Terms of Service

1. Agreement

These Terms of Service (“Terms”) are a binding agreement between New Empact Work, LLC (“New Empact Work,” “we,” “our,” or “us”) and the customer organization (“Customer,” “you,” or “your”) that accesses or uses our Platform.

You agree to these Terms by (a) accepting them in writing through an order form or signed agreement, (b) issuing a purchase order that references them, or (c) accessing or using the Platform. If you are agreeing on behalf of a Customer, you represent that you have the authority to bind that Customer.

If you do not agree, do not access or use the Platform.

2. Definitions

In these Terms:

• “Authorized User” means an individual you authorize to access the Platform on your behalf, including your staff, reviewers, and (where applicable) applicants.
• “Customer Data” means information you or your Authorized Users submit, upload, configure, or generate through the Platform, including submission content, evaluations, scores, comments, and program configurations.
• “Documentation” means the user guides and technical documentation we make available for the Platform.
• “Order Form” means an ordering document (or an emailed acceptance referencing pricing) entered into by you and us that describes the subscription, fees, and term.
• “Pilot” means a free, time-limited engagement under which we provide access to the Platform on the terms described in Section 4.
• “Platform” means the New Empact Work software-as-a-service platform for running innovation, awards, grants, and scholarship programs, including the website at newempactwork.com.
• “Subscription Term” means the paid subscription period set out in an Order Form, typically twelve (12) months.

3. The Platform

Subject to these Terms, we grant Customer a non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Platform solely for Customer’s internal business purposes and the operation of Customer’s programs.

The Platform’s features and functionality are described in the Documentation and on the Website. We may add, modify, or discontinue features as long as we do not materially diminish the core functionality Customer is paying for during the then-current Subscription Term.

4. Free Pilot

We may offer a Pilot to qualifying Customers to evaluate the Platform before entering into a paid Subscription Term. The Pilot is governed by these Terms with the following modifications:

a. Scope and duration.

The Pilot runs for one complete program cycle, not to exceed ninety (90) days from the Pilot start date unless extended by us in writing. The Pilot provides access to the same Platform features available in our paid subscriptions, subject to reasonable use.

b. No fees.

There are no fees for the Pilot.

c. Conversion to paid subscription.

A Pilot does not automatically convert into a paid Subscription Term. To continue using the Platform after the Pilot ends, Customer must affirmatively agree to a paid Subscription Term by accepting an Order Form, after which we will issue an invoice. We will provide the Order Form before the Pilot ends.

d. End of Pilot.

If Customer does not convert to a paid Subscription Term, Customer will retain access to the Platform for thirty (30) days after the Pilot end date solely to export Customer Data. After that period, we will delete Customer Data in accordance with our Privacy Policy.

e. As is.

The Pilot is provided on an “as is” basis. The warranty in Section 11(b) and our indemnification obligation in Section 12(a) do not apply during the Pilot. The limitation of liability for Pilot Customers is set out in Section 13.

5. Subscription Term and Renewal

a. Subscription Term.

Each paid Subscription Term is twelve (12) months from the start date set forth in the Order Form, unless a different term is specified.

b. Auto-renewal.

Each Subscription Term automatically renews for successive twelve (12) month periods at our then-current pricing for the Customer’s tier, unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.

c. Price changes at renewal.

We may change our pricing for renewal terms. We will provide notice of any price increase at least sixty (60) days before the start of the renewing Subscription Term.

6. Fees and Payment

a. Fees.

Customer agrees to pay the fees set forth in the applicable Order Form.

b. Invoicing.

We invoice for each Subscription Term in advance. Invoices are due net thirty (30) days from the invoice date unless otherwise specified on the Order Form.

c. Late payment.

Undisputed amounts not paid when due may accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law. We may suspend access to the Platform for accounts more than thirty (30) days past due, with reasonable notice.

d. Taxes.

Fees are exclusive of taxes. Customer is responsible for applicable sales, use, and similar taxes, other than taxes on our net income.

