Last updated January 2021
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Application Services” shall mean the phone interview and assessment platform provided by Company.
“Business Proposal” shall mean the ordering documents for Customer’s purchases of Services from Company that are executed hereunder by the parties from time to time. Business Proposals shall be deemed incorporated herein.
“Customer Data” shall mean all electronic data or information submitted by Customer to the Application Services.
“Candidate Data” shall mean all electronic data or information submitted by Customer’s
applicants/candidates to the Application Services.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
“Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers. Non-Public Personal Information specifically does not include all personal information required to use the Application Services such as customer
name, email address, and mobile phone number.
“Professional Services” shall mean the implementation, integration, consulting and similar services described in an SOW.
“Project Start Date” shall mean some date mutually agreed upon by the parties following execution of a Business Proposal, upon which date Company shall commence provision of Professional Services under an SOW.
“Scope of Professional Work” or “SOW” shall mean the document describing the scope and schedule of Professional Services to be performed by Company for Customer. Each SOW should be attached to a Business Proposal and shall be governed by the terms of this Agreement.
“Services” shall mean the Application Services and Professional Services collectively.
“Start Date” shall mean the date on which Company shall make the Application Services available to Customer as set forth in an applicable Business Proposal.
“Subscription Term” shall mean the subscription period set forth in an applicable Business Proposal.
2.1 Company Responsibilities . Company shall: (a) provide the Application Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) perform and complete the Services in full compliance and all applicable municipal, state, and Federal laws, rules, regulations, if applicable; (c) provide basic support to Customer at no additional charge; and (d) use commercially reasonable efforts to make the Application Services available 24 hours a day, seven days a week, except for planned
downtime or any unavailability caused by circumstances beyond Company’s reasonable control.
2.2 Customer Responsibilities . Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application Services, and notify Company promptly of any such unauthorized access or use; and (c) comply with all applicable laws and regulations in using the Application Services. Customer shall not upload to, or
store within, the Application Services (and the Customer Data shall not contain) any Non-Public Personal Information.
2.3 Use Guidelines . Customer shall use the Application Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party except as contemplated by this Agreement; (b) send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or
tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the Application Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the Application Services any Malicious Code; or (e) attempt to gain unauthorized access to the
Application Services or its related systems or networks.
2.4 Publicity. Company will not issue press releases identifying Customer as a user of Company’s services without Customer’s prior consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
3.1 Service Fees . Company will invoice Customer for the Application Services only following the Effective Date after the Applications Services have been activated and are properly functioning in the reasonable discretion of Customer. Company will invoice Customer for other Services and work performed as mutually agreed in such Business Proposal or SOW. Except as otherwise specified in a Business Proposal, fees are based on the Services purchased and not actual usage; payment obligations are non-cancelable; fees paid are
non-refundable; and the Services purchased cannot be decreased during the relevant Subscription Term.
3.2 Overdue Payments . Customer’s failure to pay undisputed invoices as set forth herein shall constitute a material breach of this Agreement and Company may impose late fees as contemplated in each Business Proposal. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), Company may, in addition to any of its other rights or remedies, suspend Customer’s access to the Application Services and/or suspend provision of Professional Services until such amounts are paid in full. If such failure to pay has not been cured within 30 days of the due date, then upon written notice Company may terminate this Agreement and any or all outstanding Business Proposals.
4.1 Reservation of Rights . Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company shall not access Customer’s user accounts, including Customer Data, except to respond to Service or technical problems or at Customer’s request. Company may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Customer shall not (a) modify, copy or create derivative works based on the Application Services; or (b) reverse engineer the Application Services.
4.2 Improvements; Deliverables . Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by Company in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Company by virtue of
this Agreement or otherwise, Customer hereby transfers to Company all rights, title, and interest which Customer may have, and such transfer is irrevocable, irreversible and binding on Customer’s successors. Company hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its
internal business purposes anything developed by Company for Customer under a Scope of Professional Work (“Deliverables”). Company shall retain all ownership rights to the Deliverables. Customer agrees that Company may use statistical, aggregate, or deidentified data that is derived from the Customer Data and/or Candidate Data
so long as such data does not identify an individual person (“Personally Identifiable Information” or “PII”) for statistical purposes, research, benchmarking, to improve Company’s or its affiliates’ software applications or services, for other lawful purposes, and with third parties with whom Company has a business relationship and who owe confidentiality obligations to Company and adhere to these same Customer Data and Candidate Data restrictions.
5.1 Definition of Confidential Information . As used herein, “ Confidential Information” means all confidential and proprietary information of a party (“ Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement, any Business Proposal, the Customer Data, Candidate Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees who need to know such information for purposes of performing the Services. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses
to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
5.3 Compelled Disclosure; Remedies . If the Receiving Party is compelled by law, an order issued by a judge or public competent authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek to file a lawsuit to enjoin such acts.
