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Simplicant is the leading social recruiting platform and applicant tracking system built from the ground up to harness the power of the newest and most effective paradigms in talent acquisition, recruitment marketing, employee referrals and applicant tracking combined in one complete and integrated social recruitment management system.
“Applicant” means an individual who submits a resume, job application, inquiry or other data, information, content or materials to Customer via the Job Site.
“Applicant Data” means any and all data, information, content and materials uploaded or imported into the Platform by an Applicant (such as resumes and cover letters).
“Customer Data” means any and all data, information, content and materials uploaded or imported into the Platform by or on behalf of Customer (such as content for display on the Job Site).
“Effective Date” means the date that the Company countersigns the Simplicant Proposal, as described therein.
“End Users” means Customer’s individual personnel that use the Platform.
“Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
“Job Site” means a website operated by Customer for purposes of displaying job openings for Customer’s business that is enabled and hosted by, and managed by Customer through use of, the Platform.
“Platform” means the job applicant management platform hosted and made available by Company as a software-as-a-service called “Simplicant”. References to “Platform” herein shall be deemed to refer to the specific version of the Platform (and features and limitations applicable thereto) referenced in the Simplicant Proposal.
“Pricing Plan” means the pricing plan for the Platform set forth on the Simplicant Proposal.
“Simplicant Proposal” means the written proposal for Customer’s use of the Platform executed by both Customer and Simplicant and referencing these Master Terms and Conditions.
“Services” means any services relating to the Platform which Company may agree to perform for Customer hereunder, including (by way of example) configuration services, training services, development and provision of custom features or functionality and user interface customizations. Services shall only be provided pursuant to a Statement of Work mutually executed by the parties.
“Statement of Work” or “SOW” means each written agreement for Services to be performed subject to this Agreement in the Company’s standard form which is executed by authorized representatives of each party and references this Agreement.
“Initial Term” means the period of time specified as the ”Initial Term” on the Simplicant Proposal.
2.1 Provision of Platform
Subject to all terms and conditions of this Agreement, Company shall provide Customer the right to access and use the version of the Platform stated on the Simplicant Proposal during the Term, solely: (i) for Customer’s own use for purposes of managing job postings and job applications for Customer’s business; (ii) in the manner enabled by Company; and (iii) in accordance with all applicable documentation, any usage limitations applicable to the Simplicant Proposal, and any reasonable rules or guidelines that Company may provide. Company reserves the right to modify and update the features and functionality of the Platform from time to time in its sole discretion. Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Platform. Customer agrees to comply with all applicable laws, rules and regulations in connection with Customer’s use of the Platform, including without limitation laws relating to non-discrimination in employment, wage and hour laws and all other employment and labor laws.
Customer acknowledges that use of the Platform is provided only for Customer’s own use in direct relation to Customer’s own hiring needs, and agrees not to use the Platform for the benefit of any third party. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Platform, make the Platform available to any third party or use the Platform on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Platform, (iii) create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Platform; or (vii) use the Platform to develop a competitive product offering. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Platform, except solely to the extent as may be specifically enabled and authorized by the Company.
2.3 Job Site
The Platform allows for certain customizations of the Job Site, including selection from pre-set templates created by Company. Customer acknowledges that neither Company nor any other customer of Company shall be prevented from using, creating or making available a user interface that is similar to any Job Site user interface created or customized by Customer, provided that the foregoing does not constitute a license under Customer’s trademarks.
Without limiting the generality of Section 7.2, Company may suspend, limit or terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent material errors or harm to the Platform or any other system or network, or to limit Company’s liability; or (ii) Customer attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other customers of the Platform or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
Customer is responsible for the activities of any and all persons accessing the Platform using any user name and password issued to Customer. Customer shall use, and shall instruct its End Users to use, all reasonable means to secure user names and passwords, and shall promptly notify Company if it suspects that any user name and password has been compromised.
2.6 Third Party Services
The Platform may include features or functionality that interoperate with online services operated by third parties such as LinkedIn and Twitter (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Customer acknowledges that interoperability with Third Party Services is provided as a convenience and does not constitute material functionality of the Platform or form any basis for the payment of Fees hereunder. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
Provided that Customer timely pays all Fees due hereunder, Company shall provide during the Term reasonable technical support to Customer regarding the use of the Platform during Company’s normal business hours via e-mail sent to firstname.lastname@example.org. While Company shall use commercially reasonable efforts to ensure the ongoing availability of the Platform, Company makes no representation, warranty or guarantee regarding the continuous availability or performance of the Platform. Customer acknowledges that the Platform may be unavailable for use from time to time without notice to Customer.
