TriNet Cloud License Agreement and Terms of Service

These Terms of Service govern Your Use of Our various Software and Cloud Services.

UPDATED 17 August 2018

1. Acceptance Of Terms

These Terms of Service (“Terms”) govern your, your Users’ (as defined below), and the legal entity with which TriNet Cloud has a written contract (collectively, “You” or “Your”) use of TriNet-provided or enabled software, applications, or cloud services (each a “Cloud Service”), including but not limited to those provided through or in conjunction with TriNet web sites such as  Learning ManagementPerformance ManagementApplicant TrackingExpense Management, Time and Attendance, and TriNet Work Chat (collectively, the “Site”). Each Cloud Service is operated by or provided through TriNet Group, Inc. or its subsidiaries (collectively, “We,” “Us,” “Our,” or “TriNet Cloud”).

By using, accessing, or downloading any Cloud Service or data therein (“Using”) through You or Your or Your affiliates’, employees, agents, or contractors (collectively, “Users”), You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, and that all information You provide and have provided to Us is timely, accurate, and complete in all respects, and such Use is solely done in accordance with the written agreement between You and TriNet Cloud. Through Your Use of a Cloud Service, You acknowledge, warrant, and represent that you have the authority to bind to these Terms  Your applicable legal entity or business organization with which TriNet Cloud has a written agreement. If you do not have such authority, or if you do not agree with these Terms, You and Your Users may not Use a Cloud Service.

You acknowledge that these Terms constitute a contract between You and TriNet Cloud, even though it is electronic and is not physically signed by You and TriNet Cloud, and that these Terms and Your written agreement with TriNet Cloud concerning the provision of a Cloud Service constitute the entire agreement between the parties regarding Your Use of the applicable Cloud Service and the Site, and supersedes in its entirety all other oral or written agreements You may have concerning a Cloud Service or the Site.  In the event of a conflict or inconsistency between these Terms and Your written contract with Us, these Terms shall control in all respects. 

2. License & Restrictions

If We have a TriNet Services Requisition or other written contract with You granting You access to a Cloud Service, We grant You a limited, personal, non-transferable, non-sublicensable, and non-exclusive right to Use such Cloud Service solely as set forth in such agreement, for the term thereof and subject to these Terms, and solely in conjunction with Your internal human-resource needs.

TriNet Cloud retains all other rights, title, and interests not explicitly set forth directly above, including those in: (a) the Site and Cloud Services, and (b) any documents, guides, specifications, user manuals, or other materials that describe the Site or a Cloud Service, their operation, or matters related to their use, whether provided in published written material, on magnetic media, or communicated by electronic means (“Documentation”).

You agree that You and Your Users will not (and will not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code in a Cloud Service, or sell, assign, sublicense, grant a security interest in, allow access to additional Users beyond the access granted by Us, or otherwise transfer any right in a Cloud Service or the software therein.  

You further agree not to (a) allow a Cloud Service to be accessed by third parties, (b) modify the software, its source code, or object code in any manner or form, (c) introduce, add, or upload any additional software, code, program, or script, (d) use versions of a Cloud Service other than that which is currently being provided by Us, (e) access a Cloud Service by any means other than through the interface that is provided by TriNet Cloud, or (f) use a Cloud Service or the Site to access data or information of other TriNet Could customers or its employees or users.

3. Customer Data, Feedback, and Data Protection

Any information, documentation, data, or materials uploaded, saved, or housed by You on a Cloud Service (collectively, but excluding Feedback, “Customer Data”) may be used by Us as required by law or as may be reasonably necessary for us to provide a Cloud Service or other service to You.  Subject to the foregoing, we acquire no other right, title or interest in Customer Data, including any Intellectual Property Rights therein, except as otherwise set forth herein. We will, however, have the permanent right to aggregate and use, for any lawful purpose, the data generated by your or your Users’ Use of the Site or a Cloud Service.  TriNet Cloud may not review, check, update, or verify Customer Data and assumes no responsibility for its accuracy, truthfulness or usefulness.  You assume full and complete responsibility for reviewing and verifying any and all Customer Data, including without limitation its usefulness, truthfulness, accuracy, completeness or currency

You agree to not post any Customer Data or information that is unlawful, fraudulent, discriminatory, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable or that contains sexual, ethnic or racial or other discriminating slurs, or material which contains no relevant or constructive content, which goes beyond profanity into obscenity or abhorrence, or which is otherwise in violation of the law. Users are also prohibited from posting any Customer Data that contains proprietary information, trade secrets or confidential information. Customer Data may not contain any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by Us), or encourage or cause spamming or flooding. 

