Terms and Conditions

1. Order Forms

These online terms and conditions (the “Terms and Conditions”), together with the applicable Order Form(s), govern Customer’s use of the Jobvite Products (as defined below). The Order Form(s) and these Terms and Conditions are collectively referred to as the “Agreement.” Each Order Form is hereby incorporated by reference into the Agreement. By executing or clicking to accept an Order Form that references these Terms and Conditions, Customer agrees that (a) these Terms and Conditions, as may be modified from time to time, govern Customer’s use of the Products, and (b) the term “Customer” means the entity so identified in the applicable Order Form. Any capitalized term not defined in the Order Form or in these Terms and Conditions shall have the meaning ascribed to it in any Jobvite application. If any provision of an Order Form is inconsistent with the Terms and Conditions, the terms of the Order Form will prevail over the Terms and Conditions solely to the extent of such inconsistency.

2. Right to Use Products

2.1 License. Subject to the terms and conditions of this Agreement and payment of applicable fees, Jobvite grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term specified in the Order Form(s), to access and use the Jobvite products set forth in the applicable Order Form(s) and all updates thereto made available by Jobvite (the “Products”), including any applicable downloadable software (“Software”), solely for Customer’s internal business purposes.

2.2 Restrictions. Customer will not, directly or indirectly, and will not authorize any third party to: (a) copy, modify, translate, adapt or otherwise create derivative works or improvements of the Products or any part thereof; (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Products, in whole or in part; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products, or any features or functionality of the Products, to any third party for any reason; (d) remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Products; (e) use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, rule, or regulation; (f) use the Products for purposes of competitive analysis of the Products, the development of a competing product or service, or any other purpose that is to Jobvite’s detriment or commercial disadvantage; (g) combine or integrate the Products with any software, technology, services, or materials not authorized by Jobvite; (h) design or permit its authorized users to design interfaces that mimic any Products interface; (i) use any authorized users’ logins, passwords or security tokens to share the Products with third parties; or (j) access or use the Products in any manner that is not in compliance with the terms of the Agreement.

2.3 Acceptable Use. Customer will use the Products solely for lawful purposes. Customer agrees not to use, or allow others to use, the Products in any way that: (a) is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable, unlawful, or harmful; (b) incites, encourages, or threatens immediate physical harm against another, including but not limited to content that promotes racism, bigotry, sexism, religious intolerance, or harm against any group or individual; (c) contains any material that solicits personal information from, or exploits, anyone under 18 years of age; (d) harvests or otherwise collects e-mail addresses or other contact information about other users from the Products for the purposes of sending unsolicited e-mails or other unsolicited communications; (e) advertises or solicits a business not related to or appropriate for the Products (as determined by Jobvite in its sole discretion); (f) uses automation software, hacks, mods, or any other unauthorized third-party software intended to interfere with the Products; or (g) interferes with, disrupts, or creates an undue burden on the Products or on any networks or services connected with the Products.

3. Data Security and Use of Information

3.1 Security. Jobvite uses commercially reasonable physical, administrative, and technical safeguards to preserve the integrity and security of the information you submit via the Products. However, no method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, Jobvite cannot ensure or warrant the security of any information you transmit to, or store with, Jobvite, and you do so at your own risk. In the event that Jobvite becomes aware of a breach of the security of your data, Jobvite will notify you within the time period required by applicable law in the form, and according to the procedure, determined by Jobvite.

3.2 Customer Data. Customer owns all right, title and interest in the Customer Data (as defined below). Customer hereby grants Jobvite a non-exclusive, worldwide, royalty-free, transferable, sublicensable right and license to collect, access, use, process, transmit, and store the Customer Data for the purpose of performing its obligations under the Agreement and for purposes of improving its products and services. In addition, Customer grants Jobvite the right to aggregate the Customer Data with data collected from other Jobvite customers. Such aggregated data may be used by Jobvite for the purpose of improving, supporting, operating, and marketing its products, services, and software provided, however, that Jobvite will not disclose aggregated data that can reasonably be used to identify Customer. “Customer Data” means data owned or controlled by Customer that is provided, submitted, or collected through the Products. For the avoidance of doubt, Jobvite is the owner of all data derived from the Candidate Data (defined below), whether or not aggregated with other data. All Candidate Data will be treated in accordance with the Jobvite Privacy Policy, available at https://www.jobvite.com/privacy-policy. “Candidate Data” means information about people submitted to Customer through the Products.

