123EMPLOYEE, INC. ("123EMPLOYEE") IS WILLING TO GRANT THE SUBSCRIBER (DEFINED BELOW) RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES DESCRIBED ON THIS MWB.BZ SITE ONLY UPON THE CONDITION THAT YOU (THE “SUBSCRIBER”) ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY REGISTERING YOU AGREE WITH THESE TERMS AND CONDITIONS. YOU MAY ENTER INTO THIS AGREEMENT AS AN INDIVIDUAL PERSON (A “SUBSCRIBER”) OR IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY (A “SUBSCRIBER”), YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND THIS ORGANIZATION OR ENTITY TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ORGANIZATION OR ENTITY, THEN 123EMPLOYEE IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
Our Refund Policy
1.1 “Content” means digital files and data the you upload and post to public areas of this this site, such as our public forums where you post content and collaborate with other subscribers.
1.2 “Services” means (i) access on this website and our
MWB lead generation tool, and (ii) and any updates or upgrades to our Services which may be generally released by us to all subscribers from time to time.
1.3 “Subscriber” means the individual, organization, or entity purchaser of the subscription for the Services as indicated above.
2. Parties. The parties to this legal Agreement are 123Employee, the owner of this website business, and the Subscriber which may be referred to as “you”, “your”, and/or “yourself”. All references to “we”, “us”, “our”, “this website” or “this site” shall be construed to mean this 123Employee.com website business and 123Employee.com.
4. Modification of Services. We reserve the right to modify the Services from time to time; however, future modifications will not result in a diminution of the functionality or quality of the Services. Certain other new functionality may be offered in the future for an additional fee, and if you elect to purchase any of this new functionality it will be deemed to be part of the Services.
5. Provision of Online Services. Subject to the terms and conditions hereof, we shall provide, and we hereby grant a non-exclusive, non-transferable license, to you to access and use the Services during the term of this Agreement only to the extent of Subscriber and Subscriber’s personnel ("Authorized Use"). This Agreement provides for your use of the Services generated by our software, but it is not otherwise an agreement for the sale or license of any software. You may use the Services only for your internal business purposes of processing, storing and maintaining your data, and not for purposes of resale. You are solely responsible for providing your Internet access and all other technology for your access to the Services, including your Internet connection.
6. Restrictions on Use. You agree that your use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations. Without limiting the generality of the foregoing, you will not: (a) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information in the Services except in accordance with accepted practices; (b) allow access to the Services other than the extent of Authorized Use. In addition, you are not authorized to use the Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way (i) email in violation of any law or regulation, including without limitation, laws or regulations regarding “Spam”, text or short messages “SMS”, software viruses, and malicious computer code, and (ii) lewd, obscene, pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely in our sole discretion.
7. Your Access to the Services and Your Confidential Information.
7.6 We reserve the right to temporarily suspend access to the Services for operational and maintenance purposes. Regular suspensions may occur during the hours of midnight to 4:00 am Pacific time on Fridays or Saturdays without prior notice. We will provide email notice for other suspensions at least two business days prior to the suspension.
7.8 Subscriber agrees (i) to provide certain current, complete, and accurate information regarding your Usernames and any additional login information we may provide, and (ii) to maintain and update your Usernames as required to keep such information current, complete and accurate. You warrant that your Usernames are and will continue to be accurate and current, and that you are authorized to provide your Usernames to us. You authorize us to verify your Usernames at any time. If any Username that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to convert such information into digital format and to use it for purposes of operating the Services.
8. Security. You will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Services, we will) implement reasonable and adequate security procedures, to protect your data in our server(s) from unauthorized access using illicit means, including without limitation, administrative and technical protocols, intrusion detection, vulnerability and patch management, firewalls, virus detection and anti-virus software that is patched to a current status, authentication techniques, such as user names and passwords, or authorization formats which limit access to particular users (the "Data Security Standard"). Provided that we are in compliance with the Data Security Standard, the parties agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your information on our site promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such information is required, you will be solely responsible for any and all such notifications at your expense.
