Subscription Services Terms
These Subscription Services Terms (these “Terms”) govern all use of the Services and all Ordering Documents, entered into by the customer named in such Ordering Document (“Customer”), and Hireology, Inc. (“Hireology”). By signing an Ordering Document with Hireology, Customer agrees to abide by, be bound by, and be subject to, these Terms as though these Terms were set forth in their entirety in such Ordering Document. The Ordering Document, these Terms, and any links, schedules or exhibits referenced herein or in the Ordering Document shall constitute the entirety of the agreement between the parties (the “Agreement”).
IF YOU ARE AN INDIVIDUAL WHO IS ENTERING INTO THE ORDERING DOCUMENT ON BEHALF OF CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, IN WHICH CASE THE TERM “CUSTOMER” OR “YOU” SHALL REFER TO SUCH ORGANIZATION OR ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT SIGN THE ORDERING DOCUMENT AND YOU MAY NOT USE THE SERVICES.
These Terms are effective between Customer and Hireology as of the date Customer signs the Ordering Document (the “Effective Date”).
a. “Affiliates” means any legal entity that controls, is controlled by, or is commonly controlled with a party, and “control” means more than 50% ownership or the right to direct management of an entity.
b. “Confidential Information” means any non-public information of either party disclosed to the other, either directly or indirectly, in writing, orally, or by inspection, or to which the other party may have access, including, but not limited to: (a) technical or business information of either party, including, without limitation, any information relating to either party’s techniques, algorithms, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information; (b) any other information of either party that is marked as proprietary or confidential, or is otherwise reasonably understood to be confidential in nature given the circumstances of disclosure; and (c) the specific terms and conditions of these Terms, including the Services and pricing information. Confidential Information shall not include any information that (i) is or becomes generally known to the public through no fault or breach of these Terms by the disclosing party; (ii) receiving party can demonstrate by written evidence it was rightfully in its possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by receiving party without use of or access to Confidential Information of the disclosing party, or (iv) receiving party rightfully obtained from a third party not under a duty of confidentiality and without restriction on use or disclosure.
c. “Content” means the audio and visual information, reports, graphics, text, images and logos, algorithms, processes, user interfaces, and designs contained in, or made available to Customer, through the Subscription Services.
d. “Customer Data” means all information, data and materials uploaded or provided by Customer or its Users through their use of the Services. Customer Data does not include Usage Data, nor any other information reflecting the access or use of the Subscription Services by or on behalf of Customer or its Users.
e. “Documentation” means user guides, help and training materials, and other documentation that describes the functionality of the Services, and which may be updated, amended, and/or replaced by Hireology from time to time.
f. “Hireology Materials” means all Proprietary Rights of Hierology, including, but not limited to, ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, copyrights, patents, trademarks, service marks, trade dress, trade secrets, and other technologies and information, that are used by Hireology in providing the Services and Results (including any correction, improvement, extension, or other modification to the Services or to any of the foregoing Proprietary Rights made, created, conceived, or developed by or for Hireology, including at Customer’s request, or during the performance of Professional Services to Customer).
g. “Hireology Properties” means collectively, the Services, Documentation, Content, Results, Hireology Materials, Usage Data, and Aggregated Data (as defined below).
h. “Ordering Document” means, as applicable, the Order Form, and/or Statement of Work, entered into between Customer and Hireology.
i. “Order Form” means the mutually executed document by which Customer orders Subscription Services from Hireology, each of which shall be governed by these Terms.
j. “Order Term” means the length of time Customer will have access to the Subscription Services under the applicable Order Form.
k. “Personal Information” means “personal data”, “personal information,” “personally identifiable information”, or similar information defined in and governed by applicable data protection laws.
l. “Professional Services” means the technical, implementation, configuration, and/or other professional services provided or to be provided by Hireology to Customer under a Statement of Work.
m. “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets and trademarks.
n. “Results” means any and all reports, analyses, measurements, metrics or other output of data or information (including any and all summaries or graphical or numerical displays) relating to Customer Data that are generated through the use of the Subscription Services by Customer or its Users pursuant to the Agreement, including as any of the foregoing are accessible in and/or downloadable from the Subscription Services.
