1. DEFINITIONS

“Add-Ons” means additional product enhancements that are made available for purchase.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means these General Terms and all materials referred or linked to, unless otherwise stated.

“Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s employees, customers, potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, financial, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

“Consulting Services” means the professional services provided to you by us, which may include training services, implementation, integration, or other consulting services.

“Customer Data” means all information that you submit or we collect via the Subscription Service. Customer Data does not include Tilt Content.

“DPA” means the Tilt Data Processing Agreement at https://hellotilt.com/dpa/. 

“Order Form” means the Tilt-approved form by which you agree to subscribe to the Subscription Service and/or purchase Consulting Services. 

“Personal Data” means any information relating to an identified or identifiable individual if (i) such information is contained within Customer Data and/or (ii) is protected as personal data or personally identifiable information under applicable law. 

“Sensitive Information” means government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under the GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.

“Services” means the Consulting Services, the Subscription Services, and any other services contemplated or provided under this Agreement.

“Subscription Fee” means the amount you pay for the Subscription Service.

“Subscription Service” means Tilt’s web-based application, tools, and platform that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via your company-specific designated URL.

“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any).

“Third-Party Sites” means third-party websites that may be linked to including but not limited to state paid leave programs, federal government agencies, and/or insurance portals. 

“Tilt Content” means all information, data, text, messages, software, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.

“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) excluding fees for renewals, Consulting Services, and applicable taxes.

“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service and have unique user identifications and passwords for the Subscription Service.

“You,” “Your,” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record or Order Form as the customer. 

2. USE OF SERVICES

2.1  Access. During the Subscription Term, we will provide your Users access to use the Subscription Service. You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement.

2.2 Availability and Uptime. For details of Tilt’s Service Uptime Commitment, please see our Service Level Agreement. 

2.3 Modifications. We may modify the Subscription Service from time to time, including enhancing or discontinuing features and functions, in an effort to improve your experience. We will not make any changes that materially reduce the functionality provided to you during the Subscription Term.

2.4 Prohibited and Unauthorized Use. Customer will: (a) use the Services only in accordance with this Agreement, Order Form, any additional Tilt user guidelines and other information related to Customer’s use of the Services made available by Tilt to Customer from time to time and applicable laws and government regulations. You will not use the Services in any way that violates the law or in any way that is prohibited by this Agreement.

2.5 Customer Responsibilities. To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, payroll point of contact, and in some cases a technical resource. Responsibilities that may be required include sharing and explaining your leave of absence policies and leave-related company benefits; communicating any changes to company policies and benefits; approving customized company workflows; attending success review meetings; supporting the integration of the Subscription Service with your team if applicable, and notifying us before terminating an employee who has requested leave or is on a leave of absence. We are not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing or failure to perform. This includes but is not limited to delays to implementation timelines and launch. 

2.6 Non-provision of Legal Services. You understand and agree that, in providing the Subscription Service and Consulting Services under this Agreement: (a) Tilt is not providing legal advice or legal representation to Customer in any regard; (b) Tilt’s services are non-legal; (c) Tilt’s opinions and recommendations are provided for informational and/or educational purposes only. Customer further understands and agrees that should it require legal advice, it will engage a licensed attorney.

3. FEES

3.1  Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless (i) you acquire or merge with another company that results in a 20% or more increase to your employee headcount, (ii) you upgrade products (iii) you subscribe to additional products or features, (iv) a fee adjustment applies under the “Fee Adjustments for Multi-Year Agreements” section of this Agreement, or (v) otherwise agreed to in your Order Form. 

3.2 Fee Adjustments for Multi-Year Agreements. If you sign a multi-year agreement, we may increase your fees on an annual basis unless the Order Form states otherwise. For example, if you sign a two year agreement, you will be asked to confirm your total employee headcount before year two begins so we can determine if any fee adjustments apply. 

3.3  Payment. We will invoice you per the terms of your Order Form and all amounts are due and payable within 30 days unless the Order Form states otherwise.

3.4 Payment Information. You will keep your billing information up to date. Changes may be made by emailing finance@hellotilt.com or contacting your Customer Success Manager. All payment obligations are non-cancelable and all amounts paid are non-refundable unless otherwise noted in the Order Form. All fees are due and payable in advance throughout the Subscription Term. The billing point of contact shall be listed in the Order Form.

4. TERM AND TERMINATION

4.1  Term and Renewal. Your initial subscription term will be specified in your Order Form, and, unless otherwise noted in your Order Form, your subscription will automatically renew for a successive one-year term. 

4.2  Notice of Non-Renewal.  Unless otherwise specified in your Order Form, to prevent renewal of your subscription, you must give written notice of non-renewal at least 60 days before the expiration of the current term. If you decide not to renew, you must send a non-renewal notice to us at legal@hellotilt.com. 

4.3  Early Cancellation.  You may choose to cancel your subscription early at your convenience provided that we will not provide any refunds of prepaid or unused Subscription Fees.

4.4  Termination for Cause. Either of us may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ written notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

4.5 Suspension for Non Payment. We will provide you with written notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, your access will be revoked and you must stop all use of the Subscription Services. 