7. Customer Data and Authorized Users

a. Ownership.

Customer retains all right, title, and interest in and to Customer Data. Customer grants us a limited, non-exclusive license to access, host, use, copy, and process Customer Data solely to provide and improve the Platform for Customer and to perform our obligations under these Terms.

b. Authorized Users.

Customer is responsible for the acts and omissions of its Authorized Users and for ensuring they comply with these Terms.

c. Privacy.

Personal information collected through the Platform is handled as described in our Privacy Policy, available at newempactwork.com/legal/privacy-policy. We act as a processor of Authorized User personal information on Customer’s behalf.

d. Customer responsibilities.

Customer is responsible for the accuracy and legality of Customer Data and for having all necessary rights, consents, and permissions to provide it to us and have it processed through the Platform.

8. Confidentiality

Each party may receive confidential information from the other (“Confidential Information”). The receiving party will use the same degree of care it uses to protect its own confidential information (and no less than reasonable care), will not disclose Confidential Information to third parties (other than service providers bound to confidentiality), and will use Confidential Information only as needed to perform under these Terms.

Confidential Information does not include information that (i) is publicly available without breach of these Terms, (ii) was known to the receiving party without confidentiality obligations before disclosure, (iii) is independently developed without use of the Confidential Information, or (iv) is rightfully obtained from a third party without confidentiality restrictions.

Confidentiality obligations survive termination for five (5) years, except that trade secrets remain protected as long as they remain trade secrets under applicable law.

9. Acceptable Use

Customer and its Authorized Users will not:

• Use the Platform in violation of any applicable law or regulation.
• Submit, upload, or transmit content that is illegal, harassing, defamatory, infringing, or that violates the privacy or other rights of any person.
• Attempt to reverse engineer, decompile, disassemble, or otherwise discover the source code of the Platform.
• Scrape, crawl, or otherwise extract data from the Platform other than through provided APIs and exports.
• Resell, sublicense, or otherwise make the Platform available to third parties other than Authorized Users.
• Interfere with or disrupt the integrity, security, or performance of the Platform.
• Attempt to gain unauthorized access to the Platform or to systems or data not belonging to Customer.
• Use the Platform to develop or train a competing product.

We may suspend access to the Platform if we determine in good faith that Customer or an Authorized User is violating this section, with reasonable notice when feasible.

10. Our Intellectual Property

The Platform, the Documentation, and all related intellectual property (including software, designs, trademarks, and trade secrets) are owned by us and our licensors. These Terms do not transfer any ownership rights to Customer. Customer’s rights are limited to those expressly granted in these Terms.

We may use aggregated and anonymized data derived from Customer’s use of the Platform (data that cannot reasonably be linked back to Customer or any individual) to operate and improve the Platform and our services.

11. Warranties and Disclaimers

a. Mutual authority.

Each party warrants that it has the authority to enter into these Terms and to perform its obligations under them.

b. Service warranty.

During a paid Subscription Term, we will provide the Platform with commercially reasonable efforts to maintain availability and to perform consistent with the Documentation. We do not commit to a specific uptime percentage and do not provide service-level credits.

c. Disclaimer.

EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE AGAINST UNAUTHORIZED ACCESS.

12. Indemnification

a. By us.

We will defend Customer against any third-party claim alleging that the Platform, as provided by us and used in accordance with these Terms, infringes that third party’s intellectual property rights, and will pay damages and attorneys’ fees finally awarded against Customer (or agreed in a settlement we approve) for such claim. This obligation does not apply to claims arising from (i) Customer Data, (ii) Customer’s use of the Platform in combination with anything not provided by us, (iii) modifications to the Platform not made by us, or (iv) Customer’s breach of these Terms. This indemnity does not apply during a Pilot.

b. By Customer.

Customer will defend us against any third-party claim arising from (i) Customer Data, (ii) Customer’s or its Authorized Users’ violation of Section 9 (Acceptable Use), or (iii) Customer’s breach of its representations regarding rights in Customer Data, and will pay damages and attorneys’ fees finally awarded against us (or agreed in a settlement Customer approves) for such claim.

c. Procedure.