o. “Security Incident” means a breach of Hireology’s security systems that result in the accidental, unlawful, or unauthorized access, destruction, loss, alteration, or unauthorized disclosure of Customer Data stored on Hireology’s (or its related parties’) equipment, systems, or facilities.
p. “Sensitive Personal Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport or visa numbers, driver’s license numbers or similar personal identifiers, racial or ethnic origin, physical or mental health condition or information, birth dates, or other employment, financial or health information.
q. “Services” means the Professional Services and the Subscription Services.
r. “Statement of Work” means a written statement of work executed by the parties describing the Professional Services purchased by Customer, each of which shall be governed by these Terms.
s. “Subscription Services” means the interview, selection management, onboarding, talent management, and other related services purchased by Customer pursuant to an Order Form and provided via Hireology’s proprietary web-hosted software platform.
t. “Subscription Start Date” means the date the Subscription Services begin, and the Order Term commences.
u. “User” means an individual authorized by Customer to use and access the Services on behalf of Customer. Users may include Customer employees, agents, contractors, suppliers, customers, and other third-parties expressly authorized by Customer to access the Services on behalf of Customer in accordance with the Agreement.
2. Order Form. The Order Form shall set forth a description of the Subscription Services, the fees payable, the Order Term, and any applicable restrictions thereto. In the event of a conflict between these Terms and the Order Form, these Terms shall control, except where the Order Form expressly identifies a clause or term to be superseded therein. No amendments may be made to the Order Form without a mutual written agreement between the parties.
3. Use of the Subscription Services
a. Grant of Rights. Subject to the terms of the Agreement, Hireology grants Customer and its Users during the Order Term a limited, nontransferable (except as permitted in Section 14(e)), nonexclusive, and revocable right to access and use the Subscription Services and all Documentation solely for its internal business purposes. Customer’s use of the Subscription Services shall be in compliance with all applicable laws and comply with all other conditions set forth in the applicable Order Form. Customer shall ensure its Users use of the Services is in compliance with the terms of the Agreement and shall be liable to Hireology for all access and use of the Subscription Services by its Users.
b. Restrictions. Except as otherwise set out in these Terms, Customer will not, and shall ensure its Users do not: (i) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Subscription Services, in whole or in part; (ii) adapt, combine, modify, or create any derivative works from the Hireology Properties, or any part thereof; (iii) merge the Subscription Services with any other software; (iv) copy any ideas, features or functions of the Hireology Properties; (v) disclose to any third party any performance information or analysis relating to the Subscription Services; (vi) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer or otherwise grant any right to any of the Subscription Services or any of Customer’s rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body, or otherwise; (vii) create Internet “links” to any Hireology Properties or “frame” or “mirror” any Hireology Properties on any other server or wireless or Internet-based device; (viii) build a product competitive to the Subscription Services or Hireology Properties or a product with similar ideas, features and functionality as the Subscription Services; (ix) send, store, or introduce any software viruses, worms, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment (the “Malicious Code”); (x) use the Subscription Services in violation of law, or in a way that would infringe the Proprietary Rights of a third party; (xi) send spam, or otherwise duplicative or unsolicited messages in violation of applicable law; (xii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (xiii) remove or attempt to remove any proprietary notices or labels, or copy or use Hireology’s logo or trademarks without Hireology’s written consent; (xiv), circumvent or disable any security or other technological features or measures of the Subscription Services; and
(xv) attempt to gain unauthorized access into the Subscription Services or its related systems or networks.
c. Account. Customer is responsible for all the activity associated with its Subscription Services account, including any use or activities of its Users. Customer shall identify an administrative username and password that will be used to set up Customer’s account. Customer may use the administrative username and password to create subaccounts for its Users. Customer shall ensure its Users do not share or transfer usernames and passwords and that no other party other than authorized Users may access the Subscription Services. Customer agrees to notify Hireology immediately in the event of any unauthorized use of or access to the Subscription Services, or if Customer suspects a User account or password has been compromised in any way. Hireology reserves the right to suspend or cancel Users who violate the terms of the Agreement or that have been inactive for a period of six (6) consecutive months. Customer may grant different levels of access to the Subscription Services, including Customer Data available thereunder, to Users. Customer is solely responsible for designating the applicable access to be granted to each User.
