Terms of Sale for Outplacement Services

RISESMART EXPRESS
TERMS OF SALE FOR OUTPLACEMENT SERVICES

 

By submitting an order through RiseSmart Express at www.risesmartexpress.com (“Order(s)”), Customer agrees that it is bound by the following terms and conditions (“Terms”) with respect to such Order(s).  Each Order, together with these Terms, is a contract between Customer and RiseSmart (each an “Agreement”).  The individual submitting Order(s) represents and warrants that it is an authorized representative of Customer who has the authority to bind Customer to the Agreement.   For purposes hereof, “Customer” shall mean the customer entity listed in the applicable Order(s), and “RiseSmart” shall mean RiseSmart, Inc. 

 

1. Services.

1.1             RiseSmart agrees to provide job outplacement assistance service packages (“Service Packages”) ordered by Customer to those Customer employees and/or former employees identified to RiseSmart by Customer (“Participants”), subject to the terms of the Agreement (“Outplacement Services”).  RiseSmart will provide each Participant, that activates their Service Package, with access to an account within the RiseSmart Career Portal (“RiseSmart Account”) where Participants can register, access, and track weekly job leads.  Within the RiseSmart Account, Participants can also access the job search tools, career content, and social network integration.  RiseSmart reserves the right to change Service Packages at any time without notice or liability to Customer. 

1.2             Customer will provide RiseSmart with a list of all eligible Participants and their related contact information (phone number and email) prior to layoff or position elimination announcement, moreover, such list shall indicate which ordered Service Package the Participant should receive (if different types of Service Packages were ordered by Customer).  Such list will be in an Excel format (or such other format) as provided by RiseSmart and will be submitted to RiseSmart by Customer in accordance with instructions provided by RiseSmart from time to time.  Customer will make Participants aware of their Service Package.  Unless requested otherwise by Customer in a written notice sent via prepaid certified or registered United States mail to RiseSmart, Inc., 55 Almaden Boulevard, Suite 800, San Jose, CA, 95113 (or such other address provided to Customer by RiseSmart pursuant to the Notice section hereof), Customer will allow RiseSmart to mention Customer’s name in sales and marketing materials (including, without limitation, on RiseSmart’s website). 

1.3             In order for a Participant to receive their Service Package, they must initiate their designated Service Package by registering for it on the RiseSmart designated registration page.  If a Participant fails to initiate their Service Package within twelve (12) months of when RiseSmart provides notice to the Participant based on Customer provided contact information for such Participant, RiseSmart shall not be obligated to provide the Service Package to the Participant; moreover, Customer shall not be entitled to a refund and shall not be entitled to use the Service Package with any other individual.  If Customer fails to provide a Participant name and related contact information for an ordered Service Package within twelve (12) months of purchase of a Service Package, the Service Package shall expire; moreover, Customer shall not be entitled to a refund and shall not be entitled to use the Service Package with any other individual.  RiseSmart shall not be responsible for inaccurate Participant contact information provided by Customer, and the failure of Customer to provide accurate contact information for a Participant shall not change the rights of RiseSmart under this section.  

1.4             Customer acknowledges that use of Service Packages by Participants may be subject to such persons agreeing to RiseSmart’s then-current, standard, end user terms of use.  Service Packages shall only support individuals seeking employment in the United States.          

1.5             Additional services ordered by Customer through RiseSmart Express (“Additional Services”) shall be deemed “Outplacement Services”, subject to the terms of the Agreement.   If Customer fails to activate (as reasonably determined by RiseSmart) Additional Services within twelve (12) months of the applicable Order, the Additional Services, and the Customer right to receive the Additional Services, shall expire.  

 

2. Payment. 

2.1             Fees for Outplacement Services are as specified in the applicable Order.  Customer shall pay RiseSmart the fees specified in the applicable Order at the time the Order is placed with RiseSmart, unless otherwise provided in the applicable Order, in which case, the fees shall be payable as specified in the applicable Order (and if not specified, such fees shall be due and payable upon request from RiseSmart).  RiseSmart reserves the right to increase its prices for its services at any time, provided that, RiseSmart shall not be entitled to increase fees for an Order submitted, and fully paid for, by Customer.  

