TERMS AND CONDITIONS (3.27.20)
Active Resource means a profile of an individual (e.g., employee, contractor, freelancer, partner) on the Platform that has a status as an Active Resource (as set by Client).
Client Data means all data and other content provided by Client to Company in connection with using the Service.
Platform means the platform provided by Company to Client as part of the Service to view and export Client Data, including all software, interfaces, tools, utilities, templates, forms, and other technologies (and any related intellectual property) relating thereto, excluding Client Data.
Service means the Platform provided by Company hereunder.
Website means the website operated by Company located at www.Company.com.
2. COMPANY SERVICE.
2.1 Service. Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to implement and operate the Service for Client. Subject to the terms and conditions of this Agreement, Company grants Client a non-exclusive license to use and access the Service solely for Client’s internal business purposes for those operations and for up to the number of Active Resources.
2.2 Access and Account Setup. Company will provide Client with access privileges that permit Client to access and manage the Service and access Client Data and other related data. As part of the implementation process, Client will identify an administrative user name and password that will be used to set up Client’s account. Client may use the administrative user name and password to create Active Resources (each with unique login IDs and passwords). Client shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Client.
2.3 Client Data. The parties shall work together as mutually agreed to enter initial Active Resource information and Client Data into the Platform. Following such initial implementation, Client will be responsible for entering Active Resource information and Client Data into the Platform. Client shall have the ability to add, modify or delete Active Resources from the Service. Deleted Active Resources shall not count toward the total number of Active Resources on the Service. Client hereby grants Company a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Client Data on the Platform and in connection with the Service. Client agrees that (a) the quality of the Service and the Platform depend on the uploading or other provisioning of the Client Data into the Platform and (b) Company will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Client Data entered by Client.
2.4 Modifications. Company reserves the right to modify or discontinue the Service (in whole or in part) at any time by giving ninety (180) days’ prior written notice to Client.
2.5 Feedback. All Client (a) suggestions for correction, change or modification to the Platform or Service, (b) evaluation data, (c) evaluations, (d) benchmark tests, and (d) other feedback, information and reports provided to Company hereunder (collectively, Feedback), will be the property of Company and Client shall and hereby does assign any rights in such Feedback to Company. Client agrees to assist Company, at Company’s expense, in obtaining intellectual property protection for such Feedback, as Company may reasonably request.
3. SUPPORT & MAINTENANCE.
3.1 Support and Service Levels. Provided that Client is in compliance with the terms and conditions of this Agreement, Company will use commercially reasonable efforts to provide Client with technical support and updates for the Platform and to meet the service levels specified herein, in accordance with its standard practices, as amended from time to time. Subject to Client’s approval, Client agrees that Company will have the right to charge for any support service resulting from problems, errors or inquiries not related to the Service or Platform. The Service will be available ninety-nine percent (99%) of the time in a given month (Minimum Service Level), excluding scheduled maintenance or, downtime resulting from unavailability of Client Data or unavailability of third party services. Company will inform Client, by email (or other prompt means if email is unavailable), of any service disruption, unless such disruption is of an insignificant nature (less than one (1) hour). Company will use commercially reasonable efforts to restore service as soon as reasonably practicable and will inform Client by email (or other prompt means if email is unavailable) once service is restored. Technical Support or Helpdesk will be available by phone and email during weekday office hours from 9:00 a.m. to 8:00 p.m. Eastern time, Monday to Friday, and on email during non-office hours (including, weekends and US holidays). Company, at its sole discretion, may plan scheduled maintenance which will be communicated by email to Client at least twenty-four (24) hours in advance with notice of how many hours of downtime are expected.
3.2 Limitations. Company will not be responsible or liable for any failure in the Platform or Service resulting from or attributable to (a) Client Data or failures to deliver Client Data to Company, (b) failures in any telecommunications, network or other service or equipment outside of Company’s facilities, (c) Client’s or any third party’s products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond Company’s reasonable control, (e) scheduled maintenance in accordance with the terms herein, or (g) unauthorized access, breach of firewalls or other hacking by third parties.
4. PROPRIETARY RIGHTS.
4.1 Client. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Client (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Client Data.
4.2 Company. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Company (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Service and Platform, all copies, modifications and derivative works thereof, and all Company trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights.
4.3. Aggregate Data. Client agrees that Company is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Service (General Knowledge), including that it could have acquired performing the same or similar services for another client. Client further agrees that Company shall have the right (a) to create anonymized compilations and analyses of Client Data that is combined with data from numerous other clients (Aggregate Data), and (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (Analyses); provided, however, that Client Data does not comprise more than 10% of the data used in connection with any single Analysis. Company shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Service; provided, however, that Company shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Client Data.
4.4 Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of Company’s Confidential Information (defined below) to create any service, software, documentation or data that is similar to any aspect of the Service or Platform, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform of Service, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Service or Platform in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Service, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.
5.1. Definition. Each party agrees that the business, technical and financial information, including without limitation, the Platform, the Service and Client Data and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (Confidential Information). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, (d) is independently developed by the receiving party, or (e) constitutes aggregated, anonymized data and information that cannot be re-identified or de-anonymized.