d. Customer Systems. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment, software, network and communications equipment, and other services required to access and use the Subscription Services (collectively, the “Customer Systems”), and shall ensure that Customer Systems are compatible with the Subscription Services and comply with all configurations and specifications described in the Documentation.
e. Functionality Updates. Hireology will make available to Customer and its Users all updates, bug fixes, and enhancements to the Subscription Services that Hireology generally makes available to its customers. Such updates shall be deemed part of the Subscription Services. Any such updates or changes to the functionality shall not materially diminish the functionality originally provided to Customer. New or different modules or upgraded functionality shall be subject to an additional charge. Customer agrees that the development, release and timing of any features or functionality for the Subscription Services remains at Hireology’s sole discretion and Customer’s purchase of the Subscription Services is not contingent or dependent on the delivery of any future functionality, features or other services or products regardless of any communications about Hireology’s plans, including any information on the Hireology website or in any presentation, proposal, press release or public statement.
4. Maintenance and Support Services. Hireology will use commercially reasonable efforts to provide Customer with technical support for the Subscription Services and maintain the Subscription Services operating in accordance with the Documentation and the Agreement. Customer acknowledges and agrees that Hierology may charge Customer an additional fee for any Services provided by Hierology due to any problems, errors, or inquiries related to Customer Data or customer’s systems.
5. Professional Services. Hireology will provide account configuration and user training services as set forth in an Order Form or corresponding Statement of Work. Customer agrees to provide Hireology with reasonable cooperation, assistance, information, and access as may be necessary for Hireology to provide the Professional Services. Subject to the payment by Customer of the applicable Fees, Hireology will provide Professional Services if ordered by Customer in a Statement of Work. Hireology may use, assign, and remove personnel and contractors performing the Professional Services in its sole discretion. Provision of the Professional Services is subject to assistance and cooperation of Customer and may be delayed depending on the timeliness, accuracy, and completeness of the assistance and information provided by Customer. Unless otherwise agreed by the parties and set forth in the applicable Statement of Work, all Proprietary Rights that are created by Hireology in whole, or in part, during the performance of Professional Services shall be owned solely and exclusively by Hireology.
6. Proprietary Rights
a. Ownership of Services. Hireology and its licensors own all right, title and interest in and to the Services, and all Hireology Properties, including without limitation, all copyrights, registered marks, service marks, trademarks, trade secrets, patents, and other Proprietary Rights. Hireology reserves all rights to the Services not otherwise expressly granted hereunder. Hireology’s name, Hireology’s logo, and the product names associated with the Services are trademarks of Hierology or third parties, and no right or license is granted to Customer to use them. Hireology will be the sole and exclusive owner of all right, title and interest in and to any and all Results (exclusive of any Customer Data incorporated therein) and grants Customer a limited, non-exclusive right to use such Results during the Order Term.
c. Feedback. Customer grants to Hireology a worldwide, fully paid up, perpetual, irrevocable, and transferable license to use and incorporate into the Services any suggestions, recommendations, enhancements, and feedback regarding the Services.
d. Usage Data & Aggregated Data. Customer acknowledges and agrees that Hireology may collect and use data reflecting the access or use of the Subscription Services by Customer or any User, including any profile, visit, session, impression, click through or click stream data (the “Usage Data”) to be used for purposes of providing and improving the Subscription Services. In addition, Hireology may aggregate and analyze Customer Data and Usage Data with other data of customers or third parties to create reports, studies, analysis, and other work products on an anonymous and aggregated basis (the “Aggregated Data”). Such Aggregated Data shall be used to perform analytics and reporting for system metrics, benchmarking and marketing for industry, financial and other lawful business purposes. Resultant Data shall not identify Customer as the source of any specific data or finding, nor will it include any Personal Information of any individual Users nor data that is identifiable as Customer Data. Hireology will be the sole and exclusive owner of all right, title and interest to such Usage Data and Aggregated Data and may use and disclose such data as it deems appropriate.
