WayUp Master Services Agreement

This Master Agreement, by and between RECSOLU, Inc., DBA Yello, a Delaware corporation (“Yello”), and the contracting party identified on the Order (“Employer”), together with (i) the applicable Order; (ii)  Acceptable Use Policy, Privacy Policy, and Digital Millennium Copyright Act Policy (collectively, “Policies”), (iii) Job Terms; (iv) if Employer has ordered any Branding Services,  the Branding Terms, and (v) if Employer has ordered Source, Screen & Coach (“SSC”) Services, the SSC Terms (collectively, this “Agreement”), states the entire understanding between the parties relating to its subject matter.  The Job Terms, Branding Terms, SSC Terms, and Policies (collectively, the “Incorporated Documents”) are those available at www.wayup.com/legal. For purposes of this Agreement, all references to WayUp Inc. or WayUp in the Incorporated Documents shall mean RECSOLU, Inc., DBA Yello.

Defined terms have the meanings ascribed to them in this Agreement. “Order” means an Order Form submitted by Employer and approved by Yello. “Order Form” means Yello’s template order form is provided by a Yello salesperson. The term “Order Form” does not include any customer purchase order, insertion order, pre-printed terms, or other customer document. “Services” means, collectively, the Services identified in the applicable Order. “Yello,” “we,” “us,” and “our” refers to RECSOLU, Inc., DBA Yello. “Employer,” “you,” and “your” refers to you and, if you access or use the Services on behalf of a third party, will also refer and apply to that third party. The website at www.wayup.com (the “Site”) and its mobile applications are referred to as, collectively, the “Platform.”

Master Agreement Terms

1. Purpose. Yello offers online job listing, corporate branding, and other promotional services. Employer hereby engages Yello to provide the Services as set forth in the applicable Order(s) and subject to the terms and conditions of this Agreement.
2. Term. This Agreement is effective as of the Effective Date of the first Order entered into by the Employer until terminated in accordance with Section 7 (the “Term”).
3. Payment.
   1. Amounts Due. The Services are subject to timely payment of all amounts due under this Agreement. You agree to pay in U.S. dollars the fees as set forth on the applicable Order; all applicable taxes, government charges, foreign exchange fees, and the like (other than taxes on Yello’s income); and all other charges as provided in this Agreement. Except as set forth in Section 7 with respect to an uncured breach by Yello, all amounts paid are non-refundable. Any outstanding balance, including any remaining scheduled subscription fee(s) in an Order, becomes immediately due and payable upon termination of this Agreement for any reason.
   2. Late Payment. You remain responsible for any uncollected amounts. Yello may charge compounding interest for any overdue amounts at the rate of the lesser of one percent (1%) per month or the lawful maximum, and you agree to reimburse us for all collection and legal costs related to overdue amounts.
4. Intellectual Property. Except as may be specified in the Branding Terms, in connection with this Agreement each party retains ownership of its own trademarks, trade names, trade dress, service marks, and logos (collectively, “Trademarks”) and other intellectual property rights, including without limitation copyrights, patents, trade secrets, or other proprietary rights (collectively, Trademarks and such other rights are referred to as “Intellectual Property Rights”). Each party shall abide by and maintain all applicable notices and restrictions contained in any Information accessed through or Submitted to the Platform. If you choose to provide suggestions or feedback to Yello about the Platform or the Services, you agree that Yello can (but does not have to) use and share such feedback for any purpose without compensation to you. Employer may use Yello’s Trademarks in connection with the Services so long as it complies with any written trademark and branding guidelines delivered to it by Yello. Yello, and Yello may use Employer’s Trademarks in connection with the Services so long as it complies with any written trademark and branding guidelines delivered to it by Employer. Any such use shall inure solely to the benefit of the owner of such Trademarks. Employer agrees not to modify, adapt, translate, disassemble or reverse engineer any aspect or portion of the platform, system, or services.
