Welcome to Option Driver (“Option Driver”) the online service of Advanced-HR, Inc. (“Advanced-HR,” “we,” “our” or “us”). Option Driver serves as an online information source and management tool to help private, venture-backed companies manage their cash and equity compensation programs.
This Agreement applies to all visitors, users, and others who access the Service on behalf of a company, including but not limited to the customer company themselves and individuals otherwise using any aspect of the Service per customer company request (collectively, “Users”). Service access may have different roles with respect to different types of Users and “you” as used in this Agreement will apply to the appropriate type of User under the circumstances.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. IN ORDER TO BE ABLE TO OFFER YOU THE RATES THAT WE DO FOR YOUR USE OF OPTION DRIVER, OUR BUSINESS MODEL REQUIRES THAT WE LIMIT OUR LIABILITY AND THAT WE NOT NEGOTIATE THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PLEASE INDICATE ACCORDINGLY BELOW AND DO NOT ACCESS THE SERVICE.
THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
This is a contract between you and Advanced-HR. You must read and agree to these terms before using the Service, and if you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Advanced-HR, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. The products and services described on the Service are only available for persons in those jurisdictions in which they may legally be sold. Nothing on the Service shall be considered a solicitation to buy or an offer to sell anything to any person in any jurisdiction in which such offer, solicitation, purchase, or sale would be unlawful.
The Service is offered and available to users who are 18 years of age or older only. By using this Service, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Service.
1B. License for the Option Driver Service
Subject to the terms and conditions of this Agreement, Advanced-HR grants you a non-exclusive, limited, non-transferable, freely revocable license to use the Service solely as permitted by the features of the Service we provide to you on a User-by-User basis. We reserve all rights not expressly granted in the Service and the Advanced-HR Content (as defined below). We may terminate this license and your access to the Service at any time for any reason or no reason. In the event that we terminate this license without cause and there are still at least six (6) months remaining on your subscription, we will provide you with a refund of the pro-rata amount of your subscription fee based on the term of your subscription remaining on the effective date of termination.
1C. Option Driver Accounts
Your Option Driver account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you subscribe to an Option Driver account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You may never use another User’s account without permission. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Advanced-HR immediately of any breach of security or unauthorized use of your account. Advanced-HR will not be liable for any losses caused by any unauthorized use of your account.
By providing your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, instead of postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers.
1D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Advanced-HR servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Advanced-HR grants the operators of public search engines revocable permission to use spiders to copy publically available materials from Advanced-HR.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that may impose an unreasonable or disproportionately large load on our infrastructure, as determined by Advanced-HR; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) using the Service in order to obtain information about Advanced-HR, the Service, or our customers for the purpose of competing with Advanced-HR or otherwise replicating some or all of the Service for any reason; (xi) interfering with the proper working of the Service; (xii) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xiii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content.
Without prior notice, we may: change the Service; stop providing the Service or features of it, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any lawful reason, including if in our sole determination you violate any provision of this Agreement. Upon any such termination, you continue to be bound by this Agreement.
2. Our Proprietary Rights
Except for materials such as logos, trademarks, and service marks owned by our business partners or licensors, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Advanced-HR Content”), and all related intellectual property rights, are the exclusive property of Advanced-HR. Except as explicitly provided herein, nothing in this Agreement grants to you a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Advanced-HR Content. Use of the Advanced-HR Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Advanced-HR under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. By acceptance of your Idea, we do not waive any rights to use similar or related ideas previously known to us, or developed by Advanced-HR employees, or obtained from sources other than you.
3. Individual Service Agreements
Certain features of the Service (“Individual Services”) may have their own terms and conditions that will be presented separately to you and to which you must agree when you sign up for that particular product, function, or service (“Individual Service Agreement”). An Individual Service Agreement supplements this Agreement – the terms and conditions of this Agreement also apply to your use of an Individual Service. If any term of this Agreement expressly conflicts with any term of an Individual Service Agreement, the conflicting term in the Individual Service Agreement will control. All other terms and conditions in both this Agreement and the Individual Service Agreement will remain in force.
4. Recommended Partners
For certain services provided directly to you by third parties chosen by you, such as compensation consulting advice, Advanced-HR may highlight certain providers as “Recommended” by Advanced-HR. Our Recommended Partners have committed to delivering an exceptional product and customer experience, for example with compensation design advice. Advanced-HR holds its partners to the highest standards and is selective in establishing external partnerships with service providers. Advanced-HR sometimes receives compensation from Recommended Partners in connection with its recommendations.
5. Use of Vendors & Contractors
Advanced-HR in its sole discretion may use vendors or contractors to help provide the Service to you, and we may change our use of vendors or contractors without notice to you.
6. Third-Party Services, Links and Information
7. Privacy and Data Security; Account Information
8. No Professional Advice
If we provide you any professional information in the course of providing the Service, it is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any such information without first seeking independent professional advice from a person who is licensed and/or qualified in the applicable area.
For clarity, you will be solely responsible for: (i) compliance with any and all applicable laws, rules, and regulations affecting your business; and (ii) any use you may make of the Service to assist in complying with any such laws, rules, or regulations. The Service does not include any legal, regulatory, accounting, or tax advice, and you will rely solely upon your own advisors with respect to such advice.
9. No Warranty; Indemnity
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ADVANCED-HR OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, ADVANCED-HR, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
ADVANCED-HR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND ADVANCED-HR WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, EXCEPT IN THOSE CIRCUMSTANCES IN WHICH ADVANCED-HR EXPRESSLY AGREES TO BE A PARTY TO A TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify and hold harmless Advanced-HR and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy, right provided by any labor or employment law, rule, or regulation, or intellectual property right; (iii) your violation of any applicable law, rule or regulation; (iv) any content or Account Information that is submitted via your account including without limitation misleading, false, or inaccurate information; (v) your gross negligence or willful misconduct; or (vi) as a result of your fault, any other party’s access and use of the Service (or access and use of any third-party service via the Service) with your unique username, password or other appropriate security code (or, with respect to third-party services, your Account Information).
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADVANCED-HR, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL ADVANCED-HR BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADVANCED-HR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN THE SERVICE OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) ACCOUNT INFORMATION OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. ADVANCED-HR, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AGGREGATE AMOUNT EXCEEDING THE AMOUNT YOU PAID TO ADVANCED-HR HEREUNDER IN THE 12 MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ADVANCED-HR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is designed for the use of employers located in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
11. Governing Law, Arbitrations, and Class Action/Jury Trial Waiver
11A. Governing Law
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Each party agrees to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which the other party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. Each party agrees that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ADVANCED-HR. For any dispute, each party agrees to first contact the other and attempt to resolve the dispute informally. In the unlikely event that the parties have not been able to resolve a dispute after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Advanced-HR agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing a party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of data security, Intellectual Property Rights or other proprietary rights.
11C. Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ADVANCED-HR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12A. Refund Policy
You may cancel your subscription at any time; provided, however, that except as explicitly provided in Section 1B above, all amounts paid are non-refundable, and no refunds will be issued for unused subscription time.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Advanced-HR without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
12C. Notification Procedures and Changes to the Agreement
12D. Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Advanced-HR in connection with the Service, shall constitute the entire agreement between you and Advanced-HR concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
12E. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
12F. Contact & Customer Support
The provider of services is Advanced-HR, Inc., 870 Market Street, Suite 319, San Francisco, CA 94102. You can reach us by telephone at 1-415.362.2200. Please contact us at info@Advanced-HR.com with any questions regarding this Agreement.
This Agreement was last modified on JULY 6, 2015.