COMPANY’S TERMS OF USE

By clicking “Login,” you acknowledge that you have read and agree to the Company’s Terms of Use pertaining to the STAYappreciated talent program (“STAYappreciated”) as well as the OC Tanner Terms of Use (collectively referred to as “Terms”).  The site is a Company-Dedicated Site, as defined in the OC Tanner Terms of Use.

As an associate of ESA Management, LLC (the “Company”), you agree that entering your log-in credentials and clicking “Login” to activate your account will constitute your legally binding electronic signature to the Terms.  If you do not agree, you may exit out of the acceptance process.

I understand that STAYappreciated is a program available to current employees (called “associates”) of the Company and that my participation is voluntary.  I further understand that my employment does not require the downloading or use of the software.  I further understand that use of the app may impact data on my phone or electronic device and because participation is voluntary and not required, the Company is not responsible for any related costs. 

I understand that the desktop version of the app is accessible on the Company’s Lobby site, any computer with internet capabilities, or in hard copy upon request.  I further understand that I will be required to use a unique username and password to access and agree not to share my log in credentials.

I understand and agree that no content published via this application constitutes a contract of employment or a promise of continued employment.  Further, I understand and agree that the receipt of any award will not be considered for purposes of my performance evaluation, compensation, disciplinary action or other terms and conditions of employment. My employment remains at will.

I understand that by choosing to participate, I may be eligible for, but not entitled to, awards in the form of points that may be redeemed for select qualifying merchandise. I understand that awards are granted at the sole discretion of the Company. Awards are not guaranteed and are not based on any predefined, individual or measurable performance criteria. If I choose not to participate in STAYappreciated or otherwise have not successfully logged in to activate my account, then I understand that I will not be able to redeem any points that I may be awarded, and any such points may expire, and may no longer be redeemed, as of the date that is six (6) months from the date that I received the award; I understand and agree that the unclaimed points will be forfeited if the STAYappreciated account is not activated within the aforementioned 6-month timeframe.  I understand that the Company may cancel, rescind or amend the STAYappreciated program at any time, in its sole discretion. I understand that if I am a recipient of the “clean, safe, everything works” property award, then the value of my award will be used to rerate my hourly pay for the purpose of calculating the overtime pay due to me, if I actually worked overtime hours during the period that the award was redeemed.

I understand and agree that any awards I may receive will be issued only during my employment and must be redeemed during my employment, or no later than thirty (30) days after my separation from the Company.

If I choose to use the software or otherwise participate in STAYappreciated, I understand that I must comply with all Company policies, including but not limited to those in the Associate Handbook and any applicable State Supplement. 

I also understand that I may be eligible for Company-sponsored sweepstakes from time to time in connection with STAYappreciated (the “Sweepstakes”).  Any Sweepstakes will be communicated separately from this software to all eligible associates.  The Official Rules for the active Sweepstakes also will be available (and updated, as applicable) in these Terms of Use and in hard copy.

All changes to these Terms are effective immediately when we post them. 

 NOTHING PUBLISHED IN THIS APPLICATION IS INTENDED TO (A) VIOLATE ANY LOCAL, STATE OR FEDERAL LAW; (B) LIMIT ANY CONCERTED ACTIVITIES BY ASSOCIATES RELATING TO THEIR WAGES, HOURS OR WORKING CONDITIONS, OR ANY OTHER CONDUCT PROTECTED BY SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT OR (C) PROHIBIT AN ASSOCIATE FROM REPORTING CONCERNS, MAKING LAWFUL DISCLOSURES, OR COMMUNICATING WITH ANY GOVERNMENTAL AUTHORITY OR OTHER AGENCY CHARGED WITH ENFORCEMENT OF ANY LAWS ABOUT CONDUCT THE ASSOCIATE BELIEVES VIOLATES ANY LAW OR REGULATION.