5. Confidential Information. “Confidential Information” means any non-public information that a reasonable business person under the circumstances would consider confidential that one party (“Discloser”) discloses to the other (“Recipient”), either directly or indirectly, in writing, orally, or by inspection of tangible objects, and includes without limitation Yello’s pricing, metrics, member demographics, and beta features. For the avoidance of doubt, the Information included in Job Postings and other Communications will be disclosed to Candidates not bound by confidentiality obligations and, accordingly, is not Confidential Information. Each party shall use reasonable efforts to prevent the unauthorized disclosure of the other party’s Confidential Information and shall treat the other party’s Confidential Information with the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information (but not less than reasonable care). Each party shall limit access to the other party’s Confidential Information to only those of its employees, independent contractors, accountants, and attorneys having a need to know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein. Each party will use the other party’s Confidential Information only as expressly permitted in this Agreement or as necessary to perform its obligations or enforce its rights in this Agreement. The following information will not be deemed Confidential Information: (i) information that is or becomes publicly available through no fault of either party; (ii) information with regard to a party that was rightfully known, without restrictions on disclosure, by the other party prior to commencement of discussions regarding the subject matter of the Agreement; (iii) information that was independently developed by a party without use of the Confidential Information of the other party; or (iv) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each party shall notify the other party immediately if it becomes aware of any unauthorized disclosure of such other party’s Confidential Information. Each party may disclose the other party’s Confidential Information to the extent such disclosure is required by a valid order of a court or other governmental body having competent jurisdiction, provided that the recipient gives the discloser reasonable prior written notice of such disclosure and uses diligent efforts at its own cost and expense to obtain, or to assist the discloser in obtaining, a protective order, confidential treatment, or other means of preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation requires, or for which the order was issued.
   1. Personally Identifiable Information. You represent, warrant, and agree that, other than your username and Account Information, you will not provide us with any PII, whether Employer PII or the PII of any other party. Each party agrees to comply with all applicable laws governing PII. “PII” means any information that identifies, relates to, describes, or is capable of being associated with, directly or indirectly, a particular individual, including but not limited to his or her name; signature; physical characteristics or description; email or physical address; telephone number; social security, passport, driver’s license, or state identification card number; educational background; employment or employment history; credit card, debit card, bank account, insurance policy, or other financial institution account number; any financial, tax, medical, or health information; or any other sensitive personal information.
      
      Employer hereby acknowledges and agrees that it is not authorized to submit health data, financial data, or social security information into the platform, system or services (“Unauthorized Information”). Yello disclaims all liability in connection with, and Employer agrees to indemnify and hold Yello harmless for, any and all losses, damages, and costs (including reasonable attorneys’ fees) resulting from, Employer’s or Employer’s Authorized Users’ or candidates’ insertion of Unauthorized Information into the platform, system or services.