7. Fees & Payment Terms
a. Fees. The fees payable shall be set forth in the Ordering Document (the “Fees”). Upon execution, and except as otherwise set forth herein, Ordering Documents are non-cancellable, Fees are non-refundable, and quantities purchased may not be decreased during the relevant term. Customer acknowledges and agrees that the pricing for the Subscription Services in an Order Form may be based on the number of employees (or expected employees) as of the Order Effective Date and/or the amount of expected usage. Hireology may increase the price in the Order Form if (i) Customer’s employee count is meaningfully different than that set forth in the Order Form for an extended period of time, or (ii) Hireology reasonably determines that Customer has exceeded a reasonable level of usage of background checks, drug screens, motor vehicle reports, onboarding, payroll employee count, or any other Services priced based on usage.
b. Payment Terms. Fees for the Subscription Services will be billed in advance in accordance with Invoice Period on the Order Form on the Subscription Start Date. Professional Services shall be billed in accordance with the terms in the corresponding Ordering Document and shall be invoiced on the effective date therein. Unless otherwise set forth in an Ordering Document, Fees are due and payable within thirty (30) days of the invoice date, except for amounts disputed in accordance with these Terms. Customer is responsible for advising Hireology of any change in billing or contact information. Customer must provide Hireology with valid credit card or approved purchase order information as a condition to entering into the Agreement. Except as otherwise expressly agreed in an Ordering Document, payments shall be made in US dollars at Hireology’s address (or to an account specified by Hireology), in full without set-off, counterclaim, or deduction.
c. Disputed Invoices. Any such invoice dispute shall be submitted in writing within thirty (30) days of the date of the applicable invoice. Except for any Fees disputed in good faith, any Fees not timely paid by Customer shall accrue late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is less, from the date such payment was due until the date paid. Customer shall reimburse Hireology for any costs and expenses, including attorneys’ fees and court and administrative costs, incurred by Hireology to collect any unpaid amount. Amounts due to Hireology under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
d. Taxes. All Fees and other charges specified in these Terms are exclusive of all applicable federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including sales taxes, use taxes, and value added taxes) (the “Taxes”). Customer shall be responsible for all Taxes, other than taxes on Hireology’s net income, as a result of the transactions contemplated by this Agreement. All amounts payable by Customer hereunder, including all Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to Hireology. If Hireology has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 7(d), Hireology will invoice Customer and Customer will pay that amount unless Customer provides Hireology with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Suspension. Hireology may, without limitation to any of its other rights or remedies, suspend the Services where Customer fails to timely pay any Fees in accordance with these Terms or if Customer has violated any of the applicable provisions in Section 3 (Use of the Subscription Services), until such time as Customer remedies the applicable violation. Hireology reserves the right to impose a reconnection fee in the event Customer’s access to the Subscription Services is suspended and Customer thereafter requests access to the Subscription Service.
8. Term & Termination.
a. Term. Unless earlier terminated in accordance with the terms of the Agreement, the term of the Order Form shall commence on the Effective Date and continue in effect for the term identified in the Order Form (the “Initial Order Term”). Thereafter, and unless otherwise set forth in the Order Form, the term will be extended automatically for additional terms of equal length (each, a “Renewal Order Term”) (the Initial Order Term and each Renewal Term, together, the “Order Term”). With respect to the Professional Services, each Statement of Work shall continue for the period set forth in that particular Statement of Work, and, if no period is provided, then through Hireology’s completion or termination of the Professional Services described therein (the “Statement of Work Term”).
b. Termination. Either party may terminate these Terms and the Ordering Document, effective upon delivery of written notice by a party hereto, (i) upon a material breach by the other party if such breach remains uncured for a period of thirty (30) days following written notice (or ten (10) days in the case of Customer’s failure to pay any invoiced Fees when due); or (ii) immediately upon the institution of insolvency, receivership, bankruptcy proceedings, assignment for the benefit of creditors, or any other proceedings for the settlement of debts of the other party, and such proceeding is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates, or otherwise fails to operate in the ordinary course. In addition, Hireology may terminate the Agreement upon prior written notice to Customer where a change in law or regulation (or interpretation thereof) either causes a substantial increase in costs and the parties are unable to agree to increased pricing, or such change prohibits or materially restricts the provision of the Services contemplated hereunder.