Customer acknowledges and agrees that Company has no obligation to monitor or edit the Customer Data or Applicant Data, and that as between the parties Customer is solely responsible therefor. Company reserves the right to remove any Customer Data or Applicant Data which Company becomes aware may violate the terms of this Agreement, violate any law, rule or regulation or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.
3.2 Customer-Owned Data
As between the parties, Customer shall own all right, title and interest in and to Customer Data and Applicant Data. Customer hereby grants Company a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Customer Data and Applicant in connection with Company’s operation of the Platform and as otherwise authorized herein. Company may use and disclose Customer Data and Applicant Data as follows: (i) Company may use Customer Data and Applicant Data for Company’s internal business purposes (such as analyzing usage of and developing and improving Company’s products and services); (ii) Company may disclose Customer Data and Applicant Data to its third party service providers that assist it in making the Platform available as is reasonably necessary for such assistance; (iii) Company may disclose Customer Data and Applicant Data as may be required by law or legal process; and (iv) Company may disclose Customer Data and Applicant Data where it is aggregated with data unrelated to Customer and where neither Customer nor any End User or Applicant is identified.
3.3 Usage Data
As between the parties, Company shall own all right, title and interest in and to all data collected, received or generated by Company in connection with the operation of the Platform and Customer’s use thereof, other than Customer Data and Applicant Data (collectively, “Usage Data”) . Usage Data may include, by way of example and not limitation, when and how often End Users use the Platform and which Platform features are used the most often. Company will not disclose Usage Data to any third party in a manner that identifies Customer or any End User or Applicant without Customer’s consent other than: (i) disclosure to the Company’s third party service providers who use it for the benefit of Company; or (ii) as may be required by law or legal process.
Company is not obligated to provide access to Customer Data or Applicant Data following any expiration or termination of this Agreement. Customer is responsible for retaining copies of Customer Data and Applicant Data as Customer may deem appropriate.
Customer acknowledges that: (i) the Platform uses the Internet for data transfer and Internet-connected servers to store Customer Data and Applicant Data; (ii) while Company uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) that Internet communications have inherent insecurities. As such, Company does not represent or warrant the security of the Customer Data or Applicant Data.
The parties may agree from time to time that Company shall perform Services for Customer pursuant to an SOW. Each SOW shall identify the following: (i) the nature of the Services; (ii) the deliverables, if any, to be provided by Company to Customer in connection with the Services and the acceptance criteria and process therefor; (iii) a time schedule for estimated performance of Services by Company; and (iv) labor rates and/or amount of payment for Services, including any expenses which are to be reimbursed. Unless otherwise agreed in writing by both parties, the labor rates delineated in each Statement of Work shall apply to that Statement of Work. Except to the extent otherwise provided for in an SOW, any deliverables under an SOW that are Platform customizations, features or functionality shall, upon payment therefor by Customer under such SOW, constitute part of the Platform made available to Customer hereunder. Customer’s rights with respect to any tangible deliverables that are provided to Customer shall be as set forth in the applicable SOW. To the extent an SOW does not set forth such rights, Company shall retain ownership of such tangible deliverable and Customer shall have a limited, non- exclusive, non -transferable license during the Term to use such tangible deliverable for its intended purpose in relation to Customer’s use of the Platform. For the avoidance of doubt, any Platform customizations, features or functionality do not constitute tangible deliverables and Company shall in all cases retain ownership of all right, title and interest therein and thereto. In the event of any conflict between these Master Terms and Conditions and a Statement of Work, the terms of these Master Terms and Conditions shall control and govern.
4.2 Performance of Services
Customer acknowledges that the Services will be performed on the basis of Company using its commercially reasonable efforts and judgment based on the information available to Company. To the extent Company utilizes subcontractors in the performance of the Services, it shall remain liable for their performance and compliance with Company's obligations hereunder.