6. RISK ALLOCATION
   1. DISCLAIMER OF WARRANTIES. THE PLATFORM, SERVICES, INFORMATION, AND CONTENT PROVIDED BY OR THROUGH YELLO OR THE PLATFORM ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT ALLOWED UNDER LAW. NONE OF YELLO NOR ANY COMPANY CONTROLLED, CONTROLLING, OR UNDER COMMON CONTROL OF YELLO (EACH, AN “AFFILIATE”), NOR ANY OF OUR OR THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, DIRECTORS, SHAREHOLDERS, OFFICERS, SUPPLIERS, CONTENT PROVIDERS, PARTNERS, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, TOGETHER WITH YELLO AND YELLO’S AFFILIATES, “YELLO PARTIES”), MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM, SERVICES, INFORMATION, OR CONTENT, AND NONE OF US ASSUMES ANY LIABILITY OR RESPONSIBILITY OR MAKES ANY REPRESENTATION OR WARRANTY (I) THAT ANY OF THEM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (IV) ABOUT THE ACCURACY OF ANY CANDIDATE CONTENT OR OTHER INFORMATION (INCLUDING WITHOUT LIMITATION CANDIDATE QUALIFICATIONS, CANDIDATE IDENTITIES, ETC.); (V) THAT THE PLATFORM, SERVICES, INFORMATION, CONTENT, OR SOFTWARE IS SECURE AND FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (VI) THAT THE RESULTS OF USING THE PLATFORM OR SERVICES WILL MEET YOUR REQUIREMENTS; OR (VII) WITH RESPECT TO ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE IN CONNECTION WITH THE PLATFORM OR SERVICES. YOUR USE OF THE PLATFORM, SERVICES, INFORMATION, AND CONTENT IS SOLELY AT YOUR OWN RISK. THIS AGREEMENT DOES NOT EXCLUDE LIABILITY (IF ANY) TO YOU FOR ANY MATTER THAT WOULD BE ILLEGAL FOR YELLO TO EXCLUDE OR TO ATTEMPT TO EXCLUDE FROM ITS LIABILITY, SUCH AS PERSONAL INJURY OR DEATH RESULTING FROM INTENTIONAL MISCONDUCT OR FRAUD OF YELLO, UNDER APPLICABLE LAW. 
   2. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH BELOW, NONE OF THE YELLO PARTIES  WILL BE LIABLE TO YOU IN CONNECTION WITH THIS AGREEMENT (A) FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, COMPENSATORY, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), WHETHER UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY; OR (B) FOR AN AMOUNT THAT EXCEEDS THE GREATER OF (X) THE TOTAL FEES PAID OR PAYABLE TO YELLO DURING THE 3-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE LIABILITY OR (Y) $500.00, EVEN IF IT KNEW, SHOULD HAVE KNOWN, OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATIONS OF LIABILITY DO NOT APPLY TO (I) PAYMENT, CONFIDENTIALITY, OR INDEMNIFICATION OBLIGATIONS; (II) LIABILITY FOR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL MISCONDUCT; (III) LIABILITY FOR DEATH OR PERSONAL INJURY; OR (IV) VIOLATION OF INTELLECTUAL PROPERTY RIGHTS. THE SERVICES AND PLATFORM MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY YELLO. YELLO HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, THE CONTENT, PRIVACY POLICIES, OR PRACTICES OF ANY THIRD-PARTY WEBSITES. BY USING THE SERVICES AND/OR PLATFORM, YOU EXPRESSLY RELIEVE YELLO FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE. IT IS EMPLOYER’S SOLE RESPONSIBILITY TO COMPLY WITH ALL APPLICABLE LAWS REGARDING ITS USE OF THE SERVICES AND WITH RESPECT TO THE EMPLOYER CONTENT, INCLUDING WITHOUT LIMITATION ALL APPLICABLE EMPLOYMENT AND HIRING LAWS AND REGULATIONS AND ALL RECORD KEEPING AND DATA PROTECTION REGULATIONS IN CONNECTION WITH THE COLLECTION, PROCESSING, DISCLOSURE, ACCESS REQUESTS, RETENTION, AND TRANSFER OF PERSONALLY IDENTIFIABLE DATA UNDER THE LAWS OF THE COUNTRY AND ANY OTHER LOCAL JURISDICTION IN WHICH EMPLOYER IS OPERATING OR COLLECTING AND TRANSFERRING PERSONAL DATA. YELLO SHALL HAVE NO LIABILITY RELATED TO THE EMPLOYER CONTENT PRESENTED TO EMPLOYER’S AUTHORIZED USERS OR END USERS, OR FOR RECORD KEEPING REQUIREMENTS AND DATA PROTECTION OBLIGATIONS APPLICABLE TO EMPLOYER.