END-USER LICENSE AGREEMENT

1. Certain Definitions. The following are certain key definitions used in the End-User License Agreement (“EULA”) below:
   1. “Documentation” means the standard user documentation for the Software, if any.
   2. “Intellectual Property Rights” means all intellectual property rights and proprietary rights throughout the world, including without limitation, copyright, patent, trademark, trade name, trade dress, service mark, know-how, trade secret, moral rights, design rights, and database rights, and all rights of registration and renewal.
   3. “Software” means the object code version of the Company’s application, and any bug fixes and related minor updates, but excluding any upgrades that provide new features or functionality.
2. Grant of License. The Company grants you a non-exclusive, non-transferable, revocable and non-sublicenseable limited license to use the Software and Documentation in accordance with the terms and conditions of this EULA. The rights granted herein are subject to any applicable associate process, policy, manual and rules that apply to accessing Company materials. Your contractual rates to download or use the Software that apply between you and your wireless carrier or internet service provider will apply.
3. No Sale.  You acknowledge and agree that these copies of the Software and Documentation have been licensed to you pursuant to the terms and conditions of this EULA and those copies of the Software and Documentation have not been sold to you.  In addition, you acknowledge that these copies of the Software and Documentation are not subject to the “first sale” doctrine as that term is defined in United States copyright laws.
4. ESA Associate Sweepstakes. From time to time ESA may provide you the opportunity to participate in internal sweepstakes or surveys through the Software.  If you participate, ESA may request input and information from you in order to participate, and such information would be subject to this EULA and the Company’s Privacy Policy. Participation in these surveys or sweepstakes is completely voluntary and not required for you to complete your employment obligations, and you therefore have a choice whether or not to participate or disclose information. Use of the Software and any sweepstakes should not interfere with your employment obligations.  Each sweepstakes may have additional rules, terms and conditions that will be presented to you at the applicable time. Those additional rules, terms and conditions are incorporated herein by reference if you chose to participate in the applicable sweepstakes.
5. Scope of License. You may not:  (a) reverse engineer, decompile, or disassemble the Software; (b) correct, modify, adapt, or create derivative works of the Software or Documentation; (c) work around any technical limitations in the Software; (d) install, copy, or use the Software or Documentation other than as expressly specified in this EULA; (e) publish the Software or Documentation for others to copy; (f) rent, lease, or lend the Software or Documentation; (g) use the Software or Documentation as part of commercial software hosting services; or (h) use the Software or Documentation in violation of this EULA or in any way that is against the law.
6. Proprietary Rights.
   1. Retained Rights. All rights not expressly granted are reserved by Company and its software suppliers who retain all rights, title and interest in and to the Software and Documentation.
   2. Security Measures. You agree to hold the Software and Documentation in confidence. You agree not to provide the Software nor Documentation to any other party without the written consent of Company.
   3. Proprietary Notices. You agree not to remove or alter any copyright, trademark, service mark, patent notice and/or any other references to protected rights contained in whatever form in the Software and Documentation.
7. Reporting Problems. You may report problems with the Software by providing the relevant details to [email protected].
8. WARRANTY DISCLAIMER.  You expressly acknowledge and agree that use of the Software and/or Documentation is at its sole risk and that the entire risk as to satisfactory quality, performance, accuracy, loss of data, and effort of the Software and/or Documentation is with you.  Company does not warrant that the operation of the Software will be error-free, uninterrupted, or that functions and features of the Software will meet your requirements or provide you with specific results.

To the maximum extent permitted by applicable law, the software AND DOCUMENTATION ARE provided “as-is,” “with all faults,” and without warranty of any kind.  Company hereby disclaims all warranties and conditions with respect to the software, any services or information available through it, or failure of or failure to provide support or other services, either express, implied or statutory (if any), including, but not limited to, the warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of quiet enjoyment, of accuracy or completeness, of workmanlike effort, of correspondence to description, of lack of negligence, of lack of viruses OR HARMFUL COMPONENTS, or of infringement of third-party rights. No oral or written information or advice given by Company will create a warranty.

Some jurisdictions, local and international, do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so some of the above exclusions and limitations may not apply to you.