9. Confidential Information.
9.1 Each party ("Receiving Party") acknowledges that it may receive confidential information from other party ("Disclosing party"). In our case, we claim as "Confidential Information" the nonpublic marketing and sales and subscriber information, algorithms, logic, design, and coding methodology embodied in the Services, our website, and all software and technology we use to provide the Services. In your case, you claim as "Confidential Information" (also referred to herein as “Subscriber Confidential Information”) the non-public information you provide in your in your capacity as a Subscriber for use of the Services, including without limitation, information regarding your Authorized Users and Authorized Clients, your client information, Usernames, and Non-Public Personal information (defined below). Confidential Information will not include information that: (i) is known to the Receiving Party prior to receipt from the Disclosing party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing party; (ii) becomes known (independently of disclosure by the Disclosing party) to the Receiving Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information (including without limitation Subscriber Confidential Information) pursuant to the requirements of a governmental agency, legal process, or by operation of law, provided that such Receiving Party gives the Disclosing party prompt written notice thereof as soon as practicable and reasonably cooperates with the Disclosing party for purposes of filing a protective order or to otherwise contest such disclosure.
9.2 "Non-Public Personal Information" means any of the following information received by us from you: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number.
9.4 The provisions of this Section are subject to the limitation on our liability set forth in Section 8 (Security), but only to the extent that a breach of this Section results from an unauthorized third party using illicit means to access the Services or our technology. A breach of this Section that results from access to the Services or our technology by our current or former personnel or any of our subcontractors or providers, shall not be subject to the limitation on our liability set forth in Section 8.
10. Your Postings And Content.
10.1 We will not treat Content that we may permit you to post or upload to public areas now or in the future as private. We have no obligation to monitor posts to this site or to exercise any editorial control over such posts; however, we reserve the right to review such posts and to remove any material that, in our judgment, is not appropriate. Posting, transmitting, promoting, using, distributing or storing Content that could subject us to any legal liability, whether in tort or otherwise, or that is in violation of any applicable law or regulation, or otherwise contrary to commonly accepted community standards, is prohibited, including without limitation information and material protected by copyright, trademark, trade secret, nondisclosure or confidentiality agreements, or other intellectual property rights, and material that is obscene, defamatory, constitutes a threat, or violates export control laws.
10.2 You retain all rights and ownership to your Content. We make no claim of ownership to your Content; however, we do need certain rights (a license) to use your Content to enable our Services. If you upload or submit your Content, you grant to us and any of our affiliated entities a worldwide, non-exclusive, irrevocable, and perpetual right and license (i) to use, reproduce, modify, and create derivative works based on your Content, and (ii) to host, publish, distribute, publicly display, publicly perform your Content and derivative works in all methods and means of distribution and publication, now known or hereafter developed. This license granted by you is only for purposes of marketing, promoting, or improving our Services.
11. Continuity Billing For Service Fees; Taxes.
11.1 You will pay fees for Services in accordance with your signup page ("Service Fees"). You agree that at the beginning of each billing term, we will automatically charge your credit card or debit your Bank Account via ACH information, as provided by you, for the Service fees. You may change your credit card or ACH information on file at any time. Service Fees are non-refundable. You also agree to pay, at our then current rates, for all goods or services that you request from us and that are not included in the Services. Fees are exclusive of sales, use, or other transaction-based taxes, and you agree to pay all such charges either as levied by taxing authorities or invoiced by us. Subsequent to the initial term of your subscription, we may increase Service Fees to be effective for the subsequent renewal term of your subscription.
11.2 We may offer at our discretion from time to time promotion that may include reduced fees for Services conditioned upon your membership in a particular organization (“Partner”). You agree that we are entitled to request from you or the Partner reasonable proof of your membership in the Partner organization as a prerequisite of providing you any Services at promotional rates, and to request from time to time proof of your continued membership in order to continue such promotional rates. Failure to provide proof of membership in a Partner organization upon our request will result in the imposition of regular fees for Services retroactive to the last date as to which proof of membership was provided.
12. TERM; LIFETIME LICENSE.
12.1 The term of this Agreement is defined as a “Lifetime License” which means you pay only once and you get all updates to the Services that we make available at no additional cost for the lifetime of the Services. You agree that certain features of the Services may not be available or supported in perpetuity. You also agree that we have the right to change features associated with the Services at our sole discretion, and that we may choose to discontinue support of the Services at any time. You are not entitled to a refund of the Lifetime License fee under any circumstances.
12.2 We may terminate this Agreement for cause without prior notice upon any material breach of the Agreement, including without limitation any violation of Restrictions on Use provided in Section 6 above.
13. Technical Support, Training, and Consulting Services. During the term hereof, we will provide technical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, we will provide such services on a time and materials ("T&M") basis; that is, (i) you will pay us for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be our then-current standard rates when such services are provided. Any monetary limit stated in an estimate for T&M services shall be an estimate only for your budgeting and our resource scheduling purposes. If the limit is exceeded, we will cooperate with you to provide continuing services on a T&M basis. We will invoice you monthly for T&M services. Charges shall be payable upon receipt of invoice. We reserve the right to require a non-refundable fee and/or cost deposit prior to commencement of services as well as a work order.