   3. Indemnity. You agree to indemnify and defend each of the Yello Parties and hold them harmless from any damages, losses, and costs (including without limitation attorneys’ fees) related to any claims or proceedings arising out of or related to your Employer Communications and other Employer Content (notwithstanding any drafting, review, or approval by Yello, or the creation of any marketing collateral for you by Yello), Employer Destinations, use by you of the Platform and/or the Services, Yello’s performance as instructed by you of the Services (including without limitation any SSC Services), any hiring or employment decisions, and breach of this Agreement, including without limitation with respect (i) to any allegation of discrimination; (ii) any violation or infringement of any Intellectual Property Right or other right of any person or entity; (iii) any Employer Content or Communication that is defamatory, fraudulent, misleading, false, illegal, harmful, or otherwise improper; and (iv) any candidate sourcing, screening, interviewing, coaching, or any other aspect of the hiring process performed by Yello on your behalf. Yello will cooperate as reasonably required in the defense of any claim, and Yello reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Employer. Employer will not settle any claim, action, or demand without the written consent of Yello, which consent shall not to be unreasonably withheld or delayed, unless the settlement solely requires payment of money damages by Employer and involves no cost, loss, or liability risk to Yello.
   4. Essential Element. Each of the provisions of this Section 6 is, individually and collectively, an essential element of the benefit of the consideration reflected in this Agreement.
7. Termination. If either party materially breaches this Agreement, the non-breaching party may terminate this Agreement upon thirty (30) days written notice (or without notice in the case of nonpayment), provided that the breaching party does not materially cure such breach within such period. Employer will pay in full for the Services up to and including the last day on which any of Services are provided. 
8. Survival. The following shall survive termination of this Agreement: the first two paragraphs of this Master Agreement, the defined terms, Sections 3 through and including 10, and the Incorporated Documents.
9. General
   1. Notices. All notices under this Agreement must be in writing and in the English language, and unless otherwise specified in this Agreement must be delivered by personal delivery, private courier, or certified or registered mail, return receipt requested, and will be deemed properly delivered, given, and received (a) when delivered by hand, private courier, or express delivery service; or (b) three business days after being sent by certified or registered U.S. mail or its foreign equivalent. Notices must be sent to the addresses set forth on the most recent Order or as later amended upon written notice to the other. A copy of all notices from you must be concurrently emailed (which emails shall not constitute notice) to contracts@yello.co.
   2. Independent Contractors. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty, or understanding (whether in writing or not) of any person (whether a party to this Agreement or not) relating to the subject matter of this Agreement other than as expressly stated in this Agreement. This Agreement does not create a partnership, agency relationship, employer relationship, or joint venture between the parties.
   3. No Duty. We have no special relationship with nor fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: (i) which users gain access to the Services or Platform; (ii) what Candidate Content you access via the Services or Platform; nor (iii) how you may interpret or use Candidate Content.
   4. Governing Law. This Agreement is governed by the federal and state laws applicable in the State of Illinois without reference to any conflict of laws principles that would apply the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act as adopted by any jurisdiction shall not apply, in whole or in part, to this Agreement. Any action or proceeding (including those arising from non-contractual disputes or claims) related to this Agreement will be brought exclusively in a state or federal court in Cook County, Illinois, and each party irrevocably submits to the jurisdiction and venue of such courts. Notwithstanding the forgoing, to the extent of a violation or threatened violation of intellectual property rights or confidentiality obligations under this Agreement, the affected party may seek injunctive relief, specific performance, other equitable remedies, and other appropriate relief in any court of competent jurisdiction without the posting of any bond or the necessity of proving damages, and the parties irrevocably submit and consent to the jurisdiction and venue thereof. The prevailing party in any arbitration, litigation, or other legal action may recover its reasonable legal fees and costs.
   5. Agents. If you are accessing or using the Services on behalf of a business or third party, you represent and warrant that you have the authority to do so and to bind that business or third party to this Agreement, and you and such business and third party are jointly and severally liable hereunder. If Employer utilizes any agent to act on its behalf in connection with this Agreement, Employer represents and warrants that such agent has the authority to do so and to bind that Employer to this Agreement, and Employer and such agent are jointly and severally liable hereunder.