9. LIMITATION OF DAMAGES AND LIABILITY.
   1. To the maximum extent permitted by applicable law, in no event will Company, ITS CONTRACTORS OR AFFILIATES be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever.
   2. EXCEPT FOR PURCHASES THAT MAY BE AVAILABLE FROM TIME TO TIME WITHIN THE SOFTWARE, THERE ARE NO CHARGEs OR FEEs ASSOCIATED WITH YOUR USE OF the SOFTWARE. AS SUCH, AND Notwithstanding any damages that YOU MAY incur for any reason whatsoever, the entire liability of Company, ITS CONTRACTORS OR AFFILIATES under any provision of this EULA, and YOUR exclusive remedy hereunder will be limited to $1. The foregoing limitations, exclusions, and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10. Additional Software. This EULA also applies to updates and/or upgrades to the original Software and Documentation provided by Company or OC Tanner, unless Company or OC Tanner provides other terms along with such additional licenses, updates and/or upgrades. Supplemental software code, profiles, and templates, parameters, business rules and algorithms, which are created by Company as part of its support and or professional services, as well as all specifications and Company scope of work documents related to the Software shall be considered proprietary to Company and are subject to the Proprietary Rights section of this EULA as though they were the Software.
11. Termination.  Once you have accessed the Software, the licenses and rights provided to you by this EULA are effective until terminated. Your rights to the Software and Documentation terminate automatically without notice from Company if you fail to comply with this EULA or upon separation from ESA Management, LLC. You can remove or disable the Software at any time.
12. Internet Updates. The Software may connect to Company or its service provider over the Internet from time to time to obtain updates or additional components for installation. You may not receive a separate notice when the Software makes this connection, or upon installation of such updates or components. by using the software, YOU consent to the transmission of such information.
13. Governing Law/Jurisdiction/Dispute Resolution.  THIS EULA AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT GIVING EFFECT TO THE PRINCIPLES THERE OF RELATING TO THE CONFLICTS OF LAW. EACH PARTY IRREVOCABLY AGREES THAT ANY LEGAL ACTION, SUIT, OR PROCEEDING BROUGHT BY IT IN ANY WAY ARISING OUT OF THIS EULA MUST BE BROUGHT SOLELY AND EXCLUSIVELY IN CHARLOTTE, NORTH CAROLINA, AND EACH PARTY IRREVOCABLY ACCEPTS AND SUBMITS TO THE SOLE AND EXCLUSIVE JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM, GENERALLY AND UNCONDITIONALLY WITH RESPECT TO ANY ACTION, SUIT, OR PROCEEDING BROUGHT BY IT OR AGAINST IT BY THE OTHER PARTY.
14. Injunctive Relief. You agree that, in addition to any other rights or remedies which Company may have at law or in equity, Company shall be entitled to injunctive relief in any court of competent jurisdiction for any breach or threatened breach of the terms and conditions of this EULA.  You agree that any breach of this EULA constitutes irreparable harm and that monetary damages alone do not provide Company adequate relief.
15. Miscellaneous.
    1. Any provisions of any state law adopting exactly, or in modified form, the Uniform Computer Information Transactions Act (“UCITA”) shall not be applicable to this EULA.  Furthermore, each party hereby waives any and all rights arising from any such laws.
    2. This EULA represents the entire agreement between the parties with respect to its subject matter, and there are no other representations, warranties, understandings, or agreements between the parties relative to such subject matter, and shall not be modified or affected by any course of dealing, course of performance, or usage of trade.
    3. No delay or omission by Company to exercise any right or power it has under this EULA shall impair or be construed as a waiver of such right or power. A waiver by Company of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights. Company, its contractors and affiliates shall not be responsible or liable for any failure in performance or loss or damage due to any cause beyond their control.
    4. If any provision of this EULA is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. This EULA shall be given equal consideration in its construction and interpretation without regard to which party drafted it.
    5. This EULA, and any portion of it, may not be assigned without Company’s prior written permission. Any such assignment or attempted assignment shall be void ab initio. This EULA shall inure to the benefit of Company’s permitted successors and assigns.  Company can freely assign this EULA and any of its obligations hereunder to any third party.

By logging in to the software with your ID and password, you acknowledge that you understand and agree to these Terms.

STAYappreciated Sign-Up Sweepstakes

NO PURCHASE OR PAYMENT IS NECESSARY TO ENTER OR WIN THIS SWEEPSTAKES AND WILL NOT INCREASE YOUR CHANCES OF WINNING.

ELIGIBILITY:   Must be 18 or older to enter to participate in the above-listed Sweepstakes.   Open only to actively employed associates of ESA Management, LLC (“Sponsor”) at the close of the Sweepstakes Period (defined below), excluding the following: officers, associates who are Vice-Presidents or of higher position, Human Capital associates (Human Resources, Procurement, Purchasing, and Operational Excellence), and those associates managing the Sweepstakes.

SWEEPSTAKES PERIOD:  The Sweepstakes begins on the first calendar day of the above-listed Entry Month at 12:00:01 a.m. Eastern Time (“ET”) and ends on the last calendar day of the above-listed Entry Month at 11:59:59 p.m. ET (the “Sweepstakes Period”).