You are prohibited from posting, saving, or uploading any Customer Data containing (a) official identification information of a person on the Site, such as social security number, passport number, national identification number, insurance number, credit card number, driver’s license number, immigration number, or any other similar number, code, or identifier, or (b) a person’s medical history or medical treatment or diagnosis by a health care professional.

You are solely responsible for the unlawful or improper use of any TriNet hosted communication tool or application, including but not limited to TriNet Work Chat (“Work Chat”).  You agree that You and Your employees have no right of ownership or control with respect to Work Chat data, messages, or files, whether supplied or created by You, Your employees, or third parties (“WC Data”). TriNet makes no warranties or representations regarding the retention, security, monitoring, or maintenance of WC Data. In the absence of a lawful warrant or subpoena, requests for WC Data will not be granted except as determined by TriNet in its sole discretion.

Although We and Our Other Services have no obligation to do so, We or Our third party software partners may monitor Customer Data and reserve the right to delete (a) any content that violates the above rules, (b) messages, topics that are unrelated to the specific portion of the website on which they are posted, (c) advertisements, recruiting or other commercial messages, and (d) any other User content that Other Services deems in its sole discretion is inappropriate. If you believe a message violates Our policies, please contact the Us immediately so that We can consider its editing or removal. Other Services do not promise to remove any User Content, and interpretation of whether User content violates any applicable policy always remains within the sole discretion of third party. We and each Other Service reserve the right to disclose all Customer Data and other relevant information and the circumstances surrounding transmission to any third party in order to operate the Site properly; to protect itself, its partners and its visitors; and to comply with legal obligations or governmental requests.

Any feedback, questions, comments, suggestions, improvements, ideas, techniques, or the like (collectively, “Feedback”), that you send to Us will be treated as Our sole intellectual property. By submitting to Us any Feedback, You hereby transfer and assign all such Feedback to Us and any and all rights to any intellectual property therein. References to any names, marks, products or services of third parties or hypertext links to third party sites or information do not necessarily constitute or imply TriNet Cloud's endorsement, sponsorship or recommendation of the third party, information, product or service.

We will maintain commercially reasonable administrative, physical, and technical safeguards in accordance with applicable laws for protection of the security, confidentiality and integrity of Customer Data received and stored by Us in accordance with these Terms.

4. Privacy Policy

TriNet Cloud is committed to protecting Your privacy. Your use of the Site, TriNet.com group of websites, and Our use of Your personal information therewith, is governed by the terms of the TriNet Terms of Use and Privacy Policy currently set forth at https://www.trinet.com/company/terms#pp or such other public Uniform Resource Locator (URL) as we may designate from time to time.

5. Member Account, Password and Security

You warrant that You and Your Users are all at least eighteen (18) years old.  You are solely responsible for maintaining the confidentiality of your applicable usernames, passwords, or other login information required to access a Cloud Service or the Site.  Your Users’ Login ID and password, together with any mobile number or other contact information You provide, form the "Registration Information". You agree to provide true, accurate, current and complete information about Your Users and their respective identities.

You agree to: (a) notify us immediately of any unauthorized use of a password or account, or if You believe a password has been lost or stolen or any other breach of security; (b) ensure that You and Your Users exit and log off from their respective accounts at the end of each session; and (c) accept responsibility for all usage of a Cloud Service and any fees associated with use of other services accessed through a Cloud Service on your account.

You further agree and acknowledge that TriNet Cloud may monitor and maintain access to all Your TriNet Cloud accounts, and take whatever actions therewith reasonably necessary to provide Our various services. TriNet Cloud may rely on information about You or Your Users from third party information providers.

6. Online and Mobile Alerts

If provided by Us, electronic alerts may be sent to the email address You have provided.  In order to receive mobile device alerts, You will need to provide Us a proper mobile number.  If Your email address or Your mobile device’s number changes, You are responsible for informing Us of that change, and we are not responsible for alerts sent to third parties accessing Your current or former email addresses or phone numbers provided to Us.  Changes to Your email address or mobile number will apply to all of your alerts.  Alerts may include Your TriNet Cloud Login ID and some information about your accounts.  Depending upon which alerts You select, information such as an account balance or the due date for Your credit card payment may be included.  Anyone with access to Your email will be able to view the content of these alerts.