   6. Current Information Required. You agree to provide to Yello your current, complete, and accurate information for your billing account as reasonably requested by Yello, including your billing address, credit card number, and credit card expiration date (collectively, “Account Information”); to promptly update all such information by contacting Yello’s finance department; and to promptly notify us or our payment processor if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your username or password. Whether or not you provide any of the foregoing information, you agree that we may continue charging you for any fees unless you have terminated your services in accordance with this Agreement.
   7. Change in Amount Authorized. If the amount to be charged to your billing account varies from the amount you preauthorized (other than due to the imposition or change in the amount of applicable sales taxes), we shall provide notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during, at, or shortly after the end of each billing cycle.
   8. Compliance with Laws. You represent, warrant, and agree that you will use the Services and Platform only in compliance with the Policies and all applicable laws and regulations.
   9. Force Majeure. Neither party shall be responsible for failure to fulfil any obligation in this Agreement for so long as, and to the extent to which, it is impeded by any catastrophic or other event, act or condition beyond its reasonable control, including without limitation earthquake, extreme weather, or other act of God; power failure or brown-out, failure of telecommunications or internet, cyber-attack, or mechanical or electronic failure or degradation; and labor disruption, terrorism, mass shooting or other violence, espionage, or governmental action or inaction (a “Force Majeure”); provided that in no event shall a Force Majeure excuse timely payment by Employer of fees and reimbursements to Yello.
   10. Severability. If any phrase or provision hereof is held by a court of competent jurisdiction to be invalid, unlawful, void, or unenforceable, to any extent, the remainder of this Agreement shall remain in full force and effect and such provision shall be deemed modified to be valid and enforceable to the maximum extent permitted by law.
   11. Headings. Titles and headings of Sections of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
   12. Interpretation. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. The word “including” shall mean “including but not limited to.” Any reference to any agreement, document, or instrument will include the exhibits and attachments thereto and will mean such agreement, document, or instrument as amended or modified and in effect from time-to-time in accordance with the terms thereof.
   13. Waiver; Amendment. All waivers must be in writing and signed by an authorized employee of the party to be charged. This Agreement may not be amended, modified, altered, or supplemented other than by a writing signed and delivered on behalf of both parties. Notwithstanding the foregoing, Yello may from time-to-time modify its Jobs Terms, Branding Terms, SSC Terms, and Policies, provided that no modification may be retroactive. If any such modification is material, Yello will provide notice to you (for example, by a notice displayed on the Platform or via the Services, email, text message, or mail) at least thirty (30) days prior to the effectiveness of the modification. If you do not agree to any such modification, you must stop using the Services and the Platform prior to the modification’s effectiveness. You agree that your continued use of the Services thereafter constitutes your consent to the modified terms.
   14. Assignment. Employer may not assign or transfer, by operation of law or otherwise, any rights or delegate any duties under this Agreement to any third party without Yello’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Yello may assign this Agreement or delegate its obligations hereunder to any party without consent of Employer. Subject to the foregoing, this Agreement will inure to the benefit of the parties and their respective successors and permitted assigns.
   15. Priority. In the event of any conflict between an Order and the remainder of this Agreement, the applicable Order will govern. In the event of any conflict among the documents comprising this Agreement (other than the Order), the feature-specific agreement will govern with respect to that feature (i.e., the Jobs Terms will take priority with respect to Jobs Services, and the Branding Terms will take priority with respect to Branding Services).
   16. Entire Agreement. This Agreement states the entire understanding between the parties relating to its subject matter and supersedes all prior and contemporaneous agreements, understandings, and communications, whether written or oral, between the parties relating thereto. There shall be no force or effect to any additional or inconsistent terms, whether pre-printed or not, of any customer-provided purchase order, insertion order, quotation, order acknowledgment, invoice, or the like, even if signed by the parties after the Order Date, and any such terms will not be binding on Yello.