The indemnified party will (i) promptly notify the indemnifying party of the claim, (ii) give the indemnifying party sole control of the defense and settlement (provided no settlement may admit fault or impose an obligation on the indemnified party without consent), and (iii) reasonably cooperate at the indemnifying party’s expense.

13. Limitation of Liability

EXCEPT FOR LIABILITY ARISING FROM (A) BREACH OF SECTION 8 (CONFIDENTIALITY), (B) INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, (C) CUSTOMER’S PAYMENT OBLIGATIONS, OR (D) A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE:

a.

EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR PILOT CUSTOMERS WHO HAVE PAID NO FEES, EACH PARTY’S TOTAL CUMULATIVE LIABILITY IS LIMITED TO ONE THOUSAND DOLLARS ($1,000).

b.

NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST BUSINESS, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITATIONS IN THIS SECTION APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14. Term and Termination

a. Term.

These Terms begin on the start date in the Order Form (or, for Pilots, the Pilot start date) and continue until terminated as set forth below.

b. Termination for cause.

Either party may terminate these Terms (and any active Subscription Term or Pilot) on written notice if the other party materially breaches and fails to cure within thirty (30) days of written notice describing the breach. Either party may terminate immediately if the other party becomes insolvent or files for bankruptcy.

c. Non-payment.

We may terminate for non-payment if undisputed fees remain unpaid more than thirty (30) days after due date and Customer fails to cure within ten (10) days of additional written notice.

d. Effect of termination of a paid subscription.

Upon termination of a paid Subscription Term:

• Customer’s access to the Platform ends at the end of the then-current Subscription Term, unless we terminate sooner for cause.
• We will provide Customer with the ability to export Customer Data for ninety (90) days after termination, after which Customer Data will be deleted in accordance with our Privacy Policy.
• Customer remains responsible for all fees accrued before termination.

e. Survival.

Sections 7 (Customer Data ownership references), 8 (Confidentiality), 10 (Our IP), 11 (Disclaimers), 12 (Indemnification), 13 (Limitation of Liability), 14 (this Section), 15 (Governing Law and Disputes), and 16 (General) survive termination.

15. Governing Law and Dispute Resolution

These Terms are governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles. The parties consent to the exclusive jurisdiction of the state and federal courts located in Fairfax County, Virginia, for any disputes arising out of or relating to these Terms.

Each party waives any right to a jury trial in any such dispute.

16. General Provisions

a. Notices.

Notices to us under these Terms must be sent in writing to legal@newempactwork.com (or such other address as we designate). Notices to Customer will be sent to the account email on file.

b. Assignment.

Neither party may assign these Terms without the other party’s written consent, except that either party may assign to an affiliate or in connection with a merger, acquisition, reorganization, or sale of substantially all of its assets.

c. Force majeure.

Neither party is liable for delays or failures caused by events beyond its reasonable control, including natural disasters, acts of government, war, terrorism, labor disputes, or disruptions in third-party services (including AWS), provided the affected party uses reasonable efforts to mitigate.

d. Severability.

If any provision of these Terms is held invalid or unenforceable, the remaining provisions remain in effect, and the invalid provision will be replaced by an enforceable provision that achieves the same intent to the extent possible.

e. No waiver.

Failure to enforce any provision is not a waiver of the right to enforce it later.

f. Entire agreement.

These Terms, together with any Order Form, the Privacy Policy, and any documents expressly referenced, are the entire agreement between the parties regarding the Platform and supersede all prior or contemporaneous agreements and understandings on the subject.

g. Independent contractors.

The parties are independent contractors. These Terms do not create any partnership, joint venture, agency, or employment relationship.

h. Updates to these Terms.

We may update these Terms from time to time. We will provide notice of material changes at least thirty (30) days before they take effect. Continued use of the Platform after changes take effect constitutes acceptance.