During the term of this agreement, provided timely payment of the applicable fees, Company shall (i) provide Customer access to the System modules listed on any applicable Order Form (SaaS Services), along with associated Support (Support Services) and (ii) perform any professional services, including, but not limited to, implementation, training and other consulting services (Professional Services), listed on any applicable Order Form(s) and described in any attached Statement of Work (“SOW”). SaaS Services and Professional Services are referred to herein as the “Services”. Customer authorizes Company to provide the Services and agrees to pay the associated fees as set forth in any attached Order Forms and additional Exhibits or SOWs as the parties may agree to from time to time.
Company will provide to Customer access to the System modules listed on any Order Form(s) for the Subscription term indicated therein. Access to the SaaS Services is limited to the version of the System in Company’s production environment. Company regularly updates the SaaS Services and reserves the right to add and/or substitute functionally equivalent features from time to time at its sole discretion. Company will provide Customer online access to and use of the SaaS Service via the Internet by use of a Company-approved Customer-provided browser. The Service will be hosted on a server that is maintained by Company or its designated third-party supplier or data center.
Affiliates of either party may execute an Order Form and/or enter into a SOW under this Agreement. The contracting Affiliate assumes the rights, privileges, protections and responsibilities of the original contracting party under this Agreement with respect to the applicable SOW. The contracting Affiliate, and not the original contracting party, will be solely liable for its obligations (including payment) and liability of any name or nature under the Order Form or SOW. A party will assert any claim arising out of or related to the Order Form or SOW (including, but not limited to, execution, inducement to enter into, performance, non-performance, or breach) only against the contracting Affiliate.
This Agreement shall be effective for the period of time indicated on the applicable Order Form (“Initial Term”) and shall automatically renew for successive twelve (12) month terms (“Renewal Terms”) at the fee then in effect for the option selected by the Customer plus the associated standard uplift percentage(%), unless terminated as set forth herein. The Effective Date for the Initial Term is upon Company’s notification to Customer of software delivery for the SaaS Subscription set forth on the Order Form. Either party may terminate this Agreement, for any reason, with at least forty five (45) days’ prior written notice to the other party, with such termination to be effective at the end of the then-current term. We may suspend or terminate your accounts or cease providing you with all or part of the Software at any time for any reason, including, but not limited to, if we reasonably believe:(i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Software is no longer commercially viable. In such a termination event, the license granted hereunder shall automatically terminate. In all such cases, the Terms shall terminate, including, without limitation, your license to use the Software, except that the following Sections shall continue to apply: Billing & Payment, Taxes, No Liability for Customer Procedures, Warranty & Disclaimer, Confidential Information, Company Intellectual Property, Rights Granted, General Provisions. Nothing in this Section shall affect Company’s rights to change, limit, or stop the provision of the Software without prior notice, as provided above. In the event your account is suspended or terminated, Customer will still be responsible for any outstanding payment.
Unless otherwise agreed, fees are due to Company no later than thirty (30) days following the date of execution of the Order Form. Interest accrues on past due balances at the lesser of a one and a half percent (1½%) per month or the highest rate allowed by law. If Customer fails to make timely payments of any undisputed fees, Customer shall be in material breach of the Agreement. In the event of such payment breach, Company will be entitled to suspend any or all Services upon ten (10) days written notice to Customer and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Company. Payment of fees is under no circumstances subject or conditioned by the delivery of future Software or functionality not otherwise set forth in the Agreement. Company will submit an invoice for the subsequent term’s Service Fee, plus the applicable annual fee increase, to Customer at least sixty (60) days before the expiration of the Initial Term or any Renewal Term. If an undisputed amount owed by Customer for the Initial Term, or any subsequent Renewal Terms becomes more than sixty (60) days past due, Customer’s access to the Company System may be interrupted until payment is received.
Unless expressly provided otherwise, the prices in the Agreement do not include taxes. Customer agrees to pay any taxes, other than those based on Company’s net income, arising out of the Agreement. If Customer is tax-exempt, Customer agrees to send Company a copy of its tax-exempt certificate upon execution of this Agreement. Customer agrees to indemnify Company from any liability or expense incurred by Company as a result of Customer’s failure or delay in paying taxes due.
