party, or have identified or designated any such third party as your third-party service provider, you further authorize us to allow such third party to access your Customer Content as necessary for us to provide the Service to you. You acknowledge and agree that such third parties are not our agents, that we are not responsible for their services, actions or omissions or for their maintenance or treatment of your Customer Content and will not be liable for any damage or loss caused thereby, that access to such third party via the Service does not imply any endorsement by us, and that any of your Customer Content submitted to such third parties via the Service will be governed by your agreement (if any) with such third party.

2. TERM AND TERMINATION

2.1 Term. With respect to each Order Form, unless sooner terminated as provided in this Section 2, these Terms will be effective beginning on the Effective Date and remain in effect until these Terms or such Order Form is terminated in accordance with these Terms. The “Effective Date” means the Effective Date specified in the applicable Order Form or, if not so specified, the first date on which the applicable Order Form is submitted by you and accepted by us or otherwise agreed to by the parties in writing. The “Initial Service Term” means the period from the Effective Date through the Initial Service Term specified in the applicable Order Form or, if not so specified, the one (1) month period immediately following the Effective Date.

2.2. Termination for Breach. Either party may terminate these Terms or any Order Form if the other party materially breaches these Terms and fails to cure such breach within thirty (30) days after it receives written notice of such breach. A material breach includes, without limitation, a failure to make a full and timely payment, or a performance of any of the acts contemplated in Section 4.1.

2.3. Auto-Renewal. With respect to each Order Form, after the Initial Service Term, such Order Form and these Terms will remain in effect for consecutive Renewals Terms until terminated as provided herein. A “Renewal Term” means that period immediately following the Initial Service Term and each Renewal Term, which period is of the same duration as the Initial Service Term. Either party may terminate these Terms or such Order Form for convenience by giving the other party written notice of such termination at least thirty (30) days prior to the end of the then-current Initial Service Term or Renewal Term, in which case such termination will be effective at the end of such Initial Service Term or Renewal Term.

2.4. Changes. Without limiting the foregoing, if we provide you with notice of (i) a modification to the Service that materially diminishes or reduces the functionality of the Service, or (ii) any amendment to these Terms by us, then in either case you may terminate these Terms or the applicable Order Form by giving us at least thirty (30) days advance written notice of such termination, such notice to be provided within thirty (30) days after we provide you with notice of such modification or amendment.

2.5. Effect of Termination. Upon termination of these Terms or an Order Form, any related prepaid Fees for Services not yet provided will be refunded to you. Sections 2 (Term and Termination), 3 (Ownership), 6 (Confidentiality), 7 (Payment of Fees) (with respect to Fees accrued prior to termination), 8 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (Dispute Resolution), and 12 (General) will survive any termination of these Terms. Termination of these Terms with respect to one Order Form does not terminate these Terms with respect to any other Order Form.

3. OWNERSHIP

3.1. Company Properties. As between you and us, the Service and Software and all content therein (excluding Customer Content) (collectively, the “Company Properties”), and all and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein (registered or unregistered), are the exclusive property of us and our suppliers. All rights in and to Company Properties not expressly granted to you in these Terms are reserved by us and our suppliers. You will not copy, transmit, transfer, modify or create derivative works of the Company Properties, and will not reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Company Properties. Any open source or other software included in the service is licensed subject to the additional terms of the applicable open source or other license conditions and/or copyright notices located or referenced in the Documentation, which additional terms are hereby incorporated into these Terms.

3.2. Customer Content. As between you and us, you are the owner of the content, information, and other data uploaded by you to the Service or Software, or otherwise provided or made available by you or your representatives or third-party service providers in connection with your use of the Service (collectively, “Customer Content”). You hereby grant us a non-exclusive, worldwide, royalty-free and fully paid license, during the term of these Terms, to use the Customer Content as necessary for the purpose of providing the Service to you.

3.3. Anonymized, Aggregated Data. We may collect, use and share with third parties any data or information generated by or submitted or uploaded to the Service (including Customer Content) in an anonymized, aggregated form for any purpose.

3.4. U.S. Government Restricted Rights. The Service and Software are commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the Service and Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in these Terms.