7. Term

Your license described herein to Use a Cloud Service terminates upon the earlier of (a) termination as provided herein, and (b) termination of the written agreement You have with Us authorizing Your Use. However, these Terms govern Your and Your Users’ Use of a Cloud Service and Site at all times, and the disclaimers, indemnities, limitations of liability, provisions, obligations, and restrictions on You and any User herein, all survive indefinitely. You agree that TriNet Cloud, in its sole and absolute discretion, may terminate Your license herein, Your or Your Users’ passwords, accounts (or any part thereof) or use of the Cloud Service, for any reason and without notice, if TriNet Cloud believes that (a) You or Your Users have violated these Terms, (b) Your or Your Users’ Use or access to a Cloud Service jeopardizes others’ accessibility to Our services or affects the rights, obligations, or liabilities of TriNet Cloud or a third party, (c) You have violated Your written agreement with TriNet Cloud, or (c) You have become insolvent or are likely to undergo bankruptcy, reorganization, or insolvency proceedings. You agree that TriNet Cloud will not be liable to you or any third party for any such termination.

8. Agency

You hereby expressly authorize TriNet Cloud to act as Your agent and to process requests for Your accounts through or with any service provider for whom You provide Us account access information. You authorize TriNet Cloud to legally represent You to Your service providers through this interface as necessary to provide Our various human resource and Cloud Services.

9. Professional Advice

You acknowledge that We are not providing any legal, tax, accounting, insurance, or benefits advice and that use of a Cloud Service does not necessarily ensure compliance with any laws or regulations. You acknowledge that all information is provided only as general information and may not conform to the laws in Your state or jurisdiction or reflect the most current legal developments in any geographic or substantive area. If You require legal, tax, accounting, insurance, or benefits advice or assistance You should obtain the services of a competent professional expert knowledgeable in the applicable area.

10. Intellectual Property

We and our respective suppliers and licensors, reserve all rights, including all “Intellectual Property Rights”, with regard to the Site, a Cloud Service, Documentation, and any all other content, information, documents, materials, ideas, functions, data, processes, know-how, inventions, provided to You therewith, accessible by You or a User, or communicated by Us to You in any medium. No rights are granted to you hereunder other than as expressly set forth in these Terms. 

For purposes of these Terms, “Intellectual Property Rights” means all forms of intellectual property rights and protections in any country or other jurisdiction of the world including, without limitation, all right, title and interest in all associated: (a) issued patents and all filed or pending applications for patents, including any continuations, continuations in part, reissues, reexaminations, substitutions, and extensions thereof, in any country or other jurisdiction in the world; (b) trade secrets and all trade secret rights, rights in our non-public or confidential information, and any similar rights arising under the laws of any country or other jurisdiction; (c) copyrights, mask works, moral rights, and other literary property or author's rights, whether or not protected by copyright, moral right, or as a mask work; and (d) trademarks, trade names, symbols, brand names, and logos.

11. Representations, Warranties, & Acknowledgements

We represent and warrant to you that (i) upon delivery, a Cloud Service will perform materially in accordance with the applicable User Documentation, (ii) upon delivery, we will use commercially reasonable efforts to ensure that Cloud Service provided to you contains no computer virus, Trojan horse, worm or other similar malicious code, although we do not warranty that our Cloud Services are free from all bugs, errors or omissions, and (iii) that a Cloud Service and its Documentation shall not infringe upon or misappropriate the United States intellectual property rights of a third party.  These warranties are solely for the exclusive benefit of the legal entity with whom TriNet Cloud has a written contract concerning the Cloud Service, and may not be extended to any other person or entity.  For any breach of the warranties stated above, we will, at our expense, use commercially reasonable efforts to repair or replace the applicable Cloud Service.  To the extent that we cannot repair or replace the applicable Cloud Service in a commercially reasonable manner, as determined in Our discretion, Your sole and exclusive remedy for a material breach of the warranties in this section shall be immediate termination of the Cloud Service or the written agreement governing its provision, and a refund of any unused, pre-paid fees paid by You specifically for the Cloud Service if You were billed such fees outside of TriNet Cloud’s co-employment billing model.

