Payfactors Free Terms of Use
These Payscale Payfactors® Free Terms of Use (“Terms”), along with the Website Terms of Use (together, the “Agreement”), effective as of the date Customer clicks “Submit” below (“Effective Date”), are by and between Payscale, Inc. (“Payscale”) and the party accepting the Agreement (“Customer”) and govern Customer’s use of the Services (as defined below). The Agreement may be updated or modified at any time.
1) Services. During the Term, Customer shall have the right to access and use Payscale’s Payfactors Free Services (“Services”). The Services permit Customer to price a limited number of jobs per year during the Term using Payscale’ HR Market Data for the US and Canada (“Payscale Data”). The number of jobs available will be displayed in the Services, are subject to Payscale’s sole discretion, and may be changed at any time. The Services, include, without limitation, Payscale Data, are the intellectual property of Payscale and are protected by United States and international intellectual property laws and treaties. Payscale retains all right, title and interest in the Services, and, except as expressly granted in this Agreement, no license, right or interest in any Payscale intellectual property is granted to Customer. To the extent Customer or its personnel may acquire any right or interest by operation of law, Customer irrevocably assigns all such right and interest exclusively to Payscale. Customer acknowledges that Payscale may use generative AI in the development or operation of the Services, and consents to this usage.
2) Term and Termination. There is no charge for the Services. Customer’s subscription for the Services will begin on the Effective Date and terminate the earlier of I) one year from the Effective Date or ii) following 90 days’ of inactivity by Customer, unless terminated earlier according to this Agreement (“Term”). During the Term, Payscale or Customer shall have the right to terminate this Agreement at any time, upon providing the other party with at least ten (10) days written notice. In addition, Payscale may terminate this Agreement immediately by providing written notice if Customer commits a material breach of this Agreement. Upon any termination of the Agreement, Customer shall immediately cease all use of the Services, including the use of any Payscale Data, and all passwords and access will be revoked.
3) Accounts & Authorized Users. During the Term, Customer will receive one Payscale account. Each Account will have permit one User (as defined below) to access the Services and to store one set of system preferences and data search-lists. The Services may be used only by a Customer director, officer, employee or contractor, solely on behalf of Customer (“User”). Customer acknowledges that Payscale may monitor Customer’s use of the Services to ensure that it remains in compliance with this Agreement for the duration of the Term. Customer shall be responsible for all actions of a User with respect to any of the Services and any breach by a User of this Agreement shall constitute a breach by Customer. Payscale Connect, which is accessible through the Services, will be available for Customer as the sole support resource during the term. Customer’s sole remedy with respect to any nonconforming services shall be to terminate the Services.
4) Usage Restrictions. Users may access the Services only in connection with the internal operations of Customer’s business. Customer and its Users may not: (a) reverse engineer, decompile or disassemble the Services, including Payscale Data, or any Payscale software, code or any of their respective elements; (b) copy, alter, modify, adapt, translate or create derivative works from the Services or any portion of thereof; (c) make any of the Services available for third-party use; (d) remove or alter any copyright, trademark or other proprietary notices from the Services; (e) use the Services to develop or engage in business of selling compensation planning software, and/or compensation data or any activity competitive with Payscale or (f) use the Services in violation of anti-trust law.
5) Warranties. Each party represents and warrants to the other party that (i) it has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (ii) the performance, execution and delivery of this Agreement does not violate any of either party’s agreements, organizational documents or obligations. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN THIS SECTION 5 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS OF QUALITY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PAYSCALE DOES NOT WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS, OR TIMELINESS OF THE SERVICES OR THE PAYSCALE DATA. To the extent any warranty claim is not waived, Payscale’s sole and exclusive obligation for warranty claims shall be, at Payscale option, to make the relevant Services operate as warranted or to terminate the Agreement.
6) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 3, 4, 8, 9 AND 10, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY IN CONTRACT, TORT, OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PAYSCALE’S LIABILITY EXCEED $10,000.
7) Confidentiality. Customer acknowledges that the Services (including, without limitation, the Payscale Data) constitutes sensitive data and property with intellectual property rights of substantial value to Payscale. Each Party agrees (i) not to use any non-public information that is reasonably expected to be confidential (collectively, “Confidential Information”) for any purpose other than as expressly permitted under this Agreement, (ii) not to disclose any Confidential Information to any third party without the prior written consent of the other Party and (iii) to take commercially reasonable security measures to prevent the unauthorized use, duplication, or distribution of the Confidential Information at least equal to that which the Party uses to protect its own confidential information. A party may disclose the other party’s Confidential Information if required by any judicial or government requirement or order, provided, however, that such party will promptly notify the other party of any such requirement or order, and will cooperate with the other party to contest any such requirement or order.
8) Indemnification by Payscale. Payscale will defend, indemnify, and hold harmless Customer against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by Customer that arise from any third-party claim alleging that the Services infringes the United States copyright, trademark, or service mark rights of any third party (an “Indemnified Claim”), if Customer: (a) has used the Services in full compliance with this Agreement; (b) promptly notifies Payscale of the claim; (c) allows Payscale to have sole control of the defense and settlement of an Indemnified Claim (though Customer may participate in its own defense at its own expense); and (d) provides Payscale with the authority, information and assistance that Payscale deems reasonably necessary for the defense and settlement of the claim. Customer shall not consent to any judgment or decree or do any other act in compromise of any such claim without first obtaining Payscale’s written consent. If an Indemnified Claim is brought or credibly threatened, Payscale shall have the option, at its sole expense, to obtain for Customer the right to continue using the Services, or modify the Services so that they become non-infringing. The indemnity set forth in this Section shall be Customer’s sole and exclusive remedy for any intellectual property infringement claim arising out of Customer’s use of the Services.
9) Indemnification by Customer. Customer will defend, indemnify, and hold harmless Payscale against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by Payscale that arise from any breach by Customer of this Agreement.
10) Miscellaneous. Neither party will assign the Agreement without the other’s written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement to an affiliate or to a successor to all or substantially all of its business or assets (whether through merger, stock sale, asset sale or other transaction). This Agreement shall comprise the entire agreement between Customer and Payscale with respect to the Services, and shall supersede all preceding agreements and proposals, whether oral, written, or otherwise. Terms and conditions of this Agreement are severable. If any provision is deemed illegal or unenforceable, all other provisions will remain in effect. This Agreement shall be governed and construed under the laws of the State of Washington. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts located in Seattle, Washington for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement. All required notices will be delivered by email to the address provided by Customer, and to Payscale, to legal@payscale.com. Sections 4 (Usage Restrictions) and 7 (Confidentiality) will survive any termination of this Agreement.