14. Limited Warranty; Disclaimers. We warrant that (i) we will undertake reasonable efforts to maximize uptime for the Services, except for routine maintenance, and (ii) the Services will be free of material defects and will conform to the descriptions provided on this site ("Limited Warranty"). Your sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of material defects and non-conforming Services at our expense.
15. EXCEPT AS PROVIDED ABOVE, WE PROVIDE THE SERVICES "AS-IS" AND WITH ALL FAULTS. WE DO NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. WE, ON BEHALF OF OUR SUPPLIERS AND VENDORS, SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, COMPATIBILITY WITH SUBSCRIBER COMPUTER AND/OR TECHNOLOGY INFRASTRUCTURE, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THIS SITE AND/OR SERVICES PROVIDED BY THIS SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THIS SITE, WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT WE HAVE NO CONTROL OVER THE INTERNET, AND THAT THIS SITE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THIS SITE AND ITS SERVICES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. PARTICIPATION IN THE AFFILIATE PLATFORM IS NOT AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
16. Our Intellectual Property Indemnity. We will indemnify, defend and hold you harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against you that any Services infringes on any U.S. intellectual property right of a third party that is known to us prior to providing the Services to you; provided, however, that we are notified in writing of such claim promptly after such claim is made upon you. We will have the right to control any defense of any claim. In no event shall you settle any such claim without our prior written approval. We will have no liability or obligation if the claim arises from (i) any alteration or modification to the Services other than by us, (ii) any combination of the Services with other programs or data not furnished by us, or (iii) any use of the Services prohibited by this Agreement or otherwise outside the scope of use for which the Services is intended. If you are enjoined from using the Services, or if we believe that the Services may become the subject of a claim of intellectual property infringement, we, at our option and expense, may: (i) procure the right for you to continue to use the Services; (ii) replace or modify the Services so as to make it non-infringing; or (iii) terminate this Agreement, in which case we will refund to you any and all subscription fees paid in advance by you for those Services not provided by us and provide, at your request and free of charge, your data in a database document format. These remedies are your sole remedies for claims of infringement.
17. Subscriber’s Indemnity. Subscriber will indemnify, defend and hold us harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of: (i) any breach by Subscriber or Subscriber’s personnel of any obligation provided in this Agreement, and (ii) any act or omission by Subscriber or Subscriber’s personnel that results in any violation of the rights of an third party, any breach of any agreement with any third party, or any violation of any applicable law or regulation. We will notify you in writing of any such claim promptly after the claim is made upon us. you will promptly undertake at your own cost and expense the defense of any claim, suit, or undertaking with counsel reasonably acceptable to us. You will have the right to control any defense of any such claim. In no event shall you settle any such claim without our prior written approval.
18. Consequential Damages Waiver. EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Liability Cap. Except for our indemnity expressly provided herein and our confidentiality obligations, our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of Service Fees paid or payable by you for the month immediately preceding the claim for such liability.
20. Intellectual Property Ownership. We retain sole and exclusive ownership of all intellectual property rights embodied in our Services, website, content, promotional materials, and all software and technology we use to provide the Services. You retain all sole and exclusive ownership of all intellectual property rights embodied in your promotional materials.
21. Independent Contractors. The relationship of the parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. You shall have no authority to enter into agreements of any kind on behalf of us, and you shall not have the power or authority to bind or obligate us in any manner to any third party.
22. Notices. We may give notice to you for any purpose by email sent to your then-current email address listed for your affiliate account. You may give notice to us for any purpose by email sent to us at the following address: info@123Employee.com, or any other email address we may specify in an email notice to you.
23. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, you shall not assign this Agreement or any right or interest under this Agreement, without our prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
24. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God.
25. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Las Vegas, Nevada, USA, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of Nevada, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
26. Jurisdiction and Venue; Applicable Law. The courts of Clark County in the State of Nevada, USA and the U.S. District Court for the State of Nevada shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The laws of the State of Nevada, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
27. Survival. The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability, and indemnities, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the intellectual property rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money due to either party.
28. U.S. Government End-Users. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Unpublished-rights reserved under the copyright laws of the United States.
29. Miscellaneous. This Agreement shall be construed under the laws of the State of New Jersey, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The Agreement is written in English, and English is its controlling language. If you are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: “The parties confirm that this Agreement and all related documentation is and will be in the English language.”); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use this site, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this agreement enforceable.