c. Cancellation. If set forth in an Ordering Document, Customer may terminate the Ordering Document by providing Hireology with thirty (30) days prior written notice. If Customer terminates a Statement of Work for convenience, Customer shall pay all due and outstanding Fees for Professional Services provided up through the date of termination.
d. Effect of Termination. Upon termination of the Agreement for any reason, (i) Customer’s access to and use of the Services will cease immediately, (ii) Customer and its Users’ accounts will be disabled, and (iii) Customer shall promptly pay to Hireology any Fees or other amounts that have accrued prior to the effective date of termination. If Hireology terminates these Terms and corresponding Ordering Document due to Customer’s uncured material breach, all Fees under such Ordering Document shall become immediately due and payable within ten (10) days of the effective date of termination. Following termination or expiration of the Agreement, upon Customer’s request, which must be received within thirty (30) days after any expiration or termination of the Agreement, Hireology will make available to Customer a machine-readable file (in Hireology’s than current standard format) of the Customer Data, at no additional cost to Customer, provided Customer does not require a special format. If such thirty (30) day period elapses without a request from Customer, Hireology shall have no obligation to maintain or provide any Customer Data, and may thereafter, unless prohibited by law, delete all Customer Data without any liability for such deletion. If Customer requires a special format or additional transition services, Hireology reserves the right to charge Customer additional fees at its then current times and materials rates.
e. Survival of Certain Terms. All provisions that by their nature are intended to survive termination (including, but not limited to, Fees & Payment Terms, Indemnification, Limitation of Liability, Confidentiality, Proprietary Rights, Warranties; Disclaimers, and General Provisions) will remain in effect following such termination.
a. The receiving party shall not disclose, use, transmit, inform or make available to any entity, or person, any Confidential Information of receiving party, except as necessary to perform its obligations hereunder. The receiving party will safeguard the Confidential Information with at least the same degree of care (but in no event less than reasonable care) as it uses to protect its own Confidential Information. The receiving party will limit the disclosure of such Confidential Information to those of its employees and contractors with a bona fide need to access such Confidential Information for the exercise of its rights and obligations under these Terms; provided that all such employees and contractors are subject to binding use and disclosure restrictions at least as protective as those set forth herein. The receiving party shall be responsible for any unauthorized disclosures of the Confidential Information by it or any party with whom it shares the Confidential Information, as permitted hereunder. Receiving party may disclose Confidential Information to the extent compelled by law, or by court or government order, provided, it gives the disclosing party prior notice of the disclosure (to the extent legally permitted) so that the disclosing party may attempt to limit such disclosure. The receiving party shall disclose only that which is required to comply with the law or government order.
b. Each party shall return or destroy the Confidential Information of the other party upon termination or expiration of these Terms, except each party may retain Confidential Information maintained pursuant to automatic-back-ups which cannot reasonably be deleted, or as required by applicable law. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence.
10. Data Privacy & Security
a. Security. Hireology has implemented and shall maintain administrative, physical, and technical safeguards consistent with industry standards designed for protection of the security, confidentiality, and integrity of Customer Data. Such safeguards shall include measures designed to protect against and measures to prevent unauthorized access, use, modification, or disclosure of Customer Data. Hireology will use commercially reasonable efforts to prevent the introduction of Malicious Code into Customer’s systems (except Hireology will not be responsible for any Malicious Code introduced by Customer or its Users to the Subscription Services). Hireology shall promptly notify Customer of any confirmed Security Incident that has impacted Customer Data and shall investigate such Security Incident and take reasonable steps to mitigate and remediate such Security Incident.