4.3 Customer Resources
Customer shall provide, maintain and make available to Company, at Customer’s expense and in a timely manner, the following resources, and such other additional resources as are specified in the applicable SOW or as Company may from time to time reasonably request in connection with Company’s performance of the Services: (i) qualified Customer personnel or representatives who will be designated by Customer to consult with Company on a regular basis in connection with the Services and provide Company with documentation or other information necessary to perform the Services; and (ii) access to Customer’s premises and appropriate systems and/or workspace for Company personnel at Customer’s premises as necessary for performance of those portions of the Services to be performed at Customer’s premises. To the extent Customer does not provide any such resources in a timely manner (regardless of whether such failure is by Customer or by any third party vendor, supplier, licensor or contractor of Customer), Company’s time for performance of the applicable Services shall be extended by the amount of time corresponding to such delay.
5. ECONOMIC TERMS
Customer shall pay Company the Fees as set forth in the Pricing Plan and any SOWs. All periodic recurring Fees (such as annual subscription amount) shall be due and payable in advance of the applicable period. All other Fees are due and payable in arrears except to the extent otherwise set forth in an SOW.
5.2 Payment Terms
Company shall invoice Customer for Fees on the applicable period basis, with each invoice provided up to thirty (30) days prior to the first day of the applicable period (provided that no invoice will be provided in the event that no Fees accrued during such period, e.g., in the event that Customer prepays for a full year in January and does not incur any fees under an SOW in March, no invoice would be sent for March). Customer agrees to pay each invoice within thirty (30) days of the invoice date. All payments will be made in U.S. dollars. Company may suspend Customer’s access to and use of the Platform in the event Customer’s account is past due. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s income.
As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by Company prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by Company after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Platform or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other compensation to Customer.
7. TERM; TERMINATION
This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for the Initial Term. This Agreement shall automatically renew for one or more additional renewal terms to the extent specified in the Simplicant Proposal, if any (any such renewal terms together with the Initial Term, the “Term”).
(a) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.(b) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
7.3 Effect of Termination
All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2 through 2.7, 3.1 through 3.5, 5 (with respect to accrued but unpaid fees), 6, 7.3, 8, 9, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement. In the event of a termination of this Agreement by Customer under Section 7.2(a), Company shall provide a pro-rated refund for any pre-paid Fees associated with the time period for which use of the Platform was not received due to such termination.
8. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
Customer represents and warrants to Company that: (i) it has all right, title, and interest in and to the Customer Data necessary for its use in connection with the Platform; (ii) it shall not use the Platform in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection, employment and labor laws or the CAN-SPAM Act; and (iii) the Customer Data and Applicant Data (including the storage, reproduction, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party or (y) slander, defame, or libel any person.
Customer agrees to, at its own expense, defend, indemnify and hold harmless Company and its directors, officers and employees from and against any liabilities, damages, losses, judgments, costs, expenses (including reasonable attorneys fees), claims, actions, demands and suits arising out of or relating to any actual or alleged breach by Customer of any covenant, representation or warranty of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM.
Each party shall keep confidential all information and materials provided or made available by the other party that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including e-mail) as such within fifteen (15) days of the disclosure (“Confidential Information”). The features, functionality and content of the Platform, any Platform documentation, and any information regarding planned modifications or updates to the Platform or other Company products and services constitutes Confidential Information of Company. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall disclose Confidential Information to any third party except as expressly authorized by the disclosing party. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as expressly authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 11, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
12. LIMITATION OF LIABILITY
COMPANY SHALL NOT BE LIABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION 12 CONSTITUTE A FUNDAMENTAL BASIS OF THEIR BARGAIN.
13.1 Relationship of the Parties
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
13.2 Third Party Beneficiaries
Nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Company. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of Customer or similar transaction shall be deemed to constitute an attempted assignment of this Agreement. Company may freely assign this Agreement. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
13.4 Force Majeure
Company will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to (with respect to Company) the Company address noted in the preamble of this Agreement and (with respect to Customer) to Customer’s address set forth in the Simplicant Proposal. Notices shall be sent to the attention of the “Legal Department” of each party. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
13.7 Construction; Conflict
Section headings are for reference purposes only, and should not be used in the interpretation hereof. In the event that there is any conflict between any provision of these Master Terms and Conditions and the Simplicant Proposal, the terms of the Simplicant Proposal shall control, provided that nothing in the Simplicant Proposal shall be construed to supersede, modify or delete any portion of Sections 3.6, 6, 8.2, 9, 10 or 12 except to extent the Simplicant Proposal makes express reference to such supersession, modification or deletion.
13.8 Severability; Wavier; Counterparts
If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
13.9 Governing Law; Jurisdiction
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in San Francisco, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
13.10 Entire Agreement
This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.