CUSTOMER RESPONSIBILITIES

4.1. Use Restrictions. You will not, and will not permit any Authorized User to: (a) permit any person or entity to access the Service, other than Authorized Users to the extent authorized under these Terms; (b) use the Service except in accordance with these Terms, the Documentation and applicable law; (c) modify, adapt, alter, copy or translate the Service; (d) sell, resell, license, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (e) use the Service to store or transmit any “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (f) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of third-party privacy or other rights; (g) access the Service in order to build a competitive product or service; (h) interfere with or disrupt the integrity or performance of the Company Properties; or (i) attempt to gain unauthorized access to the Company Properties.

4.2. Required Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You are responsible for maintaining the security of the Equipment.

4.3. Export Compliance. You represent that you are not named on any United States government denied-party list. You agree not to export, re-export, or transfer, directly or indirectly, any technical data acquired from us, or any products utilizing such data, in violation of United States export laws or regulations. You will not permit any Authorized User to access or use the Service (i) if such person is a resident of a country embargoed by the United States, (ii) if such person is a foreign person or entity blocked or denied by the United States government, or (iii) otherwise in violation of United States export laws or regulations.

5. CUSTOMER USERS & REGISTRATION

5.1. Administrative User. With respect to each Order Form, you will have registered with the Service and will identify an administrative contact, including user name and password, for your account. You are required to maintain and promptly update all information provided by you during your registration process, and any other information you provide to us, so that it remains true, accurate, up-to-date and complete at all times. You represent and warrant that all such information provided by you is true, accurate and complete.

5.2. Authorized Users. For purposes of these Terms, “Authorized User” means each of your employees, contractors and other individuals whom you identify to us by name as being authorized to use the Service on your behalf (including by requesting a username and password for such individual with respect to the Service.) A unique username and password will be provided for each Authorized User to enable such Authorized User to access the Service on your behalf in accordance with these Terms. We reserve the right to change or update such usernames and passwords in our sole discretion from time to time. Each such username and password may not be shared and may only be used to access the Service during one (1) concurrent login session. You (a) will provide us with information and other assistance as necessary to enable us to establish such usernames and passwords; (b) will verify all requests for such usernames and passwords; (c) are responsible for maintaining the confidentiality of all such usernames and passwords; (d) are solely responsible for all activities that occur under such usernames; and (e) will notify us promptly of any actual or suspected unauthorized use of your account, or such usernames or passwords, or any other breach or suspected breach of these Terms. We reserve the right to terminate access to the Service via any username or password that we believe may have been used by an unauthorized third.

6. CONFIDENTIALITY

6.1. Each party may have access to the other party’s information, which will be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, Personal Information (defined below), business plans and any information which provides a competitive advantage. All non-public aspects of the Service are deemed our confidential information. The receiving party will use the same degree of care as it uses to protect its own confidential information of a like nature, but not less than a reasonable degree of care, to (a) prevent use or copying of the disclosing party’s confidential information for any purpose other than to perform its obligations or exercise its rights as provided under these Terms, and (b) prevent disclosure of the disclosing party’s confidential information other than to its employees (or agents bound by similar confidentiality obligations) with a need to know for such purpose. Confidential information will remain the property of the disclosing party and will be returned or (along with all copies) destroyed upon request, at which time the receiving party will provide to the disclosing party a written affidavit certifying such return or destruction. Without limiting any other provision of these Terms, with respect to its obligations under this Section 6, the receiving party will be responsible for the acts and omissions of its employees, contractors and agents to the same extent as if those acts and omissions were those of the receiving party.

6.2. Information will not be deemed confidential information hereunder if it: (i) is not Personal Information and is or becomes generally known to the public through no fault of the receiving party, its affiliates or their agents or representatives; (ii) is or becomes known to the receiving party without restriction from a third party other than as a result of breach of contract or wrongful or tortious act; or (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party’s confidential information. Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure. For purposes hereof, “Personal Information” means any non-public personal information, personally identifiable information, or information relating to an identified or identifiable natural person, where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

7. PAYMENT OF FEES

7.1. Fees. You will pay us the fees set forth in the applicable Order Form in accordance with the terms therein (the “Fees”). Any Fees per Authorized User will apply with respect to the initial number of Authorized Users identified in the Order Form, plus any additional actual Authorized Users (on a pro-rated basis based on when such additional Authorized Users are added.) With respect to any Order Form, we may increase the Fees in effect after the applicable then-current Initial Service Term or Renewal Term by giving you at least forty-five (45) days advance written notice of such increase.