Software provided on a profile count basis. Customer agrees to license the initial number of profiles described in the Order Form (the “Minimum Commitment”). Customer is entitled to increase or decrease the number of profiles on an as-need basis provided, however, the Customer shall maintain the minimum Commitment unless the parties otherwise agree to adjust the Minimum Commitment.
Any terms and conditions included in a Customer Purchase Order, shall be deemed to be solely for the convenience of the Customer, and no such term or condition shall be binding upon the parties.
Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use; (b) not violate or tamper with the security of any Company computer equipment or program. If Company has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Company may suspend the Services immediately with or without notice to Customer. Company may terminate the Agreement immediately following written notice to the Customer if Customer fails to adhere to the foregoing acceptable use standards. You are responsible for Content that you post to the Software, and any consequences thereof. The Content you submit, offer, contribute, attach, post, or display may be viewed by other users of the Software. All Content is the sole responsibility of the person who originated such Content. Any use or reliance on any Content or materials posted via the Software or obtained by you through the Software is at your own risk. Customer is solely responsible for obtaining and maintaining at its own expense all equipment needed to access the SaaS Services, including but not limited to any computers, workstations, and internet service. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the data it submits to the Services.
Company carries out procedures specified solely by Customer, and Company expressly denies all liability for Company’s implementation of Customer’s procedures including, but not limited to, Customer’s hiring and screening criteria and any of Customer’s practices that are discriminatory or otherwise in violation of applicable law. Customer is solely responsible for determining the scope and extent of the Services provided by Company, and Customer is entirely responsible for reviewing the Services provided by Company on Customer’s behalf to ensure compliance with Customer’s procedures. Company makes no attempt to determine or advise as to whether the Customer’s procedures comply with any statutory or regulatory requirements, including but not limited to any statutory or regulatory requirements related to hiring, employment, race, color, ancestry, religion, citizenship, gender, sexual orientation, age, marital status, pregnancy, veteran status, national origin, disability, or any federal, state or local statutes governing the employer/employee relationship. To the extent, however, that Customer’s procedures or criteria clearly violate any of these laws, Company reserves the right to refuse to implement such procedures or criteria. Company also will not be liable for Customer’s failure to comply with applicable laws, regulations, or Customer’s own privacy policy (if any) or for loss of data. Software may be used as a factor in Customer’s hiring decisions, but are not designed to be nor shall they be utilized as the substantial or sole factor in such hiring decisions, but rather, they shall be used in conjunction with other selection processes, including candidate interviews. Customer is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is entirely responsible for any and all activities that occur under Customer’s account. Customer agrees to immediately notify Company of any unauthorized use of Customer’s account or any other breach of security known to Customer. Company shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.
Company warrants that the services will be performed in all material respects in accordance with the services policies referenced in the applicable SOW or Order Form. COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES. NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SOFTWARE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY REPRESENTS OR WARRANTS THAT THE SOFTWARE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SOFTWARE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SOFTWARE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SOFTWARE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED, OR ON ANY WEBSITE LINKED TO IT. COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OF CERTAIN WARRANTIES. TO THE EXTENT THEY ARE HELD TO BE INVALID, THE APPLICABLE DISCLAIMER SHALL NOT APPLY AND ALL OTHER TERMS AND SHALL REMAIN IN FORCE.
IN NO EVENT WILL COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SOFTWARE, ANY SOFTWARE LINKED TO IT, ANY CONTENT ON THE SOFTWARE OR SUCH OTHER SOFTWARE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE OR SUCH OTHER SOFTWARE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. EXCEPT FOR INDEMNITY OBLIGATIONS, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID TO COMPANY BY CUSTOMER DURING THE PREVIOUS TWELVE (12) MONTHS. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. COMPANY WILL NOT BE RESPONSIBLE FOR 1) MODIFICATION OF THE PRODUCTS OR SERVICES BY ANY PARTY OTHER THAN COMPANY; (2) THE COMBINATION, OPERATION, OR USE OF THE PRODUCT OR SERVICES WITH OTHER PRODUCTS, DATA OR SERVICES MAY BE INFRINGING UPON ANOTHER PRODUCT; OR 3) UNAUTHORIZED OR IMPROPER USE OF THE PRODUCTS OR SERVICES.
