OTrecruit Acknowledgment for Orangetheory® Fitness Franchisees
By clicking “Agree” and/or using the OTRecruit services (the “Service”), you hereby affirm that you are the authorized representative of the Franchisee and/or are entitled to act on Franchisee’s behalf, and you acknowledge and agree as follows:
- The Service has been made available to you to help you identify job applicants for your Orangetheory® Fitness studio(s). You are not obligated in any way to use this website to identify and select your employees. OTF Franchisor, LLC and its affiliates (collectively “Franchisor”) are under no obligation to maintain the Service and may discontinue it at any time. Franchisor will not recommend any applicants for employment, nor will it verify the accuracy of the information provided by any such job applicants. If you choose to hire any applicants through the Service, you will be their exclusive employer and, as such, are solely responsible for any and all employment related matters arising out of or in any way connected thereto. Franchisor has set some default settings and CareerPlug has provided some best practices in the Service in order to ensure it is a functional product and Franchisor strongly recommends Franchisee consult with its attorneys and/or other advisors when deciding whether to use and how to setup and use the Service. By using the Service, Franchisee represents and warrants that Franchisee has reviewed all default settings and best practices and made all adjustments necessary to comply with any and all relevant employment laws or other applicable rules and regulations. Franchisee is solely responsible for any use of the Service by Franchisee or any employee or agent of Franchisee.
- Franchisee’s use of the Service is at Franchisee’s own risk, and is governed by that certain Master Service Agreement entered into by and between CareerPlug, LLC (“CareerPlug”) and Ultimate Fitness Group, LLC, effective October 26, 2020 (the “MSA”). Franchisee has read and understands the provisions of the MSA, a copy of which is available in Franconnect. The MSA, and its contents, are confidential information of CareerPlug and Franchisor, and Franchisee will not disclose it or any portions thereof to any third party. Franchisee agrees to abide by the provisions and limitations of liability set forth in the MSA as if Franchisee were the “Customer” listed in the MSA. Franchisee hereby confirms that it has read and understands the foregoing provisions.
USER TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING “AGREE” USER IS AGREEING TO BE BOUND BY THIS AGREEMENT.
This agreement is between CareerPlug LLC, a Texas limited liability company (CareerPlug), and you, the user (User).
- HUMAN RESOURCES SOFTWARE SERVICE. This agreement provides User access to and usage of an Internet based human resources software service as further outlined at: www.careerplug.com (Service). User has been provided access to this Service by a customer of CareerPlug.
- USE OF SERVICE
- User Owned Data. User grants CareerPlug the right to use all data, files, content and other information for purposes of performing under this agreement (User Content).
- Responsibilities. User (i) must keep its passwords secure and confidential; (ii) is solely responsible for User Content in and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify CareerPlug promptly of any such unauthorized access; (v) must ensure that no virus or destructive code is uploaded to the Service; and (v) may use the Service only in accordance with the Service’s technical documentation and applicable law.
- LEGAL DISCLAIMER. CAREERPLUG STRIVES TO KEEP ITS SERVICE ACCURATE, CURRENT AND UP-TO-DATE, BUT BECAUSE THE LAW CHANGES RAPIDLY AND IS SUBJECT TO DIFFERENT INTERPRETATIONS BY THE COURTS, CUSTOMER SHOULD NOT RELY ON THIS SERVICE FOR ANY TYPE OF LEGAL ADVICE OR AS THE SOLE METHOD OF LEGAL COMPLIANCE. CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL LAWS WHEN USING THE SERVICE OR THE GENERATED REPORTS.
- GENERAL DISCLAIMER. CAREERPLUG DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE CAREERPLUG TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, CAREERPLUG DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. USER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
- MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). CareerPlug’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
- Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by CareerPlug as part of the Service are the proprietary property of CareerPlug and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with CareerPlug. User may not remove or modify any proprietary marking or restrictive legends in the Service. CareerPlug reserves all rights unless expressly granted in this agreement.
- Restrictions. User may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
- Aggregate Data. During and after the term of this agreement, CareerPlug may use non-personally identifiable data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
TERM AND TERMINATION.
- Term. This agreement continues until terminated by either party without cause.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
- Return CareerPlug Property Upon Termination. Upon termination of this agreement for any reason, User must destroy or return all property of CareerPlug. Upon CareerPlug’s request, User will confirm in writing its compliance with this destruction or return requirement.
- Suspension for Violations of Law. CareerPlug may temporarily suspend or terminate the Service (or both), if it in good faith believes that as part of using the Service User has violated a law or if User has unpaid amounts under this agreement. CareerPlug will attempt to contact User in advance.
- EXCLUSION OF INDIRECT DAMAGES. CareerPlug is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.
- TOTAL LIMIT ON LIABILITY. CareerPlug’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed $100.
- INDEMNITY. If any third-party brings a claim against CareerPlug related to User’s acts, omissions, or User Content within the Service, User must defend, indemnify and hold CareerPlug harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
- GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Travis County, Texas, and User submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- OTHER TERMS.
- Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. User is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
- No Assignment. Neither party may assign or transfer this agreement to a third party, except that this agreement may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
- Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Feedback. By submitting ideas, suggestions or feedback to CareerPlug regarding the Service, User agrees that such items submitted do not contain confidential or proprietary information; and User hereby grants CareerPlug an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
- Reference. User agrees to allow CareerPlug to use its name and logo in its marketing communications and materials, in accordance with User’s trademark guidelines and policies.