TERMS OF SERVICE
THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN THE USE OF OUR SERVICES DURING ANY FREE TRIAL THAT WE MIGHT OFFER TO YOU. IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY SIGNING A WRITTEN PROPOSAL INDICATING YOUR ACCEPTANCE OR BY CONTINUING TO USE THE SERVICES, YOU EXPRESSLY AGREE TO THIS AGREEMENT. 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 USERS ASSOCIATED WITH IT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THIS AGREEMENT ALSO LIMITS OUR LIABILITY TO YOU AS WELL AS WAIVES CERTAIN WARRANTIES WITH RESPECT TO THE SERVICES. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT ON YOUR BEHALF OR BEHALF OF AN ENTITY OR ITS AFFILIATES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 9, 2018. It is effective between You and Us as of the date You accept this Agreement.
a. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
b. “Control” means, for purposes of this Agreement, direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
c. “Trial Period” means the period of time during which the Services are made available by Us, free of charge, to select individuals and organizations for testing purposes. We reserve the right to notify all such Users, 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.
d. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
e. “Purchased Services” means Services that You or Your Affiliates purchase from Us as distinguished from those provided pursuant to a free trial.
f. “Services” means the online, web-based applications and platform provided by Us via www.theapplicantmanager.com and/or other websites designated by US, but excluding Third Party Applications.
g. “Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, that interoperate with the Services, and are identified as third-party applications, including but not limited to those listed on Our Web Site.
h. “User Guide” means the online user guide, if any, for the Services, accessible via www.theapplicantmanager.com, 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.
i. “Users” means You or individuals who are authorized by You to use the Services on Your behalf or on behalf of Your organization, 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, consultants, vendors, contractors and agents; or third parties with which You transact business. USERS ASSOCIATED WITH YOUR ACCOUNT MUST BE EITHER EMPLOYEES, CONSULTANTS OR VOLUNTEERS OF YOUR ORGANIZATION. YOU MAY NOT PROVIDE THE SERVICES OR PURCHASED SERVICES TO INDIVIDUALS WHO DO NOT MEET THE ABOVE CRITERIA. YOU MAY NOT PROVIDE THE SERVICES OR PURCHASED SERVICES IN A SERVICE BUREAU MODEL.
j. “We,” “Us” or “Our” means The HR Manager, LLC, a California limited liability company, as described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
k. “Web Site” means those web sites owned or controlled by The HR Manager, LLC including but not limited to www.theapplicantmanager.com and/or other web sites designated by US from time to time.
l. “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.
m. “Your Data” means all electronic data or information submitted by You to the Purchased 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) the date on which the Trial Period expires or (b) the start date of any Purchased Services ordered by You. ANY DATA YOU ENTER INTO THE SERVICES, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO OUR SERVICE. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. Please review the User Guide during the Trial Period so that You become familiar with the features and functionality of the Services before You make Your purchase.
3. PURCHASED SERVICES
We shall make the Purchased Services available to You pursuant to this Agreement during a 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/or upgraded support if purchased separately, (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, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
b. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (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 store or transmit 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 their related systems or networks.
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 the written proposal or as my 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 other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely 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, except as specified in Our Fee Agreement which we have or will send to you or as otherwise set forth in a written order for the Purchased Services (an “Order Form”); an executed Fee Agreement shall constitute an Order Form under this Agreement). 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 on our Web Site or 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, (ii) actual fees will be based on the number of Administrators (HR/Recruiters) requested/identified in the system and the number of active managers in a month as well as any applicable usage fees, and (iii) 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; therefore, fees for User subscriptions added anytime during a monthly period will be charged for that full monthly period. At Our discretion, we reserve the right to discount Our fees to those of our customers who elect to purchase yearly, rather than monthly, subscriptions. 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. 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 term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). You are responsible for maintaining complete and accurate billing and contact information in the Services. You agree to pay undisputed invoices within thirty (30) days of receipt.
c. Returned checks. In the event that your check is returned, you will be re-invoiced and charged a $25 processing fee per returned check.
d. Overdue Charges. If any charges are not received from You by the due date (except charges then under reasonable and good faith dispute), then at Our discretion, (a) such charges may 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, and/or (b) We may condition future subscription renewals and orders on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
e. Charges 30 or More Days Overdue. 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, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
f. Taxes. Unless otherwise stated, Our fees do not include 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”). You are responsible for paying all Taxes associated with Your purchases hereunder. 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. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
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.
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) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) 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.
d. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
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, including Users, relating to the operation of the Services.
f. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: 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). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
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:
The HR Manager, LLC
369-B 3rd Street, Suite 655 San Rafael, California 94901 USA
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 and all underlying information related thereto; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) 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 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 the Receiving Party.
b. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) 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 no less stringent than those herein.
c. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards to protect the confidentiality and integrity of Your Data and to keep Your Data as secure as reasonably possible. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7(f) (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
d. 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 Disclos