2.2             All fees are listed in United States Dollars.  Refunds are not provided for Outplacement Services, moreover, without limiting the generality of the foregoing, refunds or partial refunds are not provided for Participants that do not follow through with Service Packages.  RiseSmart is not obligated to provide any Outplacement Services unless and until RiseSmart has been fully paid by Customer for such Outplacement Services.        

 

3. Termination. The Agreement shall terminate upon completion, termination or expiration of the Outplacement Services under the Agreement.  Either party may terminate the Agreement if the other party breaches any material term or condition of the Agreement and fails to correct such breach within thirty (30) days after receiving written notice from the non-breaching party specifying such breach.  The following provisions shall survive termination of the Agreement: Section 2 through Section 8 (inclusive).

 

4. Confidentiality. During the term of this Agreement, each party (as applicable, “Disclosing Party”) may provide the other party (as applicable, “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”).  All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “confidential” (or with similar designation), and all other information that the Receiving Party should reasonably understand to be confidential, shall be “Confidential Information”.  Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party (provided that, RiseSmart may disclose such information to its contractors and agents in connection with its performance hereunder; provided that, such persons and entities are informed of the confidential nature of the information).  Receiving Party will only use the Confidential Information internally for the purposes of performing its obligations, and exercising its rights, hereunder.  The obligations in this section shall not apply to any information that (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction.  At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.  Customer acknowledges that it is Customer’s ultimate responsibility to comply with all applicable laws related to the protection of individuals’ privacy (including without limitation all applicable European and Swiss laws).

 

5. Intellectual Property. All rights, title and interest in and to the RiseSmart Outplacement Services (including, without limitation, the RiseSmart Career Portal) will remain with and belong exclusively to RiseSmart.  No intellectual property rights are being licensed or otherwise transferred under the Agreement, and no license or right to use any trademark of RiseSmart or any third party is granted to Customer.

 

6. Warranties. 

6.1             RiseSmart warrants that the Outplacement Services will be performed in a professional and workmanlike manner.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, RISESMART (ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS) MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RISESMART MAKE NO WARRANTIES THAT PARTICIPANTS WILL BE SUCCESSFULLY PLACED IN JOBS THROUGH USE OF THE OUTPLACEMENT SERVICES.

6.2             Customer warrants, represents and covenants that (i) it is a business organization duly formed or organized as a corporation, partnership, or limited liability company under applicable law; (ii) it is not purchasing the services hereunder for personal use; (iii) it is a small business i.e. it has fewer than one thousand (1,000) employees; (iv) it is purchasing services hereunder to be used by individuals seeking employment in the United States; (v) it is not engaged in the job outplacement industry; (vi) it does not have a separate executed written agreement with RiseSmart outside of the RiseSmart Express offering; and (vii) it shall not (and shall not allow any third party) to (a) copy, reproduce, delete, distribute, download, store, transmit, publish, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of, sublicense, resell, rent, lease, transfer, assign or time share the Outplacement Services (including, without limitation, the RiseSmart Career Portal) or otherwise commercially exploit or make the Outplacement Services (including, without limitation, the RiseSmart Career Portal) available to any third party; (b) use the Outplacement Services (including, without limitation, the RiseSmart Career Portal) in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Outplacement Services (including, without limitation, the RiseSmart Career Portal); (c) modify, adapt or hack the Outplacement Services (including, without limitation, the RiseSmart Career Portal) to, or otherwise attempt to, gain unauthorized access to the Outplacement Services (including, without limitation, the RiseSmart Career Portal) or its related systems or networks; or (d) use any Outplacement Services (including, without limitation, the RiseSmart Career Portal) content on other Web sites or any media. 