HOW TO ENTER:    During the Sweepstakes Period, sign up for your STAYappreciated account as instructed in Sponsor’s instructions.  Those persons who sign up during the Sweepstakes Period, will receive one (1) automatic entry in the Sweepstakes.  You must remain signed up and in good standing through the entire Sweepstakes Period to receive the entry.  All entries must be received by the end of the Sweepstakes Period.   Limit one (1) entry per eligible person.

DRAWING AND WINNER NOTIFICATION:   The above-listed Number of winner(s) of the Sweepstakes will be randomly selected from all eligible entries received throughout the Sweepstakes Period.  The random drawing will be conducted on or about the first business day after the close of the Sweepstakes Period.  The potential winner(s) will be notified by telephone, mail, or email using the contact information available to Sponsor.  Sponsor shall have no liability for any winner notification that is lost, intercepted or not received by a potential winner for any reason.  If a potential winner does not respond within two (2) days after the first notification attempt, or if the prize or prize notification is returned as unclaimed or undeliverable to such potential winner, such potential winner may be disqualified and an alternate winner may be selected.  If any potential winner is found to be ineligible, or if he or she has not complied with these Official Rules or declines a prize for any reason prior to award, such potential winner will be disqualified, and an alternate winner may be selected. Each potential winner may be required to execute an affidavit of eligibility, a liability release, and (where legal) a publicity release.

PRIZES/ODDS:    Each of the verified winners will receive one (1) Prize (see definition above).  The Prize has the approximate retail Value listed above.  Any gift card or stored-value card prize is subject to certain terms and conditions as specified by issuers.

To the extent allowed by law, winner is solely responsible for the payment of any taxes that may be due as a result of the acceptance or use of any prize.  Prize is non-transferable and no substitution by winners or cash equivalent is allowed. Sponsor reserves the right to substitute prize for one of comparable value if the advertised prize becomes unavailable.  Any prize is awarded "AS IS."  Neither Sponsor nor any other Sweepstakes Entity makes any warranty or guarantee, either express or implied (including, without limitation, quality, merchantability and fitness for a particular purpose) in connection with this Sweepstakes or any prize.

Odds of winning depend on the number of eligible entries received.

CONDUCT: All sweepstakes participants agree to be bound by these Official Rules. Sponsor in its sole discretion reserves the right to disqualify any person it finds to be tampering with the entry process, the operation of the web site or is otherwise in violation of these rules.

GENERAL PROVISIONS:  To the extent allowed by applicable law, acceptance of a prize constitutes winner’s permission for Sponsor to use winner’s name, photograph, likeness, voice, biographical information, statements and address (city and state/country) for advertising and/or publicity purposes worldwide and in all forms of media now known or hereafter developed, in perpetuity (or for as long as allowed under applicable law), without further compensation except where prohibited by law.  Entrants (and any minor entrant’s parent or legal guardian) agree, to the extent allowed by applicable law, that Sponsor and its parents, subsidiaries, affiliates, franchisees, or any advertising, sweepstakes or other agencies or suppliers involved in this Sweepstakes shall not be responsible or liable for, and are hereby released from, any and all costs, injuries, losses or damages of any kind, including, without limitation, death and bodily injury, due in whole or in part, directly or indirectly, to participation in the Sweepstakes or any Sweepstakes-related activity, or from entrants’ acceptance, receipt, possession and/or use or misuse of any prize.

By entering, you agree, to the extent allowed by applicable law,  that (i) any and all disputes, claims, and causes of action arising out of or in connection with the Sweepstakes, or any prize awarded, shall be resolved individually without resort to any form of class action; (ii) any claims, judgments and awards shall be limited to reasonable and actual out-of-pocket costs incurred, including costs associated with entering the Sweepstakes, but in no event attorney's fees; and (iii) under no circumstances will any entrant be permitted to obtain any award for, and entrant hereby waives all rights to claim, punitive, incidental, indirect or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for reasonable and actual out-of-pocket expenses.  To the fullest extent permitted by law, entrant agrees that any and all disputes, claims and causes of action arising out of or connected with this Sweepstakes or the awarding of prizes shall be resolved individually, without resort to any form of class action, and exclusively by the United States District Court for the Western District of North Carolina or an appropriate North Carolina State Court.  All issues and questions concerning the construction, validity, interpretation and enforceability of these Official Rules or the rights and obligations of the entrant and Sponsor in connection with the Sweepstakes shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any choice of law or conflict of law rules (whether of the State of North Carolina or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the State of North Carolina.

WINNER LIST: Verified winners will be announced through a company-wide e-mail on May 15, 2021.