4. Confidentiality

“Confidential Information” means all information disclosed by either party (“Disclosing Party”) to the other (“Receiving Party”), whether in writing, orally, or by any other means, that is identified as confidential at the time of disclosure, or that should be reasonably identified by the Receiving Party as confidential. Confidential Information may include, without limitation, technical information, business and financial information, plans and strategies, marketing and sales information, and/or customer data. Confidential Information expressly includes Jobvite’s technology, including the Products, Software, algorithms, code, processes, product documentation, and other technical information. Confidential Information does not include any information that: (a) is or becomes publicly available without breach of this Agreement by the Receiving Party; (b) can be shown by written documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (c) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or (d) can be shown by written documentation to have been independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party.

Each party, as Receiving Party, agrees to: (a) hold the Confidential Information of the Disclosing Party in confidence; (b) use the same degree of care to protect the confidentiality of the Confidential Information as it uses for its own confidential information, but no less than a reasonable degree of care; (c) use the Confidential Information solely for the purpose of performing its obligations under the Agreement; (d) not disclose the Confidential Information to any third party, except to employees and contractors of the Receiving Party on a need-to-know basis and under written nondisclosure obligations at least as protective as this Agreement; and (e) immediately notify the Disclosing Party of any unauthorized disclosure, loss, or use, provided that the Receiving Party shall remain responsible for its employees’ and contractors’ acts and omissions. The obligations under this Section 4 shall survive any termination or expiration of the Agreement for a period of three years.

5. Fees, Payment Terms and Billing

5.1 Fees. Customer agrees to pay Jobvite the fees set forth in the Order Form(s) (“Fees”). Customer will pay Jobvite the Fees set forth in the applicable Order Form upon execution of such Order Form, unless other payment terms are specified in the Order Form. The fees for Professional Services (as defined below), if any, will be set forth in an Order Form or statement of work. Each Order Form and statement of work shall incorporate this Agreement by reference.

5.2 Invoicing and Payment. Unless otherwise specified in an Order Form, Jobvite will invoice Customer in advance for all Fees. All invoices are due and payable within thirty (30) days after the invoice date. Customer is responsible for providing accurate and complete billing information to Jobvite and for notifying Jobvite of any changes to such information. Unless otherwise agreed between the parties in writing, all payment obligations are non-cancellable and non-refundable.

5.3 Taxes. The Fees stated in the applicable Order Form do not include any local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature. Customer is responsible for paying all such taxes, levies, duties, and assessments associated with Customer’s purchases under this Agreement, excluding any taxes based on Jobvite’s net income or payroll. If Jobvite has the legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Jobvite with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Late Payment. If Customer fails to make any payment when due, without limiting Jobvite’s other rights and remedies: (a) Jobvite may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Jobvite for all reasonable costs incurred by Jobvite in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days or more, Jobvite may suspend access to the Products until Customer’s payment obligations are brought current.

6. Term and Termination

6.1 Term. The term of this Agreement commences on the date Customer first accepts this Agreement by executing or clicking to accept an Order Form and continues for so long as any Order Form is in effect (“Term”). The subscription term for the Products shall be as stated in the applicable Order Form (“Subscription Term”). The Subscription Term shall automatically renew for subsequent periods of the same length as the initial Subscription Term, unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current Subscription Term.

6.2 Termination. Either party may terminate this Agreement and any Order Form(s) upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party describing the breach. In addition, either party may terminate this Agreement immediately upon written notice if the other party: (a) becomes insolvent or generally unable to pay its debts as they become due; (b) files or has filed against it a petition in bankruptcy or seeking reorganization; (c) makes an assignment for the benefit of creditors; (d) seeks or consents to the appointment of a receiver, trustee, or similar official to take possession of its property or business; or (e) has a receiver, trustee, or similar official take possession of any substantial portion of its property or business.

6.3 Effect of Termination. Upon any termination or expiration of this Agreement: (a) Customer’s access to the Products will immediately terminate; (b) Customer shall pay Jobvite all fees that have accrued through the date of termination, including, without limitation, fees for Professional Services rendered prior to the termination date; (c) each party shall destroy or return all Confidential Information of the other party in its possession; and (d) the following Sections shall survive: Section 2.2 (Restrictions), Section 3.2 (Customer Data), Section 4 (Confidentiality), Section 5 (Fees, Payment Terms and Billing), this Section 6.3, Section 7 (Warranties and Disclaimers), Section 8 (Limitation of Liability), Section 9 (Indemnification), and Section 10 (General).

7. Warranties and Disclaimers

7.1 Mutual Warranties. Each party represents and warrants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder; and (b) its performance under this Agreement shall comply with all applicable laws, rules, and regulations.