b. California Consumer Privacy Act. By entering into this Agreement, Customer instructs Hireology to use, retain and disclose Personal Information only to provide the Services and to perform its other obligations and exercise its rights under the Agreement. Where the CCPA applies and Customer is deemed a Business thereunder, it is the parties’ intent that Hireology is a Service Provider and not a third party with respect to any Personal Information. Hireology shall not (i) sell any Personal Information; (ii) retain, use or disclose any Personal Information for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing the Personal Information for a commercial purpose other than the provision of the Services; or (iii) retain, use or disclose the Personal Information outside of the direct business relationship between Hireology and Customer, except as permitted hereunder. Hireology hereby certifies that it understands its obligations under this Section 10(b) and will comply with them. The parties acknowledge and agree that Hireology’s access to Personal Information does not constitute part of the consideration exchanged by the parties in respect of the Agreement. All capitalized terms in this Section shall have the meaning ascribed to them in the CCPA. For purposes of this Section 10(b), “CCPA” means the California Consumer Privacy Act 2018, California Civil Code Section 1798 et seq., and ensuing regulations adopted by the California Attorney General, and any legislation or regulation implementing, made pursuant to it, or which amends, replaces, re-enacts, or consolidates it.
11. Warranties; Disclaimer of Warranty
a. Mutual Warranties. Each party represents and warrants to the other that: (i) it has the authority to enter into the Agreement; (ii) it is a properly incorporated organization in good standing in the jurisdiction where it is formed; and (iii) the execution, delivery, and performance of the Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound. Each of the parties warrants to the other, and for the benefit of the other party only, that the representations in this Section will remain true throughout the term of the Agreement.
b. Subscription Services. Hireology warrants that during the Order Term, the Subscription Services will operate in substantial conformity with the specifications set out in the Documentation and Order Form and that the Services are compliant with applicable law. If the Subscription Services fail to meet this warranty, Customer shall notify Hireology no later than ten (10) days after the first date the non-conformance is identified by or becomes known to Customer. Upon such notification, Hireology shall, as Customer’s sole and exclusive remedy, repair, replace, or work-around the non-conforming Subscription Services, at Hireology’s cost and expense. If Hireology is unable to, or determines that it is not commercially reasonable to, correct such nonconformity within thirty (30) days after receipt of notice of such nonconformity from Customer, then Customer may terminate this Agreement with thirty (30) days’ written notice and receive a pro-rated refund of any pre-paid Fees for the non-conforming portion of the Subscription Services.
c. Professional Services. Hireology warrants that the Professional Services will be performed in a diligent, professional and workmanlike manner by qualified personnel with suitable training, experience, and skills to perform the Professional Services. If Customer reports in writing any nonconformity with this warranty within fifteen (15) days of becoming aware of the non-conformity, then Hireology shall, at no additional charge, use commercially reasonable efforts to re-perform the Professional Services to correct the nonconformity. The foregoing shall be Customer’s sole and exclusive remedy for breach of this Professional Services warranty.
d. Warranty Exclusions. Hireology will have no liability or obligation with respect to any warranty above, nor any other obligation in the Agreement to the extent any nonconformity or issue is attributable to any: (i) use of the Services by Customer and/or a User in violation of the Agreement (including these Terms) or applicable law; (ii) alterations or modifications of the Services by Customer or a User not otherwise expressly approved by Hireology, (iii) Customer Systems, (iv) Customer Data received by Hireology (including any applicant data), or (v) acts or omissions of Customer or its Users.
e. No Professional Advice. In the course of using the Service, Hireology may provide Customer with general advice regarding the use of its products and other areas pertaining to the Service provided. However, Hireology does not and cannot render legal advice, and Customer must rely on their professional advisors alone for such advice.
f. Warranty Disclaimer.
i. EXCEPT FOR THE WARRANTIES IN THIS SECTION 11, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. HIREOLOGY AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. HIREOLOGY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES WILL BE SECURE, FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, NOR THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE. HIREOLOGY DOES NOT WARRANT THAT USE OF THE SERVICES WILL ENABLE CUSTOMER TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS IN CUSTOMER’S BUSINESS OPERATIONS, AND HIREOLOGY SHALL HAVE NO RESPONSIBILITY TO CUSTOMER FOR ANY COMMUNICATIONS MADE OR FAILED TO BE MADE BY CUSTOMER USING THE SUBSCRIPTION SERVICES.