 

7. Limitation on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER RISESMART, NOR ITS PARTNERS OR SUPPLIERS (NOR ANY OF ITS OR THEIR REPRESENTATIVES, CONTRACTORS, OFFICERS OR EMPLOYEES), SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY: (I) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO RISESMART HEREUNDER.  RISESMART SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

 

8. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind RiseSmart in any respect whatsoever. 

 

9. Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three (3) days after being sent by prepaid certified or registered U.S. mail, to the following addresses: (i) for RiseSmart, 55 Almaden Boulevard, Suite 800, San Jose, CA, 95113 (or such other address provided to Customer by RiseSmart pursuant to this section) and (ii) for Customer, such address as provided in an Order.

 

10. Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent; provided that, RiseSmart may, without such consent, assign this Agreement to a successor to substantially all of its business or assets.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, provided that, in the event Customer agreed to RiseSmart website terms and conditions with respect to the Outplacement Services (“TOS”), the TOS shall continue to apply as applicable, provided further, in the event of conflict between the TOS and the Agreement, the terms of the Agreement shall prevail and control.  All waivers and modifications to the Agreement must be in a writing executed by both parties, except as otherwise provided herein.  This Agreement shall be governed by the laws of the State of California without regard to its conflict of law’s provisions.  The parties hereby agree that the exclusive and sole jurisdiction and venue for all disputes arising under this Agreement shall be the state and Federal courts located in San Francisco, California. 

 

TERMS OF SALE FOR INDIVIDUALS

 

For purposes hereof, “Client” shall mean the individual listed in the applicable Order(s), and “RiseSmart” shall mean RiseSmart, Inc. 

By submitting an order through RiseSmart Express at www.risesmartexpress.com (“Order(s)”), Client agrees that they are bound by the following terms and conditions (“Terms”) with respect to such Order(s).  Each Order, together with these Terms, is a contract between Client and RiseSmart (each an “Agreement”). 

 

1. Services.

1.1             RiseSmart agrees to provide job outplacement assistance service packages (“Service Packages”) ordered by Client subject to the terms of the Agreement (“Outplacement Services”).  RiseSmart will provide access to an account within the RiseSmart Career Portal (“RiseSmart Account”) where Client can register, access, and track weekly job leads.  Within the RiseSmart Account, Client can also access the job search tools, career content, and social network integration.  RiseSmart reserves the right to change Service Packages at any time without notice or liability to Client. 

1.2             In order for a Client to receive their Service Package, they must initiate their designated Service Package by registering for it on the RiseSmart designated registration page.  If a Client fails to initiate their Service Package within twelve (12) months, RiseSmart shall not be obligated to provide the Service Package to the Client; moreover, Client shall not be entitled to a refund and shall not be entitled to use the Service Package with any other individual. 

1.3             Client acknowledges that use of Service Packages may be subject to such persons agreeing to RiseSmart’s then-current, standard, end user terms of use.  Service Packages shall only support individuals seeking employment in the United States.   

       

2. Payment. 

2.1            Client shall pay RiseSmart the fees specified in the applicable Order at the time the Order is placed with RiseSmart. RiseSmart reserves the right to increase its prices for its services at any time, provided that, RiseSmart shall not be entitled to increase fees for an Order submitted, and fully paid for, by Client.   

2.2             All fees are listed in United States Dollars.  Refunds are not provided for Outplacement Services, moreover, without limiting the generality of the foregoing, refunds or partial refunds are not provided for Clients that do not follow through with Service Packages.  RiseSmart is not obligated to provide any Outplacement Services unless and until RiseSmart has been fully paid by Client for such Outplacement Services.       

 

3. Termination. The Agreement shall terminate upon completion, termination or expiration of the Outplacement Services under the Agreement.  Either party may terminate the Agreement if the other party breaches any material term or condition of the Agreement and fails to correct such breach within thirty (30) days after receiving written notice from the non-breaching party specifying such breach.  The following provisions shall survive termination of the Agreement: Section 2 through Section 8 (inclusive).