5. CUSTOMER DATA

5.1  Customer’s Proprietary Rights. You own and retain all rights to the Customer Data. This Agreement does not grant us any ownership rights to Customer Data. You grant permission to us to use the Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement.

5.2 Protection of Customer Data. Generally, we will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data.  The DPA further explains how we process Personal Data in connection with the Subscription Services. 

6. INTELLECTUAL PROPERTY

6.1  Overview. This is an agreement for access to and use of the Subscription Service. You are not granted a license to any software by this Agreement. We retain all intellectual property rights to the Tilt Content, the Subscription Service, the Consulting Services, and any other products or services provided. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Tilt Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.

6.2 Feedback and Suggestions. We encourage all customers to provide feedback and share suggestions for improving our product and services. You agree that all such feedback and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.

7. CONFIDENTIALITY

7.1 Non-Disclosure Obligations. The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services) and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements containing protections no less stringent than the Receiving Party’s under this Agreement.

7.2 Authorized Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt written notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information.

8. PUBLICITY. Unless otherwise stated in the Order Form, Tilt has Customer’s permission to use Customer’s name, trademarks, and logos on its website and in Tilt’s sales and marketing materials. Customer may revoke this consent at any time for any reason by contacting legal@hellotilt.com. 

9. INDEMNIFICATION

9.1 Tilt Obligations to Customer. Tilt will defend Customer from any and all claims, actions, demands, and suits (“Claims”) made or brought by third parties arising from: (i) Tilt’s actual or alleged breach of this Agreement; (ii) any material inaccuracy or breach of any of Tilt’s representations or warranties in this Agreement; (iii) any material breach, gross negligence or willful non-performance of any covenant, agreement or obligation to be performed by Tilt under this Agreement; or (iv) any intentional act or failure to act that directly and proximately causes material loss or damage to Customer. In each case, Tilt will indemnify and hold harmless Customer from any damages, attorney fees and costs finally awarded to such third parties as a result of such Claims. 

9.2 Customer Obligations to Tilt. Customer will defend Tilt against any and all Claims made or brought by third parties arising from: (i) any material inaccuracy or breach of any of Customer representations or warranties in this Agreement; (ii) any inaccurate, incomplete, or misleading information or data supplied by Customer to Tilt upon which Tilt relies to perform its obligations under this Agreement; (iii) any intentional act or failure to act that directly and proximately causes material loss or damage to Tilt.

9.3 Mutual Obligations. Each Party’s indemnification obligations are contingent upon the other Party: (i) giving prompt written notice of any Claim; and (ii) allowing the indemnifying Party control over the defense and any related settlement, provided that the indemnified Party may participate in the defense of the Claim at its own expense. 

10.  DISCLAIMERS; LIMITATION OF LIABILITY

10.1 Performance Warranty. We warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service. 

In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we do not correct such non-conformance within 60 days from the date when you notified us of the non-conformity (the “Remedy Period”), then you may terminate this Agreement by providing us written confirmation of your request to terminate to legal@hellotilt.com. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service. 

We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.

THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.

10.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE “PERFORMANCE WARRANTY” SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE “PROTECTION OF CUSTOMER DATA” SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, TILT CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, TILT CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

10.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. 

10.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, EITHER PARTY’S LIABILITY ARISING FROM ITS OBLIGATIONS UNDER THE “INDEMNIFICATION’ SECTION” AND EITHER PARTY’S LIABILITY FOR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. 

10.5 Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE.

10.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

11. MISCELLANEOUS

11.1 Amendment; No Waiver. We may modify any part or all of the Agreement by posting a revised version. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email. If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

11.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

11.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

11.5  Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

11.6 Compliance with Laws. We will comply with all applicable U.S. state and federal laws and any other applicable data privacy and security regulations in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. 

11.7 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

11.8 Notices. 

To Tilt: All notices must be sent via email to legal@hellotilt.com and the contact address set forth in the Order Form. Notice will be deemed delivered as of the date of actual receipt.

To you: All notices will be sent to the contact email address as stated in the Order Form. If we cannot reach you via the email address provided, we will use the physical address stated in the Order Form. You must keep all of your account information current.

11.9 Entire Agreement. This Agreement (including any referenced policies and each Order Form along with our Privacy Policy) constitutes the entire agreement between us for the Subscription Service and Consulting Services. It supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service.

11.10 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Tilt affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

11.12 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

11.13 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.

11.14 Insurance.  During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers having A.M. Best ratings of at least A- (VII) or better, liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance (Primary) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate; (ii) Workers’ Compensation & Employers Liability Insurance (as required by the state), with minimum limits of $500,000 Each Accident; (iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $3,000,000; and (iv) Umbrella/Excess Liability Insurance, with a minimum limit of $2,000,000.

11.15 Survival. The following sections will survive the expiration or termination of this Agreement: “Definitions”, “Fees”, “Prohibited and Unauthorized Use”, “Suspension for Non-Payment”, “Effect of Termination or Expiration”, “Intellectual Property”, “Customer’s Proprietary Rights”, “Confidentiality”, “Publicity”, “Indemnification”, “Disclaimers,” “Limitations of Liability”, and “Miscellaneous.”

11.16 Precedence. In the event of a conflict between the terms of the Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.