ii. Screening Tools. Hireology may make screening tools available to Customer for Customer’s use in the application process, including, screener questions, phone screen tools, and employee assessments (collectively, the “Screening Tools”). HIREOLOGY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY DECISIONS MADE BY CUSTOMER BASED ON RELIANCE OR USE OF THE SCREENING TOOLS. CUSTOMER AGREES AND ACKNOWLEDGES IT IS SOLELY RESPONSIBLE FOR ANY QUESTIONS AND ASSESSMENTS MADE USING THE SCREENING TOOLS AND SHALL BE FULLY LIABLE FOR ANY RESULTS DEEMED TO BE A DISPARATE IMPACT. CUSTOMER FURTHER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR OFFERING ALTERNATIVE METHODS OF SCREENING IF SO REQUIRED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE AMERICANS WITH DISABILITIES ACT. HIREOLOGY DOES NOT WARRANT THAT THE METHOD OF DELIVERY OF ANY QUESTIONS OR OTHER CONTENT INPUT BY CUSTOMER COMPLIES WITH APPLICABLE LAWS.
a. Indemnification by Hireology. Hireology will indemnify Customer from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including reasonable legal fees resulting from (i) any final judgment that the Services infringe the Proprietary Rights of a third party registered in the United States (an “Infringement Claim”), and (ii) a third-party claim arising from Hireology’s gross negligence or willful misconduct hereunder. If Customer is enjoined from using the Services or the Services become, or Hireology believes the Services are likely to become, the subject of an Infringement Claim, then Hireology shall have the right, in its sole discretion, to (i) obtain for Customer the right to continue use of the Services; or (ii) replace or modify the Services so that they are no longer infringing. If in Hireology’s discretion neither of the foregoing options is reasonably available to or commercially feasible for Hireology, then Hireology, in its sole discretion, may terminate the affected Services and Hireology’s sole liability shall be to provide Customer a pro-rata refund of any prepaid Fees attributable to the Services that were to be provided after the effective date of termination. THIS SECTION SETS FORTH HIREOLOGY’s SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
b. Exclusions. Hireology’s indemnification obligation for an Infringement Claim shall not apply to an infringement or violation that is attributable to (i) any unauthorized use, access, combination, alteration, or modification of the Services by Customer or its Users, (ii) any use of the Hireology Properties not strictly in accordance with this Agreement; (iii) any implementation specifically performed upon Customer’s instruction, and (iv) Customer’s continued use of allegedly infringing materials after being notified thereof ( collectively, the “Exclusions”).
c. Customer Indemnification. Customer will indemnify, defend and hold Hireology, and its officers, directors, employees, and contractors harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including reasonable attorney’s fees and costs, brought by a third party resulting from (i) use of the Services in a manner not authorized by this Agreement, or in violation of applicable law (including any discriminatory practices), (ii) any allegation that the Customer Data or any other material provided or made accessible to Hireology infringes the Proprietary Rights of a third party or otherwise violates any other rights of a third party; (iii) any Infringement Claim resulting from the Exclusions; (iv) use of the Services or Results for or with respect to any recruiting, or hiring practices, or other decisions made by Customer based on its use of the Services; (v) Customer’s gross negligence or willful misconduct; (vi) any violation by Customer of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Personal Information provided to Hireology hereunder; and (vii) any death, personal injury, bodily injury, or property damage caused by Hireology’s representatives while present at Customer’s premises to the extent caused by Customer. Hireology reserves the right to participate in the defense of any such claim and to be represented by counsel of its choice.
d. Procedure. The indemnified party must furnish the indemnifying party with a copy of each communication, notice or other action relating to a claim under this Section 12 promptly after the indemnified party receives such notice and each such communication. Failure to deliver timely notice will not relieve the indemnifying party of its obligations hereunder unless the indemnifying party is materially prejudiced by such failure. The indemnifying party will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at the indemnifying party’s expense, provided that the indemnifying party shall not enter into any settlement that affects the indemnified party’s rights or interests without the indemnified party’s prior written approval. The indemnified party will provide reasonable information and assistance requested by the indemnified party in connection with such claim or suit.
