Last updated: April 17, 2023
IMPORTANT – READ CAREFULLY: This is a legally binding agreement (“Agreement”) between you, the end user (“Licensee”) and LABOR TITAN LLC (“LABOR TITAN”) which governs use of the LABOR TITAN product purchased by you from LABOR TITAN, including proprietary workforce and wage data, analysis, forecasts, and custom reports (“Information”) and any software, documentation and supporting materials, whether printed or on other tangible medium (“Media”) or in electronic form (collectively, the “Product”).
This Product is subject to protection under the United States Copyright Laws and may be used only in accordance with the terms and conditions of this Agreement.
By authorizing payment and receiving the Product and/or information, registering for a free trial, downloading, or accessing the Labor Titan portal you acknowledge you have read, understood, and agree to be bound by the terms of this Agreement.
Wherefore good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereby agree as follows:
1a. Product is licensed, not sold. All rights not expressly granted herein are reserved by LABOR TITAN or its licensors. Subject to this agreement, LABOR TITAN grants Licensee a non-exclusive, non-transferrable, and non-sub-licensable license to use the Product solely for Licensee’s own internal purposes for the term of this Agreement to permit Licensee access to and use of 1) the object code version of the software and related documentation (if any) identified on the Order Form, Online Order Portal, and/or 2) the Information, data, documents, plans, specifications, and addenda (if any) included as part of the Product and identified on the Order Form and/or Online Order Portal
1b. The license granted by this agreement shall transfer and vest in only one (1) personal individual as identified on the Online Order Portal, and may not be transferred, shared, made accessible to, or assigned to any third party.
1c. LABOR TITAN may make bulk use licenses available to groups of personal individuals or business entities (i.e. corporation(s), limited liability company(ies), sole proprietorship(s), group(s), association(s), or other entity or affiliation carried on for business purposes) subject to additional charges quoted on an individual basis. If, the Licensee entering into this Agreement is a business entity (i.e. corporate, limited liability company, sole proprietorship or other entity carried on for business purposes as previously defined ), the bulk use Licensee may permit its employees or members to use the Product solely on behalf of the Licensee, and, if provided in electronic form, may make a reasonable number of copies as necessary for such internal use only, but in no event shall the number of copies made exceed ten (10) in number, provided all users and all copies created thereby shall be retained in the possession of Licensee or its employees. The copyright notices of LABOR TITAN may not be removed and shall be included on all copies. Licensee shall use reasonable procedures and efforts to ensure that limitations on, access to, and use of the Product are not exceeded, and will ensure all users agree to and are bound by the restrictions in this Agreement. Licensee shall hold the Product in confidence and not distribute, disclose, make available or accessible, or disclose any Product or Information to any third-party except as set forth in the following paragraph.
1d. Licensee may incorporate small excerpts of Information from the Product into Licensee’s reports and similar documents (other than formal legal and financial documents)(“Licensee Documents”) provided that: 1) each Licensee Document shall be used solely in Licensee’s company or be a customized document specially prepared for a single customer of Licensee, subject to a written agreement with terms at least as protective of LABOR TITAN’s rights as this Agreement; 2) in no event shall Licensee Documents be made available for general sale or distribution; 3) the amount of Information in each Licensee Document must be an insubstantial portion of the overall Information in the Product, and be insubstantial and incidental to the overall Licensee Document; and 4) a source citation identical to the citation that follows this provision shall be prominently cited on each page or screen display containing Information with any applicable LABOR TITAN proprietary or copyright notice, and Licensee Documents must state that LABOR TITAN does not guarantee accuracy and use of Information, and any conclusions drawn, are solely the responsibility of Licensee. Cite as follows: “Source: LABOR TITAN LLC, Wheaton, IL Copyright [Year]. LABOR TITAN does not guarantee the accuracy of this data. The use of this data and the conclusions drawn from it are solely the responsibility of [Licensee].”
1e. Licensee may not otherwise reproduce, distribute, sublicense, transfer or disclose any of the Product, or use any of the Product to develop or commercialize any data product or service or provide any of the Product for download over a network. Licensee may not reverse engineer or reverse analyze the Product, except to the extent such may not be restricted under applicable law.
1f. Licensee may not share their password or ID used to access the Product, Information, goods and/or services to any third-party without express written permission by LABOR TITAN.