7.2 Jobvite Warranties. Jobvite represents and warrants that during the Subscription Term, (a) the Products will perform materially in accordance with any applicable product documentation provided by Jobvite and (b) any Professional Services shall be performed in a workmanlike manner by qualified personnel in accordance with industry standards. If Customer believes Jobvite has breached the foregoing warranties, Customer shall notify Jobvite in writing, and Jobvite shall use commercially reasonable efforts to re-perform any non-conforming Services or to correct any material non-conformance in the Products. If Jobvite is unable to do so, Customer’s sole and exclusive remedy shall be to terminate the affected Order Form and receive a refund of any prepaid fees for the unexpired portion of the Subscription Term.

7.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE PRODUCTS AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND JOBVITE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. JOBVITE DOES NOT WARRANT THAT THE USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES JOBVITE WARRANT THAT IT WILL REVIEW ANY DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY DATA WITHOUT LOSS. JOBVITE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF JOBVITE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8. Limitation of Liability

8.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

8.2 Limitation on Amount of Liability. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS AND EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO JOBVITE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

9. Indemnification

9.1 Jobvite Indemnification. Jobvite shall defend, indemnify, and hold harmless Customer from and against any claim, suit, or proceeding arising from a third party allegation that Customer’s use of the Products as permitted under this Agreement infringes any third party intellectual property right, and Jobvite shall pay any damages or costs finally awarded against Customer (or amounts paid by Jobvite in settlement of such claim). The foregoing obligations shall not apply if the claim arises from: (a) Customer’s breach of this Agreement; (b) Customer’s combination of the Products with non-Jobvite products, data, or processes, including any Customer data; (c) Customer’s modification of the Products; or (d) Customer’s failure to use updates or corrections made available by Jobvite.

9.2 Customer Indemnification. Customer shall defend, indemnify, and hold harmless Jobvite from and against any claim, suit, or proceeding arising from: (a) Customer’s breach of this Agreement or its representations and warranties herein; (b) Customer’s use of the Products in violation of applicable law; (c) Customer data or any third party allegation that Customer data or Customer’s use of the Products in violation of this Agreement infringes or misappropriates a third party’s intellectual property rights or privacy rights; or (d) a dispute between Customer and any third party concerning Customer data or Customer’s use of the Products. Customer shall pay any damages or costs finally awarded against Jobvite (or amounts paid by Customer in settlement of such claim).

9.3 Indemnification Process. The indemnifying party’s obligations are conditioned on the indemnified party: (a) giving prompt written notice of the claim to the indemnifying party; (b) granting the indemnifying party sole control of the defense and settlement of the claim; and (c) providing reasonable assistance to the indemnifying party, at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Products, when Jobvite is the indemnifying party). The indemnified party may participate in the defense at its own expense.

10. General

10.1 Governing Law. This Agreement is governed by the laws of the State of California, USA, excluding its conflict of laws rules. All disputes related to this Agreement will be brought solely in the federal or state courts located in San Francisco County, California, and the parties consent to exclusive jurisdiction and venue in such courts.

10.2 Modifications to these Terms and Conditions. Jobvite may modify these Terms and Conditions from time to time in its sole discretion. Any modifications will be effective immediately and will apply to the Products once posted. Customer’s continued access to or use of the Products following any such posting constitutes Customer’s consent to be bound by the modified Terms and Conditions. If Customer does not agree to the modified Terms and Conditions, Customer must stop using the Products.

10.3 No Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without the consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

10.4 No Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

10.5 Severability. If any provision of this Agreement is found to be unenforceable or invalid, 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.

10.6 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer’s purchase orders are for administrative purposes only and the terms and conditions of any purchase order will have no effect on the rights, duties, or obligations of the parties under this Agreement.

10.7 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet (not resulting from the actions or inactions of such party), provided that the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

10.8 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

10.9 Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices to Jobvite shall be sent to 116 New Montgomery Street, Suite 300, San Francisco, California, 94105, Attention: Legal Department. Notices to Customer shall be sent to the address specified in the applicable Order Form.

10.10 Export Compliance. Both parties shall comply with all applicable import and export control laws and regulations in connection with the performance of this Agreement. Customer acknowledges and agrees that the Products, or a portion thereof, are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws. Customer shall not access or use the Products if Customer is: (a) located in, or a national or resident of, Cuba, Iran, North Korea, Sudan, Syria, or any country or region subject to government sanction; or (b) on any government restricted party list.

10.11 Government Users. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in 48 C.F.R. Section 52.227-19. The Products and Documentation provided hereunder are “Commercial Items” as defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Computer Software Documentation.” For all federal government and federal government contractor end users, the Products and Documentation are licensed only with rights as granted to all other end users pursuant to the terms and conditions contained herein.

v: 2016