7.2. Payment. You hereby authorize us and our third-party payment service providers to collect all due and payable Fees using the credit card or other payment method you provide to us. You must keep the payment method and other billing information you provide to us current at all times. Any change in such method or information will not affect charges we submit via the prior payment method and information before we reasonably could act on the change. Except as otherwise set forth in the applicable Order Form or as otherwise agreed by the parties in writing, all Fees and any other applicable charges are due and payable to us within thirty (30) days after the date of our applicable invoice. All Fees and other amounts are payable in United States Dollars.

7.3. Late Payments. If you fail to make payments when due under these Terms, we may suspend provision of the Service until payment is received and may charge you a late fee on the overdue amount from the date such amount became due at the lesser rate of 1.5% per month or the maximum rate permitted by applicable law, together with our costs incurred in collecting such payment. We are entitled to withhold performance and suspend provision of the Service until all amounts due are paid in full.

7.4. Taxes. Fees do not include any taxes, levies, duties, export or import fees, or other governmental assessments of any nature, including but not limited to value-added sales, use or withholding taxes, imposed or assessed by any jurisdiction (collectively, “Taxes”). You are responsible for the payment of all Taxes (other than Taxes assessable against us based on our income) associated with your subscription to and use of the Service. If we have a legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

8. WARRANTY DISCLAIMER

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS”, AND WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.

9. INDEMNIFICATION

9.1. By Us. We will defend, indemnify, and hold harmless you and your officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys’ fees) arising out of any claim by any third party to the extent such claim alleges that the Service or Software (in each case as made available to you for use in accordance with these Terms) directly infringes or misappropriates any U.S. copyright or any trade secret recognized under the Uniform Trade Secrets Act. Notwithstanding the foregoing, we will have no obligation under this paragraph and will not otherwise be liable with respect to: (i) use of other than the unaltered version(s) of the Service and Software made available by us; (ii) use of the Service or Software in combination with any hardware, software, data, content, or other component not provided by us (other than Equipment required for use of the Service or Software as permitted hereunder); (iii) Customer Content; or (iv) use of the Service or Software other than in accordance with these Terms and the Documentation.

9.2. By You. You will defend, indemnify and hold harmless us and our officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys’ fees) arising out of any claim by any third party to the extent such claim is based on or related to your use of the Service, your Customer Content, or your violation of these Terms, applicable law or the rights of any third party.

9.3. Procedures. The person or entity seeking indemnification hereunder (the “Indemnified Person”) will provide detailed written notice to the indemnifying party promptly after learning of the claim, and the indemnifying party will not be obligated to indemnify to the extent it is materially prejudiced by any delay in such notice. The indemnifying party will have the right to assume control of the defense and settlement of the claim, in which case the Indemnified Person (i) will provide reasonable assistance at the indemnifying party’s reasonable expense and (ii) may employ counsel at its own expense. If a party believes its intellectual property is or may become the subject of a claim of infringement or misappropriation, the party may, at its option and expense, procure for itself and/or the Indemnified Person the right to use the intellectual property, or modify or replace the intellectual property to make it non-infringing and functionally equivalent. If such party concludes that neither of these alternatives is reasonably available, it may require the return or destruction of its intellectual property upon its written request and the termination of these Terms to the extent performance is based upon or involves the use of such intellectual property.

10. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO OBLIGATONS UNDER SECTION 7 (PAYMENT OF FEES), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INITIAL EVENT CAUSING OR RESULTING IN SUCH LIABILITY.