You represent and warrant to us that you will verify the accuracy of and update Customer Data as necessary for us to provide a Cloud Service, that you have the unencumbered right to possess and use all Customer Data entered into a Cloud Service by You or a User, and that no third party other than You and Your Users have any rights in such Customer Data.

To the extent a Cloud Service generates or provides a report, document, analysis, calculation, or information based on data or information provided by You (including Customer Data) (a “Report”), You agree and acknowledge that it shall be Your responsibility to review and confirm the accuracy of such Report and whether it satisfies Your objectives. Such Reports shall be expressly subject to all of the various warranty disclaimers and limitations of liability in these Terms.

You agree and acknowledge that You are solely responsible for all equipment, hardware, and connectivity necessary to access a Cloud Service that is not explicitly provided by Us to You under Your written agreement with Us.  You further agree to provide Us or Our representatives with physical or remote access to such hardware or equipment to the extent necessary for Us to perform Our services for You, comply with Our obligations herein, or provide You with the Cloud Service, as determined in our discretion.

12. Indemnity

You agree to indemnify, defend, and hold TriNet Cloud, and its parents, subsidiaries, affiliates, officers, agents, vendors, co-branders or other partners, and employees, harmless from any and all third party (including Your employees’) claims, costs, fines, damages, expenses, liabilities, penalties, suits, or judgments, including reasonable attorneys' fees, arising out of (a) Your Use of or access to Your Customer Data or data of another customer or client of Ours, (b) Your Use of the Site or a Cloud Service other than as authorized by these Terms and Your written agreement with TriNet Cloud (c) Your combination of a Cloud Service with a product, service, or offering not provided by Us, (d) Your violation of these Terms, (e) Your violation of any rights of another, (f) third party claims resulting from termination of Your Cloud Service in accordance with these Terms, or (g) a third party alleging that Customer Data, or your use of a Cloud Service other than as permitted in these Terms, or the combination of a Cloud Service with products or services not delivered by us, infringes or misappropriates the intellectual property rights of a third party or violates applicable Law. TriNet Cloud reserves the right to assume the exclusive defense and control of any matter requiring indemnification by You hereunder, in which event You shall fully cooperate with TriNet Cloud in asserting any of Our desired defenses.

13. DISCLAIMER & EXCLUSIONS

OUR CLOUD SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT, DOCUMENTATION, AND DATA THEREWITH, IS OFFERED AND MADE AVAILABLE HEREIN EXCLUSIVELY ON AN "AS IS" BASIS.  UNLESS EXPRESSLY SET FORTH IN SECTION 11 OF THESE TERMS, TRINET CLOUD EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY, OF FITNESS FOR PARTICULAR PURPOSE, of reliability or availability, of accuracy or completeness of responses, of results, and lack of negligence, all with regard to a Cloud Service, Documentation or a report.  YOU DISCLAIM ANY AND ALL SUCH WARRANTIES, LIABILITIES OR CLAIMS AGAINST US AND IRREVOCABLY RELEASE US FROM ANY AND ALL DAMAGES ARISING FROM ANY CLOUD SERVICES or its documentation or reports, INCLUDING A SERVICE OR OFFERING FOR WHICH WE ACT SOLELY AS BILLING AGENT.

TRINET CLOUD EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY REPRESENTATION OR WARRANTY OF ANY KIND THAT A CLOUD SERVICES, THE SITE OR ANY CONTENT HEREIN OR AVAILABLE FROM OR THROUGH OTHER PARTIES OR SITES ACCESSIBLE HEREBY, ARE FREE FROM DEFECTS OR ERROR FREE, THAT ANY DEFECTS WILL BE CORRECTED, THAT A CLOUD SERVICE WILL MEET YOUR NEEDS OR REQIUREMENTS, THAT A CLOUD SERVICE WILL OPERATE UNINTERRUPTED, OR THAT ANY THIRD PARTY CONTENT OR COMPONENT WILL CONFORM TO ANY STANDARD.