13. Limitation of Liability. IN NO EVENT WILL HIREOLOGY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO CUSTOMER OR ANY OF ITS USERS (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH SUCH PARTY) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, OR LOSS OF PROFITS ARISING FROM OR RELATING TO THESE TERMS OR ANY ORDERING DOCUMENT, THE SERVICES OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON HIREOLOGY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL HIREOLOGY BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO HIREOLOGY UNDER THE ORDERING DOCUMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. HIREOLOGY WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET AND ELECTRONIC COMMUNICATIONS. THESE LIMITATIONS WILL APPLY EVEN IF HIREOLOGY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION WILL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
14. Third Party Services. During use of the Subscription Services, Customer may purchase or have access to services (the “Third Party Services”) provided by third parties (the “Third Party Service Provider”). In some cases, the Third Party Service Provider may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware, or services and such access and use shall be solely between and governed by that certain agreement between Customer and the Third Party Provider. In such cases, Hireology and its licensors shall have no liability, obligation, or responsibility for any correspondence, purchase, or provision of Third Party Services between Customer and any such Third Party Service Provider. Hireology does not endorse any sites on the Internet that are linked through the Subscription Services. Hireology provides these links to Customer only as a matter of convenience, and in no event shall Hireology or its licensors be responsible for any content, products, or other materials on or available from such sites.
15. General Provisions
a. Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any personnel of the other party in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
b. Notices. All notices shall be sent by registered post, return receipt requested, to the specified address in the Ordering Document, or by email to the designated email address and shall be deemed to have been given as of the time recorded by the delivery service. Either party may provide new notice addresses with written notice to the other party. Customer acknowledges and agrees that notices posted on the Subscription Services or sent by email satisfy any legal requirement that notices be in writing.
c. Governing Law & Notices. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement.
d. Assignment. Customer may not transfer or assign, in whole or in part, these Terms voluntarily or by operation of law without the prior written consent of Hireology. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to (i) its Affiliate, or (ii) a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided, in either case, that the assignee agrees in writing to be bound by all the terms of this Agreement. All assignments by Customer to an Affiliate must be to a Financially Capable entity. For purposes of this Section, “Financially Capable” means the entity has the sufficient financial resources to meet Customer’s payment obligations under this Agreement. Any attempted transfer in violation of this Section shall be null and void. Hireology may, in its sole discretion, use contractors and other third party service providers in performing the Services, provided Hireology shall remain liable to Customer for the Services. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.
e. Force Majeure. Except with respect to payment obligations hereunder, under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control, including, but not limited to, flood, earthquakes, epidemic/pandemic, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees or contractors), service disruptions involving hardware, software, or power systems not within such party’s possession or reasonable control, internet service or telecommunications’ carrier failure or delay, denial of service attacks, or any other similar event outside of a party’s reasonable control.
f. Other Countries. Hireology makes no representation that the Services are appropriate or available for use in other locations. If Customer uses the Services from outside the United States of America or the European Union, Customer is solely responsible for compliance with all applicable laws, including export and import regulations of other countries. Any diversion of the Services contrary to United States or European Union (including European Union Member States) law is prohibited.
g. Remedies. Except as specifically provided otherwise, 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 by (i) Customer of Section 3, or (ii) either party of Sections 6 (Proprietary Rights) and 9 (Confidentiality), 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.
h. Miscellaneous. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms will remain in effect. There are no third-party beneficiaries under the Agreement. The Ordering Document and these Terms with respect thereto, and all documents incorporated by reference hereto, will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. These Terms may be changed by Hireology upon notification to Customer. Continued access to the Services shall be deemed acceptance of such revised Terms. No failure of either party to exercise or enforce any of its rights under these Terms will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches. Any term or condition contained in Customer’s purchase order or in any of Customer’s other order documentation (other than Ordering Document) is void and shall be of no effect on the parties. An Ordering Document may be executed in multiple counterparts and may be signed electronically.