6.1 Customer Warranties . Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trademark, publicity right, trade secret or other proprietary right held by any third party; and (b) Customer shall not use the Services in a manner that violates any applicable law.
6.2 Company Warranties. Company represents and warrants that: (a) the functionality of the Application Services will not be materially decreased during a Subscription Term; (b) Company shall utilize software and other security means to prevent the Application Services from containing or transmitting Malicious Code; (c) Company shall maintain the security and integrity of Customer Data and Candidate Data consistent with industry standards for comparable services, including maintaining access controls, firewalls, wireless and mobile device and storage security, virus scanning/protection software, encryption of data in transport and storage (including backup data), and network security intrusion protection systems; and (d) it owns or otherwise has sufficient rights in the Application Services to grant to Customer the rights to use the Application Services granted herein. Company represents and warrants that the Professional Services will be performed in a professional and
workmanlike manner in accordance with generally accepted industry standards. Customer must report any deficiencies in the Professional Services to Company in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this Section, Customer’s
exclusive remedy, and Company’s entire liability, shall be the re-performance of the Professional Services. If Company is unable to re-perform the Professional Services as warranted within 30 days of receipt of notice of breach, Customer shall be entitled to recover the fees paid to Company for the deficient Professional Services.
7.1 Each party shall defend, indemnify, and hold the other party, its Affiliates, and their respective officers, directors, and employees, harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a claim that arises due to the other party’s breach of this Agreement.
7.2 Procedure. As an express condition to Customer’s indemnification obligation under this Section 7, Company shall: (a) promptly notify Customer in writing of the applicable claim, suit, or demand for which indemnification is sought; and (b) provide Customer with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such claim.
8.1 Limitation of Liability . IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY OR IF LESS THAN 12 MONTHS HAVE ELAPSED AT THE TIME THE CLAIM AROSE, THEN THE MAXIMUM LIABILITY IS THE TOTAL ANNUALIZED AMOUNT BASED ON THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FROM THE BEGINNING OF THE AGREEMENT TO THE TIME OF THE EVENT GIVING RISE TO THE CLAIM..
8.2 Exclusion of Consequential and Related Damages . IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Term. This Agreement commences on the Effective Date and continues until terminated as set forth in this Section 9 (the “Term”). Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Business Proposal. Thereafter, a subscription may
be renewed for an additional Subscription Term upon the written agreement of the parties. Company shall provide Customer at least 30 days’ advance notice, which notice shall be given via the Application Services, of the impending expiration of the then-current Subscription Term. Company shall suspend Customer’s access to the
Application Services after the expiration of the then-current Subscription Term if such a written renewal has not been executed. Except as otherwise specified in a Business Proposal, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The per-unit pricing during any renewal term may increase by up to 7% above the applicable pricing in the prior term, with a 60-day written notice of such increase from the Company to the Customer. Except as expressly provided in the applicable Business Proposal, renewal of promotional or one-time priced subscriptions will be at Company's applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any
renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. Professional Services shall commence on the Project Start Date and shall continue until such Professional Services are completed.
9.2 Termination for Cause . A party may terminate this Agreement for cause upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such 30-day period. Company may immediately terminate this Agreement for cause if Customer breaches any term or condition set forth in this Agreement. Upon any termination for cause by Customer, Company shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. Upon any termination for cause by Company,
Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
9.3 Termination for Convenience . Within 30 days of the Start Date of the first Business Proposal, either party may terminate the remainder of this Agreement for any reason or no reason upon written notice to the other party. Upon any such termination Company shall refund Customer all paid Subscription or Service fees.
10.1 Relationship of the Parties . The relationship between the parties created by this Agreement is one of independent contractors and neither party shall have the power or authority to bind or obligate the other except as expressly set forth in this Agreement. This Agreement does not create a partnership, franchise, joint
venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
10.2 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, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its
entirety (including all Business Proposals), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in
breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.3 Governing Law . This Agreement shall be governed exclusively by the laws of the State of Indiana, without regard to its conflicts of laws rules. All disputes arising out of or in connection with this Agreement or its validity shall be finally settled by a court in Indianapolis, Indiana, and the parties expressly agree to the jurisdiction thereof.
10.4 Miscellaneous. This Agreement, including all Exhibits, Business Proposals and Scopes of Professional Work, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit, Business Proposal, or Scope of Professional Work, the terms of this Agreement shall
prevail unless expressly stated otherwise in such Exhibit, Business Proposal, or Scope of Professional Work. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid provision that is closer to the scope and intent of the invalid provision and shall not affect the validity of the
remaining provisions hereof. This Agreement may be executed in two (2) counterparts with the exact same contents, which taken together shall form one legal instrument. The counterparts may be transmitted and signed electronically (e.g. pdf, DocuSign).