14. LIMITATION OF LIABILITY

TRINET CLOUD DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES EXPRESSLY SET FORTH IN THESE TERMS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER TRINET CLOUD NOR ITS EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR LOST REVENUES, HOWEVER CAUSED AND EVEN IF TRINET CLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT OUR AGGREGATE LIABILITY TO YOU WITH RESPECT TO OUR CLOUD SERVICES, THE SITE, EQUIPMENT, A PROFESSIONAL SERVICE, OR ANY INCIDENT(S) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, AND ANY ALL CLAIMS OR CAUSES FOR ACTION UNDER THESE TERMS, WILL NOT EXCEED THE MONTHLY, PER-WORKSITE EMPLOYEE FEES PAID BY YOU IN ANY TWELVE (12) MONTH PERIOD, OR, IF YOU ARE NOT A CO-EMPLOYMENT CUSTOMER OF TRINET, THE AGGREGATE SUBSCRIPTION FEES BY YOU FOR THE CLOUD SERVICE IN QUESTION IN ANY TWELVE (12) MONTH PERIOD. EACH PARTY FURTHER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SUBSCRIPTION(S) AND PROFESSIONAL SERVICES PROVIDED FOR IN THIS AGREEMENT AT THE FEES AGREED TO BY THE PARTIES. THE DISCLAIMER AND REMEDY LIMITATION IN THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

15. Modifications to Cloud Services

TriNet Cloud reserves the right at any time and from time to time to upgrade, update, sunset, modify, or discontinue, temporarily or permanently, a Cloud Service (or any part thereof) with or without notice. You agree that TriNet Cloud will not be liable to you or to any third party for any such upgrade, update, modification, suspension or discontinuance of a Cloud Service; provided, however, that if TriNet Cloud discontinues or terminates Your Cloud Service under this Section 15, then as Your sole and exclusive remedy You shall be entitled to a refund of any unused and pre-paid fees paid specifically for such Cloud Service, to the extent You were billed pre-paid subscription fees for Your Cloud Service outside of TriNet Cloud’s co-employment bundled billing. 

16. Waiver of UCITA

WAIVER OF UCITA. THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE OR OTHER GOVERNING AUTHORITY IN ANY FORM ("UCITA"), WILL NOT APPLY TO THESE MASTER TERMS OR THE ONLINE ADDITIONAL TERMS AND, TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT-OUT OF ITS APPLICABILITY PURSUANT TO ITS PROVISIONS.

17. Export Compliance and Use Restrictions

Certain content and software components of the Service may be subject to U.S. export control and economic sanctions laws. If you are subject to U.S. laws, you agree to comply with all such laws and regulations as they relate to such software and content, and access and use of the Service. You agree not to access or use the Site or a Cloud Service if you are located in any country in which the U.S. is currently prohibited from doing business with by the federal government, ("Prohibited Jurisdictions"), and you will also not provide access to the Site or Cloud Service to any government, entity or individual located in the Prohibited Jurisdictions.

18. Third Party Services

A Cloud Service may contain links to, or otherwise may allow you to connect to and use, certain third party products, services or software (collectively, "Other Services"). If You decide to access and use such Other Services, be advised that Your Use is governed by, and You agree to comply with, the terms and conditions of such Other Services.  Your Use of any Other Service is provided “AS-IS”, we expressly disclaim any and all warranties regarding such Other Services to the fullest extent allowed under law, and we do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle data. TriNet Cloud is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Other Services, or your reliance on the privacy practices or other policies of such Other Services.

19. Force Majeure

We will not be responsible for interruptions in performance or delays due to matters beyond Our reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, strikes or other labor problems, failures, unavailability or delays of hosting providers or internet service suppliers, computer malfunctions, telecommunications failures, or online attacks.

20. Notices

By providing us with Your e-mail address, You agree that we may transmit all legal and required notices in connection with these Terms electronically to that e-mail address or to such other physical mailing or electronic address as You or a User have provided to Us. It is Your responsibility to update or change that address, as appropriate. Notices may be provided in HTML (or, if your system does not support HTML, in plain-text) in the text of the e-mail or through a link to the appropriate page on our site, accessible through any standard, commercially available internet browser. We may also provide notices of changes to these Terms, a Cloud Service or other matters may be provided by displaying notices or links to notices generally on the Site.

21. Governing Law, Dispute Resolution & Class Action Waiver

These Terms are governed under the laws of the State of Delaware, without regard to its rules concerning Conflicts of Laws.