 

4. Confidentiality. During the term of this Agreement, each party (as applicable, “Disclosing Party”) may provide the other party (as applicable, “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”).  All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “confidential” (or with similar designation), and all other information that the Receiving Party should reasonably understand to be confidential, shall be “Confidential Information”.  Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party (provided that, RiseSmart may disclose such information to its contractors and agents in connection with its performance hereunder; provided that, such persons and entities are informed of the confidential nature of the information).  Receiving Party will only use the Confidential Information internally for the purposes of performing its obligations, and exercising its rights, hereunder.  The obligations in this section shall not apply to any information that (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction.  At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. 

 

5. Intellectual Property. All rights, title and interest in and to the RiseSmart Outplacement Services (including, without limitation, the RiseSmart Career Portal) will remain with and belong exclusively to RiseSmart.  No intellectual property rights are being licensed or otherwise transferred under the Agreement, and no license or right to use any trademark of RiseSmart or any third party is granted to Client.

 

6. Warranties. 

6.1             RiseSmart warrants that the Outplacement Services will be performed in a professional and workmanlike manner.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, RISESMART (ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS) MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RISESMART MAKE NO WARRANTIES THAT PARTICIPANTS WILL BE SUCCESSFULLY PLACED IN JOBS THROUGH USE OF THE OUTPLACEMENT SERVICES.

6.2             Client warrants, represents and covenants that (i) it is purchasing services hereunder to be used by him or herself seeking employment in the United States; (ii) he or she is not engaged in the job outplacement industry; (iii) he or she does not have a separate executed written agreement with RiseSmart outside of the RiseSmart Express offering; and (iv) he or she shall not (and shall not allow any third party) to (a) copy, reproduce, delete, distribute, download, store, transmit, publish, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of, sublicense, resell, rent, lease, transfer, assign or time share the Outplacement Services (including, without limitation, the RiseSmart Career Portal) or otherwise commercially exploit or make the Outplacement Services (including, without limitation, the RiseSmart Career Portal) available to any third party; (b) use the Outplacement Services (including, without limitation, the RiseSmart Career Portal) in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Outplacement Services (including, without limitation, the RiseSmart Career Portal); (c) modify, adapt or hack the Outplacement Services (including, without limitation, the RiseSmart Career Portal) to, or otherwise attempt to, gain unauthorized access to the Outplacement Services (including, without limitation, the RiseSmart Career Portal) or its related systems or networks; or (d) use any Outplacement Services (including, without limitation, the RiseSmart Career Portal) content on other Web sites or any media. 

 

7. Limitation on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER RISESMART, NOR ITS PARTNERS OR SUPPLIERS (NOR ANY OF ITS OR THEIR REPRESENTATIVES, CONTRACTORS, OFFICERS OR EMPLOYEES), SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY: (I) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CLIENT TO RISESMART HEREUNDER.  RISESMART SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

 

8. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind RiseSmart in any respect whatsoever. 

 

9. Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three (3) days after being sent by prepaid certified or registered U.S. mail, to the following addresses: (i) for RiseSmart, 55 Almaden Boulevard, Suite 800, San Jose, CA, 95113 (or such other address provided to Client by RiseSmart pursuant to this section) and (ii) for Client, such address as provided in an Order.

 

10. Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent; provided that, RiseSmart may, without such consent, assign this Agreement to a successor to substantially all of its business or assets.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, provided that, in the event Client agreed to RiseSmart website terms and conditions with respect to the Outplacement Services (“TOS”), the TOS shall continue to apply as applicable, provided further, in the event of conflict between the TOS and the Agreement, the terms of the Agreement shall prevail and control.  All waivers and modifications to the Agreement must be in a writing executed by both parties, except as otherwise provided herein.  This Agreement shall be governed by the laws of the State of California without regard to its conflict of law’s provisions.  The parties hereby agree that the exclusive and sole jurisdiction and venue for all disputes arising under this Agreement shall be the state and Federal courts located in San Francisco, California. 

 

Rev. May 1, 2018