5.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
5.3. Return of Confidential Information. Except as expressly allowed herein, promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.
5.4. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6.1 Fees. Client shall pay to Company all Professional Service fees (Professional Services Fees) and Subscription Services fees (Subscription Services Fees) in U.S. dollars, as specified herein (collectively, the Fees). All Fees are non-refundable, and all amounts are due and payable upon receipt of the invoice.
Professional Services Fees. The Set-Up Fees shall be a one-time charge for implementation of the Service. Any Professional Services Fees being charged will be outlined in the Order Form.
Subscription Services Fees. Recurring Software-as-a-Service fees will be charged according to the pricing structure outlined in the Order Form.
6.2 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Company’s net income.
7. LIMITED WARRANTY AND DISCLAIMERS.
7.1 General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
7.2 Client. Client represents and warrants to Company that Client owns all rights, title and interest in and to the Client Data, or that Client has otherwise secured all necessary rights in the Client Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement.
7.3 Company. Company represents and warrants to Client that (a) the Service will be provided in a professional and workmanlike manner and (b) Company owns all rights, title and interest in and to the Platform, or that Company has otherwise secured all necessary rights in the Platform as may be necessary to permit the access and use thereof as contemplated by this Agreement. Any warranty claim under this Section 7.3 must be made in writing within thirty (30) days after performance of the nonconforming Service. Company’s sole obligation and Client’s exclusive remedy in respect thereof is to reperform the nonconforming Company Service.
7.4 Disclaimers. EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8.1 Client. Client agrees to defend Company against any claim by a third party that is related to (a) Company’s authorized use of any Client Data, (b) Client’s breach of any representation, warranty, covenant or other agreement made herein or (c) claims excluded under Section 8.2(b), and to indemnify Company for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
a. Indemnity. Except as provided below, Company agrees to (i) defend Client against any claim by a third party that the Service infringes a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (ii) indemnify Client for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Service becomes or, in Company’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Company may, at its option (1) obtain for Client the right to continue using the Service or (2) replace or modify the Service so that such services become non-infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to Company, then Company may (3) terminate this Agreement upon written notice to Client. Fees that were pre-paid for the current term are non-refundable.
b. Exclusions. Company shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Service or Platform not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Service or Platform not created by or for Company, (iii) any Client Data, (iv) any portion of the Service that implements Client’s requirements, (v) Client’s continuing allegedly infringing activity after being notified thereof or (vi) Client’s continuing use of any version of the Service or Platform after being provided modifications that would have avoided the alleged infringement.
c. Entire Liability. The foregoing states the entire liability of Company, and Client’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or Platform, any part thereof or its use or operation.
8.3 Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
9. LIMITATION OF LIABILITY.
EXCEPT FOR ANY BREACH OF SECTION 5 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) THE AMOUNTS PAID TO IT (IN THE CASE OF COMPANY) OR PAID AND PAYABLE BY IT (IN THE CASE OF CLIENT) HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS OR (II) $10,000, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10. TERM AND TERMINATION.
10.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue for (1) years from the Effective Date, which term shall automatically renew for successive terms of one (1) year each, unless Client notifies Company of its intent not to renew this Agreement at least thirty (30) days prior to the end of the applicable term.
10.2 Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within ninety (90) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.3 Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (b) the provisions of Sections 1, (Definitions), 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments), 7 (Limited Warranty and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3 shall survive.
11. GENERAL PROVISIONS.
11.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.
11.2 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile (e.g., .pdf or electronic signature) copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.
11.3 Modification and Waiver. Company may modify this Agreement at any time by providing Client notice of any such amendment, and Client’s continued use of the Service following receipt of such notice will constitute Client’s acceptance of the modification. No change, consent or waiver under this Agreement will be binding on Company unless made in writing and physically signed by an authorized representative of Company. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
11.4 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.5 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in New York County, New York, and both parties consent to the jurisdiction of such courts with respect to any such actions.
11.6 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.7 Notices. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.8 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
11.9 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, Company may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
11.10 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.11 Insurance. Company shall provide evidence of the following insurance coverage upon Client’s written request:
- Professional Liability Insurance. Company shall provide liability limits of at least
$5,000,000 per claim and $5,000,000 in the aggregate. The retroactive insurance date of such insurance shall be no later than the commencement date of the Agreement. Such insurance shall remain in effect for two years following termination of this Agreement.
- Cyber Risk Insurance. Company shall procure and keep in effect insurance for the following risks: a) liability arising from theft, dissemination and/or use of confidential and proprietary information stored or transmitted in electronic form, and b) liability arising from the introduction of a computer virus into, or otherwise causing damage to, a client’s or third-party’s computer, computer system, network or similar computer-related property and the data, software and programs stored therein, with a limit of $5,000,000 per claim and in the aggregate. If the Cyber Risk Insurance is written on an occurrence basis, then Company shall continue to maintain such insurance for one (1) year following the termination of this Agreement. If the insurance is written on a claims-made basis, then Company will continue to maintain such insurance for 2 years following the termination of this Agreement.