Except for claims arising out of Your failure to satisfy Your payment obligations under these Terms or Your written agreement with TriNet Cloud, any dispute, claim or controversy arising out of or related to the Site, a Cloud Service, or these Terms or the performance, enforcement, breach, termination, validity or interpretation thereof, including the determination of the scope or applicability of this agreement to arbitrate, that cannot be resolved by You and Us through good faith informal negotiation between the parties within a reasonable period of time (not to exceed thirty (30) days after written notice of a claim or dispute), will be settled by binding arbitration conducted before one neutral arbitrator, and governed by the Federal Arbitration Act, 9 U.S.C. §§ 10 and 11 (“FAA”).

Notice of the demand for arbitration will be filed in writing by either party to the other party and with the American Arbitration Association (the “AAA”). The demand for arbitration will be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event will any such demand be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. The arbitrator’s decision will be final except for any applicable right of appeal or review under the FAA. Any court or jurisdiction over the parties may enforce the arbitrator’s award. Awards exceeding fifty thousand dollars ($50,000) will include the arbitrator’s written opinion providing reasoned explanations for the decision.

Any arbitration will be conducted by the AAA under its Commercial Arbitration Rules. Unless otherwise agreed to by the parties, the arbitration will be held in Alameda County, California. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees and legal costs.

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. You and We hereby knowingly, voluntarily, and irrevocably waive the right to trial by jury, and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute will be decided solely by a judge, without the use of a jury, sitting in a court of competent jurisdiction in Alameda County, California.

Notwithstanding the foregoing, either party may immediately bring a proceeding seeking preliminary injunctive relief in a court of competent jurisdiction in Alameda County, California, which shall remain in effect until a final award is made in the arbitration.

22. Billing, Plan Modifications and Payments

If a Cloud Service is included as part of Your bundled HR services contract with TriNet, then the billing and payment provisions of that contract with TriNet will control. If a Cloud Service is not included in another contract with TriNet, then a Cloud Service is made available on a pay-as-you-go basis and is charged at the start of your elected subscription term (generally monthly or annually). Your subscription will renew automatically based on Your plan’s renewal cycle.

If You choose to upgrade Your plan during your elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to Your account. Subsequently, You will be charged the adjusted rate on Your next billing cycle. Regardless of your billing cycle, there are no refunds or credits for partial months of a Cloud Service, plan downgrades, or refunds for unused time if You close Your account before the end of Your subscription period. Downgrading Your plan level may cause the loss of content, features, or capacity of Your account and TriNet Cloud does not accept any liability for such loss. TriNet Cloud reserves the right to terminate the subscription if you maintain exceptionally high usage or impose other excessive stress on a Cloud Service.

If you fail to pay your subscription fee on time, or if Your credit card payment information is entered in error or does not go through for processing and You do not update payment information upon our request, Your entire subscription may be suspended or cancelled.  Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying all Taxes in connection with fees and charges assessed with Your Cloud Service, except those assessable against TriNet Cloud based on its income. We may invoice you for such Taxes if assessed and applicable in Our discretion.

23. Federal Government End Use Provision

If you are a United States federal government end user, a Cloud Service is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, a Cloud Service is licensed to You only as Commercial Items and only with the rights as provided under these Terms.

24. Miscellaneous

You acknowledge that You have read these Terms, have had the opportunity to review it with an attorney of Your respective choice, and agree to all its terms. Under these circumstances, the parties agree that the rule of construction that a contract be construed against the drafter shall not be applied in interpreting these Terms, and that in the event of any ambiguity in any of the terms or, such ambiguity shall not be construed for or against any party hereto on the basis that such party did or did not author same.

These Terms, together with Your written contract with TriNet, if any, constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between TriNet Cloud and You regarding the Site and a Cloud Service. Provided, however, that in the event of a conflict between Your written agreement with TriNet and these Terms, these Terms shall control in all respect. No modification or amendment of these Terms will be effective unless in writing executed by both parties.

If any provision of these Terms is held by a court of competent jurisdiction to be contrary to applicable law, the provision will be interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect

You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent

No failure or delay by either Party in exercising any right under these Terms will constitute a waiver of that right.

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, co-employment, or agency relationship between the parties.

There are no third-party beneficiaries to these Terms, including Your Users or employees.

Headings used herein are for convenience only and will not limit, control or add to the meaning of any term, provision or condition.