1g. Neither Licensee nor any of its employees, agents, and/or affiliates shall provide any false or misleading information to LABOR TITAN.
1h. LABOR TITAN reserves the right to monitor the use of the Product by Licensee in order to determine compliance with this agreement.
1i. LABOR TITAN may modify, add to, or delete the Product or Information, or portions thereof, and/or change the media or format of the Product or Information, at any time, in its sole discretion without liability to Licensee. To the extent commercially practicable, LABOR TITAN shall provide Licensee with notice of any material change in the Product or Information. Upon issuance of notice of any material change, Licensee shall be deemed to have accepted the changes, provided that if a modification, addition, or deletion substantively and adversely affects the functionality of the Product or Information for Licensee’s purpose, Licensee may terminate this Agreement within seven (7) days after notice has been given provided that notice of termination is made in writing to LABOR TITAN within the time prescribed.
1j. If specified on the Order Form and/or Online Order Portal, Licensee shall provide LABOR TITAN with certain content, information and/or materials (“Customer Content”) owned or licensed by Licensee or its agents, employees, and/or affiliates for inclusion in the Product or Information. In addition, Licensee shall provide LABOR TITAN with a URL so that LABOR TITAN may use its automated content collection technology and other processes periodically to collect Customer Content from Licensee’s (or Licensee’s agent’s or affiliate’s) website. Licensee shall be fully responsible for the operation and maintenance of any such Customer Content and LABOR TITAN shall have no liability in the event Customer Content is inaccessible. Licensee hereby authorizes LABOR TITAN to use, transfer, distribute, and otherwise publish or disseminate Customer Content through its Products and services, as well as through the products and services of its other licensees, resellers, and distributors.
1k. Licensee represents and warrants that: 1) the Customer Content will be free of material errors; 2) Licensee owns or possesses sufficient rights to the Customer Content to provide it to LABOR TITAN pursuant to this Agreement and to allow LABOR TITAN to use the Customer Content, and to use and transfer the Customer Content, without violating the intellectual property, privacy, or other proprietary rights of any third-person or any agreement or other commitment that is binding on Licensee; and 3) the Customer Content shall be free from viruses, worms, malware, or destructive properties (collectively referred to as “Harmful Code”). LABOR TITAN has the right, but not the obligation, to screen the Customer Content for Harmful Code, but in no event shall LABOR TITAN be liable for any damage caused to Licensee or any other person for Harmful Code contained in Customer Content. Licensee is solely responsible for the form, content, and quality of all Customer Content, including the accuracy and completeness thereof. Licensee assumes all risk of use or transfer of Customer Content by LABOR TITAN. LABOR TITAN and its licensees shall not be liable for any use of Customer Content or for any loss, damage, or destruction of any Customer Content, or for the replacement of any Customer Content. LABOR TITAN reserves the right to limit disk space for data hosted by or on behalf of Customer and to charge customary fees for hosting any Customer Content and/or data.
1l. LABOR TITAN reserves the sole right and discretion to decide which portions, if any, of Customer Content will be classified, indexed, or transferred. LABOR TITAN has the right, but not the obligation, to edit or exclude any Customer Content for any reason.
2a. Licensee agrees to pay LABOR TITAN’s fees for the Product, Information and services set forth on the Order Form and/or Online Order Portal, upon receipt of each invoice prior to delivery of the Product or credits, goods and/or services. LABOR TITAN may increase or decrease its fees at any time, with or without notice, effective as of the next Renewal Term, if any.
2b. All Fees are payable and will be invoiced annually in advance.
2c. Online portal credits for benchmarking and forecasting are issued once invoice amounts are paid in full.
2d. The licenses purchased via this Agreement are valid for one year from the date of purchase. The date of use does not impact the license expiration date.
2e. The license purchased by this Agreement shall automatically renew for another one (1) year term, unless Licensee provides written notice to LABOR TITAN of Licensee’s intent to terminate this agreement not less than thirty (30) days before the end of the current term. Labor Titan will send a renewal notice 60 days prior to license expiration.
2f. Licensee hereby expressly agrees to be charged an additional 1.5% per month on all past-due invoices and amounts.
2g. LABOR TITAN may, but is not obligated, to accept payment via credit cards. In the event LABOR TITAN accepts payment by credit card, Licensee hereby authorizes LABOR TITAN to charge Licensee’s credit card for the amount of fees and charges set forth in each invoice, plus applicable sales tax and other charges.