11. DISPUTE RESOLUTION

11.1. Arbitration. The parties will attempt in good faith to resolve any dispute arising out of or relating to the Service or these Terms by negotiation. Any such dispute not so resolved will be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (except to the extent that such rules are inconsistent with the provisions set forth herein). Such dispute will be heard in San Francisco County, California, by one neutral arbitrator (unless the amount in dispute is greater than $500,000, in which case three arbitrators will be used). The arbitrator(s) will have the authority to award compensatory damages only, and will not have the authority to consolidate actions or claims. The award rendered by the arbitrator(s) will be final and binding, and judgment upon such award may be entered in any court having jurisdiction thereof. Notwithstanding any other provision herein, any demand by a party for arbitration must be made in writing to the other party within the period prescribed by the state or federal statute of limitations applicable to the claim upon which the demand is based. If demand is made after such period, the claim will be void and deemed waived. The existence, conduct and content of such arbitration will be kept confidential, and neither party will disclose the same to any person other than its attorneys, auditors, financial advisors, assignees or potential assignees, except as may be required by law or governmental authority or for financial reporting purposes.

11.2. Individual Actions Only. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS OR ACTIONS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER CLAIMS OR ACTIONS ARE NOT PERMITTED.

11.3. Limitations Period. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to these Terms or the use of the Service must filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.

12. GENERAL

12.1. Notice. All notices and other communications given or made pursuant to these Terms will be in writing and will be deemed effectively given upon the earliest of (i) actual receipt, (ii) personal delivery to the recipient, or (iii) any of the following if addressed to the recipient as set forth below: (a) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. For purposes hereof, each recipient’s address and email address will be as set forth in the Order Form (or, with respect to your addresses, as provided by you during registration or onboarding with the Service), as such contact information may be subsequently modified by the recipient by written notice given in accordance with this paragraph. We may provide notices to you using the electronic messaging system included in the Service, in which case such notice will be deemed given when sent, if sent during your normal business hours, and if not sent during such normal business hours, then on your next business day.

12.2. Assignment. Neither party may assign or otherwise transfer (whether by operation of law, merger, consolidation, change of control or otherwise) these Terms or any rights or obligations hereunder without the written consent of the other party, except that either party may, without such consent, assign or transfer these Terms to a purchaser of all substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise. Any assignment or transfer, or attempted assignment of transfer, in violation of these Terms is void ab initio. These Terms are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

12.3. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations hereunder resulting from any cause beyond such party’s reasonable control, including weather, fire, floods, labor disputes, riots or civil disturbances, acts of government, and acts of war or terrorism.

12.4. Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

12.5. Injunctive Relief. Notwithstanding any other provision hereof, either party may seek to enforce its rights hereunder with respect to the protection of its confidential information or intellectual property through temporary or permanent injunctive relief, which will be in addition to any other available relief and which will not require a bond or security. Each party acknowledges that any breach by a party of its obligations hereunder with respect to the confidential information or intellectual property rights of the other party might constitute immediate, irreparable harm to such other party for which monetary damages would be an inadequate remedy.

12.6. Relationship of Parties. Neither these Terms nor the cooperation of the parties contemplated under these Terms will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.

12.7. Waiver. Any provision of these Terms may be waived only in a writing signed by the party to be bound thereby. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.8. Severability. If any provision of these Terms is, for any reason, held to be invalid, illegal, or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

12.9. Entire Agreement. These Terms (including any Order Form incorporated herein) constitutes the entire agreement of the parties relating to the subject matter hereof and supersedes all prior or contemporaneous communications, understandings and agreements, oral or written, relating to such subject matter.

12.10. Construction. These Terms will be construed as a whole, according to its fair meaning, and not in favor of or against any party. Headings are used for reference purposes only and should be ignored in the interpretation of these Terms. All pronouns will be interpreted to refer to the masculine, feminine or neutral gender as appropriate. Whenever the words “include,” “includes” or “including” are used in these Terms, they will be deemed to be followed by the words “without limitation”.

12.11. Amendments. We may amend these Terms by providing you with at least forty-five (45) days advance notice of such amendment. With respect to each Order Form, such amendment will be effective beginning on the latest of the following: (i) the date that is forty-five (45) days after the date of such notice; (ii) the effective date specified in the notice; or (iii) the first day following the end of the applicable then-current Initial Service Term or Renewal Term. Except as otherwise explicitly set forth herein, these Terms may be amended only in a writing signed by both Parties.