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MBC STANDARD TERMS OF AGREEMENT
By using the FFCRA Calculator & Toolkit, Client (which is the identity of the employer purchasing MBC software via the MBC website) accepts the following standard Terms of Agreement:
- FFCRA CALCULATOR & TOOLKIT: The Families First Coronavirus Response Act (FFCRA) mandates that certain employers calculate a paid leave for Emergency Paid Sick Leave and Emergency Family Medical Leave where employees meet certain qualifying criteria. The Client hereby wants to calculate leave using the MBC FFCRA Calculator. Use of the FFCRA Calculator & Toolkit requires that the administrator for Client be familiar with the FFCRA requirements, and Client represents that it will undertake such familiarization as its sole responsibility.
- TERM: This Agreement shall commence on the date of purchase and continue thereafter until January 30, 2021 for processing leave requests through December 31, 2020, when the FFCRA expires.
- SUBSCRIPTION FEES: Client pays $99 for the subscription, payable via the MBC website only, and includes applicable sales tax. Buy-up options available from MBC require a quote and invoice, as well as a full standard agreement. Subscription Fees are for subscriptions purchased and not actual usage. Payment obligations are non-cancelable and fees paid non-refundable.
- TERMINATION FOR UNAUTHORIZED SHARING OF SUBSCRIPTION: MBC has the option to terminate Client’s access without notice if Client shares its access with any other employer for any purpose, as Client’s subscription is limited to the benefit of Client only.
- INTELLECTUAL PROPERTY: Client expressly represents and warrants that it will not, for any reason, share its access to MBC with any others, as Client’s subscription is limited to the benefit of Client only. Except as expressly provided for in this Agreement, the parties shall each retain all intellectual property that they owned prior to the Effective Date, and this Agreement shall not be interpreted or construed to grant a party any rights, title, interest or license in the other party’s preexisting intellectual property. MBC shall own all rights, title and interest in any intellectual property and Improvements created during the term of this Agreement and thereafter, including source code of MyBenefitsChannel. Client hereby assigns all right, title and interest in any intellectual property created by the Improvements to MBC. MBC shall have the right to apply for copyrights, patents (including utility and design patents), or other protection for such Improvements, and to enforce its rights in such Improvements, anywhere in the world under its own name and at its own expense. Each party hereby agrees that neither it nor any of its affiliates shall use the name, logo or any other trademarks of the other party without the prior written consent of the other party, which may be withheld at the sole discretion of the other party.
- CLIENT DATA: MBC is not recording any calculations or client data whatsoever for use of the MBC Calculator. As such, Client is solely and completely responsible for storing all records applicable to the FFCRA leave determinations and calculations of rate of pay.MBC is not recording any calculations or client data whatsoever for use of the MBC Calculator. As such, Client is solely and completely responsible for storing all records applicable to the FFCRA leave determinations and calculations of rate of pay.
- LIMITATION OF LIABILITY: Client does not seek indemnity by this Agreement from MBC. MBC DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MBC MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICE(S) IT FURNISHES WILL AVERT OR PREVENT CERTAIN OCCURRENCES. Client agrees that MBC shall not be liable for any of Client’s losses or damages, irrespective of origin, to persons or property, whether directly or indirectly caused by performance or non-performance of obligations imposed by this Agreement or by the negligent acts or omissions of MBC, its agents, employees, contractors or subcontractors. The Client does hereby waive and release any rights of recovery against MBC that it may have hereunder. It is agreed that it is impractical and impossible to fix actual damages which may arise from situations where there may be a failure of services provided. It is agreed that in the event MBC should become liable for any losses, damages or warranty claims attributable to its services in any respect, its total aggregate liability to Client shall be limited to: the Subscription Fees received by MBC hereunder or $5,000.00, which the Client agrees is reasonable and is Client’s sole and exclusive remedy. No suit or action shall be brought against MBC more than one (1) year after the accrual of the cause of action therefore. MBC shall not be liable for any delays, however caused, or for interruptions of the Services caused by strikes, riots, floods, acts of God or by any event beyond the control of MBC. IN NO EVENT SHALL MBC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, DATA OR USE, INCURRED BY CLIENT OR ITS AFFILIATES OR ANY THIRD PARTY.
- FORUM AND GOVERNING LAW: This Agreement shall be interpreted and governed by the laws of the State of Tennessee without regard to its rules governing conflicts of law. Any arbitration shall occur in Williamson County, TN, and any action to interpret the arbitration clause shall be brought in the Chancery Court for Williamson County, TN.
- ARBITRATION: The parties agree that all claims, disputes, or other matters in question arising out of or related to this Agreement will be litigated via binding arbitration with the following reduction in scope as to discovery: No depositions whatsoever. The parties intend that the reduction in scope as to discovery be mutual, regardless of the type or category of claim, dispute, or others matter is question, and the parties shall bear their own expenses and attorney fees associated with litigation. In addition, the parties agree to participate in good faith in a non-binding mediation prior to setting any final hearing or arbitration, with the costs of mediation to be evenly divided between the parties.