2h. Fees and charges due and payable under this Agreement shall be non-cancelable and non-refundable, except that LABOR TITAN may, in its sole discretion, refund any fees and/or charges paid for future services in the event Licensee or LABOR TITAN terminates this Agreement pursuant to the terms contained herein.
2i. All Fees are in USD and do not include any taxes that may apply, including but not limited to any sales, use, value-added, withholding, GST, VAT or similar taxes or levies. Any such taxes are the responsibility of Customer.
2j. Any failure by Licensee to pay fees when due shall constitute a material breach of this Agreement.
LABOR TITAN warrants that Media (if any) will be free of material defects under normal use for 90 days from shipment. LABOR TITAN does not warrant Product will meet Licensee requirements or be error-free. Information may contain errors from third parties or be inadvertently introduced by LABOR TITAN. Forecasts and projections are uncertain and future data may differ substantially. Licensee’s sole and exclusive remedy under this limited warranty shall be, at LABOR TITAN’s option, to either repair or replace the Media, or refund the purchase price actually paid to and received by LABOR TITAN. The preceding remedy is available only if Licensee returns the Product to LABOR TITAN with proof of purchase within the warranty period. LABOR TITAN makes no other promises, representations, or warranties, either express, implied statutory, or otherwise, with respect to the product or information, including its condition, accuracy, or conformity to any description, and LABOR TITAN specifically disclaims all implied warranties of merchantability, noninfringement, and fitness for a particular use.
LABOR TITAN’s liability arising out of this agreement shall not exceed the amount paid for the product. LABOR TITAN shall not be liable for any reliance on or conclusions drawn from the PRODUCT, Information, or any claim against LABOR TITAN BY licensee OR any other party, or any consequential, incidental, special, indirect, or exemplary damages arising out of this agreement or product, even if advised of the possibility thereof. These limits shall apply notwithstanding failure of essential purpose of any limited remedy and the amount paid reflects this allocation of risk.
Product, Information, and documentation are deemed “commercial computer software” and “commercial computer software documentation” pursuant to the U.S. Department of Federal Acquisition Regulation §227.7202 and 48 U.S.C.F.R. §12.212, as applicable. Use, reproduction or disclosure by the U.S. Government shall be governed solely by this Agreement and is prohibited except as expressly permitted herein.
Customer shall not (and shall not permit its employees or any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Products, (ii) modify, copy, translate or create derivative works based on the Products, (iii) rent, lease, distribute, assign or otherwise transfer or encumber rights to the Products, (iv) use the Products for the benefit of a third party, (v) use the Products to build or improve anything competitive with any of the Products or Labor Titan offerings, (vii) interfere or attempt to interfere with the proper working of the Products or any activities conducted on the Products, (viii) bypass any measures Labor Titan may use to prevent or restrict access to the Products (or networks connected to the Products) or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion thereof relating to the Products (or any information made available through the Products), whether through manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Products, including, but not limited to, uploading Customer Data onto the Products.
7a. Either party may terminate this Agreement if the other party materially breaches this Agreement and the breaching party fails to cure such breach within thirty (30) days after receipt of written notice of the breach. If this Agreement is terminated due to Labor Titan's material breach, Labor Titan shall promptly refund to Customer any prorated pre-paid Fees for subscriptions that would have been provided after the date of termination. If this Agreement is terminated due to Customer’s material breach, Customer will pay Labor Titan in full all Fees, if any, owing for the remainder of the Order Form Term and shall not be entitled to any refunds of pre-paid Fees.
7b. Upon any termination of this Agreement, Licensee shall immediately discontinue any and all use of the Product, Information, goods and/or services, and shall immediately destroy any/all copies of the Product, Information, goods and/or services, including adaptations and merged portions thereof, in any and all forms, then in the possession or under the control of Licensee, its agents, employees, and/or affiliates. Licensee shall certify and provide proof of such destruction upon request.
Licensee hereby acknowledges and agrees that any breach of this Agreement by them may result in damage to LABOR TITAN that may not be measurable and would not adequately be compensated by monetary damages. Therefore, in the event of any breach, or threatened breach, of any provision of this Agreement by Licensee, its agents, employees, and/or affiliates, LABOR TITAN shall be entitled to seek specific performance, preliminary and permanent injunctive and other appropriate equitable relief without posting any bond and without proving that monetary damages would be an inadequate remedy. The equitable remedies contemplated hereunder shall not be exclusive but shall be in addition to any and all other remedies by which LABOR TITAN may be entitled.
Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, fire; flood; earthquake; denial of service attacks; pandemics; Internet failures; acts of war; labor disruptions; or any laws, acts or restraints of any government or governmental authority.
10a. This Agreement and rights hereunder may not be assigned, gifted, or otherwise transferred, either directly or indirectly, by Licensee without prior written consent of LABOR TITAN. This is the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior or contemporaneous representations, understandings, commitments, or agreements by a party or between the parties, whether written (including e-mail and text) or oral. No waiver or modification of this Agreement shall be valid unless memorialized in writing signed by both parties. The waiver of any breach or term shall in no way be construed as a waiver of any other breach or term. If any of the provisions is held to be contrary to law, the remaining provisions shall remain in full force and effect. This Agreement is governed by the laws of the State of Illinois, without reference to conflict of laws principles. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction, forum, and venue of the Circuit Court of DuPage County, State of Illinois, and the parties agree and submit to the personal and exclusive jurisdiction of this court. LABOR TITAN reserves the right to withhold Product, Information, goods and/or services at any time with or without notice in the event Licensee’s account is found not to be in good standing. The headings contained in this Agreement are for informational and convenience of reference purposes only, are not a part of the Agreement, and shall not affect its interpretation. In the event that any provision hereof or any obligation hereunder is found invalid or unenforceable pursuant to judicial or other tribunal, decree, or decision, any such invalidity or unenforceability shall be deemed and construed to extend only to the maximum permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms. The language of all parts of this Agreement shall, in all cases, be construed according to its fair meaning and not strictly for or against any of the parties, regardless of which party drafted this Agreement. This Agreement may be executed by manual, facsimile, electronic, and/or email signatures in accordance with the Federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. 96 et seq.) and Illinois’ Electronic Commerce Security Act (5 ILCS 175/1 et seq.) and in counterparts, each of which shall be deemed an original and all which together shall constitute one and the same instrument. Any and all ancillary agreements between the parties are incorporated in this Agreement by this reference. Except as otherwise provided in this Agreement and except as otherwise provided in any Ancillary Agreement by specific reference to the applicable provision of this Agreement, if any provision contained in this Agreement is in conflict with, or inconsistent with, any provision in any Ancillary Agreement, the provision contained in this Agreement shall govern and control.
10b. No Party shall be deemed in default of this Agreement or any Ancillary Agreement, unless otherwise expressly provided therein, for any delay or failure to fulfill any obligation (other than a payment obligation) hereunder or thereunder so long as and to the extent to which any delay or failure in the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure. (Force Majeure shall include, but not be limited to: acts of God, acts of war or terrorism, healthcare pandemic, shortage of supply, power failures, or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest.) In the event of any such excused delay, the time for performance of such obligations (other than a payment obligation) shall be extended for a period equal to the time lost by reason of the delay. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide written notice to the other Party of the nature and extent of any such Force Majeure condition; and (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement and the Ancillary Agreements, as applicable, as soon as reasonably practicable.
10c. LICENSEE HEREBY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY SUCH DISPUTE OR CONTROVERSY. LICENSEE EXPRESSLY AGREES THAT IT WILL NOT COMMENCE OR PARTICIPATE IN ANY CLAIM BROUGHT AS ANY TYPE OF CLASS, COORDINATED OR AGGREGATED SUIT, ACTION OR OTHER PROCEEEDING OR RECEIVE OR RETAIN, DIRECTLY OR INDIRECTLY, AND HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES AND RELEASES ANY RIGHT TO RECEIVE OR RETAIN, ANY MONETARY OR OTHER BENEFIT AS A RESULT OF ANY SUCH SUIT, ACTION OR PROCEEDING.
10d. The parties to this Agreement have been represented by counsel or have been given the opportunity to be represented by counsel, in the preparation and execution of this Agreement and agree that it expresses the mutual intent of the Parties.
All notices delivered by Labor Titan to you under this Agreement will be delivered via email or regular mail to the contacts set forth on the applicable Order Form. Notices to Labor Titan under this Agreement should be sent by email to support@labortitan.com or by first class mail to LABOR TITAN LLC, 2206 N. Main St., Ste. 236, Wheaton, IL 60187