Each party agrees that it (i) will not copy or use any of the other party’s Confidential Information in any way, except as permitted by this Agreement or as required to achieve the purposes of this Agreement, (ii) will not disclose any of the other party’s Confidential Information to any third party, except to that party’s attorneys and accountants who need to know such information and who are subject to confidentiality obligations at least as stringent as those in this Agreement, and (iii) will protect the other party’s Confidential Information as well as it protects its own information of a similar nature using at least reasonable care. The receiving party may disclose the Confidential Information of the disclosing party in response to a valid court order, law, or other governmental action, provided that, to the extent permitted by law, (i) the disclosing party is notified in writing before disclosure of the information and given a reasonable opportunity to obtain a protective order, and (ii) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt to limit or prevent the disclosure of the Confidential Information. Information is not Confidential Information if a party can clearly show that it (i) became known to the receiving party prior to receipt from the disclosing party, (ii) has become publicly known, except through breach of this Agreement, or (iii) is independently developed without reference to Confidential Information.
Customer is solely responsible for the content of communications transmitted by Customer using the Services, and shall defend, indemnify and hold harmless Company from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications. Customer is not permitted to resell the Services. Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs. Customer is responsible for establishing designated points of contact to interface with Company. Customer and Users are solely responsible for providing workstations and computers that have reliable internet access at their own expense.
Subject to the terms of this Agreement, Company grants Customer a limited, non-exclusive, personal, non-transferable right to access the Services during the Term of this Agreement solely for internal use. Customer shall not (i) sell, market, rent, sub-license, or license any aspect of Company System or Intellectual Property or otherwise use the Services for any purpose other than as specifically provided in this Agreement, (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the System in whole or in part, for competitive purposes or otherwise, (iii) allow access to, provide, divulge or make available the System to any user other than those who have licenses to access; (iv) write or develop any derivative works based upon the System; (v) modify, adapt, translate or otherwise make any changes to the System or any part thereof; (vi) use the System to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without Company’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the System or (viii) remove from the System identification, patent, copyright, trademark or other notices or circumvent or disable any security devices functionality or features. Customer obtains no ownership rights or any other rights in the Intellectual Property or the Company System, other than those specified in this Agreement. Customer grants Company a limited license to use Customer’s transactional and performance data related to Customer’s use of the Services solely on an aggregated and de-identified basis as part of Company’s overall statistics for marketing and analytical purposes, provided that Company does not reveal Customer’s job applicant information, personnel data, or hiring criteria.
Customer grants to Company the right to publicly disclose the fact that Customer is using Company for Company’s advertising and other promotional purposes. Any other publicity shall require the mutual consent of the parties.
Some Software and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) (“Content”), are owned by Company, its licensors or other providers of such material and are protected by United States copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. All Content is provided “AS-IS” and “AS-AVAILABLE”. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on from our Software, except as follows: (i) Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials and (ii) You may store files that are automatically cached by your Web browser for display enhancement purposes. If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Software in breach of the Agreement, your right to use the Software will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Software or any Content is transferred to you, and all rights not expressly granted are reserved by Company. Any use of the Software not expressly permitted by this Agreement is a breach of these Terms, and may violate copyright, trademark and other laws.
All identified data is owned by Customer and is to be strictly held as confidential. Company will delete and destroy all copies of identified data once the Agreement is terminated with or without default. Customer has the option to receive a backup of data prior to deletion, which may result in additional charges. All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to Company. Any modification to the Software performed by Customer directly or indirectly extending the current capabilities shall be the property of Company and all copyrights and other rights are hereby assigned to Company. Customer agrees that Company has permission to maintain and use any de-identified data as listed in this Agreement.
The Agreement constitutes the entire agreement between the parties regarding the subject matter of the Agreement and supersedes all previous agreements or representations, oral or written regarding the subject matter of the Agreement. The Agreement may not be modified except in writing signed by an authorized representative of each party. Both parties acknowledge having read the terms and conditions set forth in the Agreement, understand all terms and conditions, and agree to be bound thereby. The titles of sections and subsections are for convenience only and are not to be used in construing any term in the Agreement. This MSA may be executed in two or more counterparts, each of which shall be deemed an original for all purposes, and together shall constitute one and the same document. Telecopied and/or scanned copies of signatures shall be relied on as original signatures in all respects.