TERMS OF SERVICE
THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN THE USE OF SERVICES PROVIDED BY __________________ (“Us”, “We”, or “Our”). WHETHER YOU ARE USING OUR SERVICES AS PART OF A FREE TRIAL OR PURCHASE OUR SERVICES, THIS AGREEMENT WILL GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY YOU SIGNING A WRITTEN PROPOSAL INDICATING YOUR ACCEPTANCE OR BY PURPOSEFULLY ACCESSING AND CONTINUING TO USE THE SERVICES, YOU EXPRESSLY AGREE TO THIS AGREEMENT EFFECTIVE AS OF THE DATE THEREOF. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SERVICES THROUGH YOUR ACCOUNT TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND ANY USERS AUTHORIZED OR GRANTED ACCESS THEREBY OR ASSOCIATED THEREWITH. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT ON YOUR BEHALF OR BEHALF OF AN ENTITY OR ITS AFFILIATES.
If any of Your Users are residents of the United Kingdom or the European Union, such Users are not authorized to use the Services provided hereunder. If that is the case, please contact Us to receive the alternative terms pursuant to which You are able to receive the Services. The Services are not intended for use by children. If any User is under 13 years old, no such User may submit or post any information or material using the Services or otherwise provide such information to Us, including but not limited to personally identifiable information.
a. “Affiliate” of an entity means any other entity that directly or indirectly Controls, is Controlled by, or is under common Control such entity. “Control” and “Controller” mean, for purposes of this Agreement, direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
b. “Trial Period” means the period of time during which the Services are made available by Us, free of charge, to You for testing purposes. We reserve the right to notify You, prior to its expiration, that the Trial Period will come to an end at a date which We may choose and, thereafter, the Services will only be made available as Purchased Services.
c. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
d. “Services” means the online, web-based applications and platform provided by us at ___________________ or other websites designated by Us and all text, graphics, logos, icons, images, data, graphs, audio, videos, software, forms, user interfaces, reports, scripts, and data structures, process flows, and information, but excluding any Third Party Applications. “Purchased Services” means Services that You or Your Affiliates purchase from Us as distinguished from those provided pursuant to a free trial.
e. “Third-Party Applications” means software, services, websites, and applications that are provided by third parties that may interoperate with the Services, including, but not limited to, those listed on Our Web Site.
f. “User Guide” means the online user guide, if any, for the Services, accessible via the following URL: _____________________, as updated from time to time by Us. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Section 2 (Free Trial) below.
g. “Users” means You or individuals who are authorized by You to use the Services on Your behalf, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to You, Your employees, or Your independent contractors. USERS ASSOCIATED WITH YOUR ACCOUNT MUST BE EITHER EMPLOYEES OR INDEPENDENT CONTRACTORS OF YOUR ORGANIZATION OR YOUR AFFILIATES. YOU MAY NOT PROVIDE THE SERVICES OR ACCESS THERETO TO INDIVIDUALS, COMPANIES, OR OTHER ENTITIES WHO DO NOT MEET THE ABOVE CRITERIA. YOU MAY NOT PROVIDE THE SERVICES OR PURCHASED SERVICES IN A SERVICE BUREAU MODEL, TO OPERATE A JOB BOARD OR OTHERWISE CHARGE THIRD PARTIES TO PROVIDE A JOB SERVICE, OR OTHERWISE FOR THE BENEFIT OF THIRD PARTIES.
h. “Web Site” means those web sites owned or controlled by Us including but not limited to the URL: __________________ or other web sites designated by Us from time to time.
i. “You” or “Your” means the individual accepting this Agreement or the company or other legal entity for which said individual are accepting this Agreement, and Affiliates of that company or entity. “Your Data” means all electronic data or information submitted by You using the Services.
2. FREE TRIAL
We will make the Service available to You and an unlimited number of Your Users free of charge until the earlier of (a) a thirty (30) day period (unless otherwise specified by Us) or (b) the start date of any Purchased Services ordered by You (the “Trial Period”). ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO OUR PURCHASED SERVICE PRIOR TO THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. PURCHASED SERVICES
If mutually agreed to by You and Us, We will make the Purchased Services available to You pursuant to this Agreement during a paid subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us or any other third party regarding future feature or functionality.
4. USE OF THE SERVICES
a. Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and upgraded support if purchased separately, and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, war, epidemics, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service, cloud service providers, or other utility provider failures or delays.
b. Your Responsibilities. You may not access the Services for purposes of evaluating their availability, performance or functionality, for copying or developing a competitive product or service, or for any other benchmarking or competitive purposes. You shall (i) be solely responsible for Users’ compliance with this Agreement, be fully responsible for any breach of this Agreement by a User as if such breach was made by You under this Agreement, and be fully liable therefor, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data and any required authorization or consent to use Your Date, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. You shall not (a) make the Services available to any third party other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to misrepresent information about Your self or others, store or transmit offensive, plagiarized, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or related systems or networks or any data stored thereby.
c. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in any written proposal of Ours or as may otherwise be communicated to You by Us in writing from time to time.
5. THIRD-PARTY PROVIDERS
a. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale through Our Web Site. Any use by You of any Third-Party Application and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely at your own risk and between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise. No purchase of third-party products or services is required to use the Services.
b. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
a. User Fees. You shall pay all fees specified hereunder. We post our fees for our Services in written proposals that We present to You. Those fees and rates for Services specified on the written proposal are hereby incorporated herein by this reference as though fully set forth herein. Except as otherwise specified herein, (i) fees are quoted and payable in United States dollars, and (ii) payment obligations are non-cancelable and fees paid are non-refundable. User subscription fees are based on monthly periods that commence on the first day of the starting month and each monthly anniversary thereof. Fees for User subscriptions added anytime during a monthly period will be charged for that full monthly period. We reserve the right to modify our fees at any time.
b. Invoicing and Payment. One time fees are due upon our receipt of the signed fee proposal; subscription fees will be charged monthly for the prior month’s usage. You agree to pay any other invoices within thirty (30) days of receipt. We will bill You by invoice unless You specifically request to be billed by credit card. If You provide credit card information to Us, You authorize Us to charge such credit for all Purchased Services for the initial subscription term and any renewal subscription terms. You are responsible for maintaining complete and accurate billing and contact information for the Services.
c. Overdue Charges. If any charges are not received from You by the due date (except charges that You reasonably dispute in good faith), then such charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any charge owing by You under this or any other agreement for Services is 30 or more days overdue (except charges then under reasonable and good faith dispute), We may, without limiting Our other rights and remedies, suspend Services until such amounts are paid in full.
d. Taxes. Except for income taxes assessed against Us, our fees do not include and you are solely responsible for any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. PROPRIETARY RIGHTS
a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You reserve all rights, title and interest in and to all of Your Data.
b. Limited License. We provide to you a limited, non-transferrable and non-assignable, revocable, paid up (except for the fees due), worldwide license to use the Services, including any related software or technologies, according to the terms and conditions of this Agreement.
c. Restrictions. You shall not (i) distribute or permit any third party to view or access the Services except as permitted herein or in Our order form, (ii) modify or create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
e. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You or any Users relating to the Services.
f. Federal Government End Use Provisions. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
g. We respect the intellectual property of others and ask that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights.
If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent (as named below):
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our Apps that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
8. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
9. The designated Copyright Agent for Us is:
Web Administrator Email: email@example.com
a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services, our pricing and the terms of Our agreements, and all underlying software, forms, user interfaces, reports, scripts, and data structures, process flows, and information related thereto. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation of you or any third party owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by personnel of the Receiving Party that do not have access to Confidential Information of the Disclosing Party.
b. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections protective of the Disclosing Party’s Confidential Information that are no less stringent than those herein.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of collecting, compiling, and producing such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
a. Limited Warranty. We warrant that (i) the Services shall perform materially in accordance with the User Guide. For any breach of such warranty, Your exclusive remedy shall be as provided in Section 12(c) (Termination for Cause) and Section 12(d) (Refund or Payment upon Termination) below.
c. Disclaimer. We do not warrant that:
- the Services will meet your specific requirements,
- the Services will be uninterrupted, timely, secure, or error-free, or
- the results that may be obtained from the use of the Services will be accurate or reliable.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
You shall defend, indemnify, and hold Us harmless against any claim, demand, suit, or proceeding (“Claim”) made or brought against Us by a third party arising from Your breach of this Agreement, negligence or willful misconduct, or use of Your Data or violates any agreement or applicable law. We agree to: (a) give You reasonable written notice of the Claim; (b) give You the opportunity to assume sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability, includes no admission of wrongdoing, and imposes no obligations on Us other than the payment of amounts indemnified by You hereunder); and (c) provide to You reasonable assistance at Your expense.
11. LIMITATION OF LIABILITY
a. Limitation of Liability. IN NO EVENT SHALL OUR LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
a. Term of Agreement. This Agreement commences on the date You accept it and continues until terminated in accordance with its terms or affirmatively by You, in accordance with these Terms. If You elect to use the Services for a free Trial Period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of that free Trial Period.
b. Term of Purchased User Subscriptions. Purchased Services commence on the date you first access the software and your training session is complete, whichever comes first. Except as otherwise specified by Us, all Purchased Services shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other party written notice of non-renewal at least 30 days before the end of the relevant subscription term.
c. Termination for Cause. A party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period.
d. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by you other than for cause or for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Purchased Services after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
e. Return of Your Data. The return of Your Data as described in this section will be available to You as long as all Purchased Services including the period up to and including the termination of Services are paid in full. Upon request by You made prior to the effective date of termination of a Purchased Services subscription, We will make available to You for download a file (or files) of Your open or closed positions with your company which you are looking to fill or have filled through the Services and any applicant data included therein in comma separated value (.csv) format for a period not to exceed 30 days after the effective date of termination (the “Data Return Period”) of such Purchased Services subscription. We will also make available for You copies of the resumes or other attachments included in Your Data that You or Your applicants have uploaded to the Services, in their native formats, for download by You. After expiration of any applicable Data Return Period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control except for legal archive or corporate record keeping purposes or pursuant to back-up procedures made by or for Us in the ordinary course of business.
f. Surviving Provisions. Section 1, Sections 6 through 11, Sections 6(c), 6(d), 6(e), and Sections 12 through 14 shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
a. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the second business day after mailing via certified or registered mail. All notices required or permitted under this Agreement which are to be delivered to Us should be addressed as follows: __________________________ at ________________________________. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
b. Agreement to Dispute Resolution. This Agreement shall be governed by the laws of the State of ___________________, USA, without reference to or application of any conflict of laws rules, excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods, and excluding any potentially applicable provisions of the Uniform Computer Information Transactions Act, to the extent it is, or has been, adopted in a governing jurisdiction. Each party agrees that venue is proper in the states and federal courts located in _____________, hereby waives any defense of an inconvenient forum. and hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
a. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
b. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
c. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
d. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
e. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
f. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including Our order forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, restructuring, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.