1. Scope of this Agreement
2. Right to Access Services
Subject to the terms and conditions of this Agreement, JMM grants to Customer for the Term a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right to access and use the Services for Customer’s internal use solely for recruiting, market research, advisory, and human capital related consulting purposes
2.2. Acceptable Use and Compliance with Laws
Customer shall use the Services, and ensure its employees, contractors, affiliates, or other personnel to which it gives access to the Services (“Users”) use the Services in compliance with this Agreement and all applicable laws and regulations, including without limitation all data protection and privacy laws. Customer shall be liable to JMM for any claims, fines or damages arising from its and its User’s failure to comply with the foregoing.
Customer shall comply with all laws and governmental regulations applicable to its business and its use of the data retrieved from the Services, including without limitation all data protection and privacy laws, and any use Customer may make of the Services (including any reports, analytics, or assessments produced in connection therewith).
JMM shall comply with all laws and government regulations applicable to its business and the Services.
2.3. User Access to Services.
Customer is responsible for all activity occurring under its User accounts. Customer will maintain the accuracy, completeness, and timeliness of the information provided during the Term including billing information, contact information, and number of User licenses. Unless otherwise specified in the applicable Order Form, access to the Services by Users is pursuant to a “Named User” model, pursuant to which (i) Customer licenses Services for the number of Users identified on an Order Form for the Term identified on an Order Form, (ii) User subscriptions are for designated Users and cannot be shared or used by more than one User, (iii) a User’s password may not be shared with any other individual and (iv) Customer may not reassign current User licenses to new Users except to the extent a current User is no longer employed by Customer.
2.4. Copyrights and Trademarks
All parts of Services are the property of JMM and/or its affiliates. Job Market Maker, the Job Market Maker logo, ENGAGE Talent, ENGAGE, and the ENGAGE logo and other items marked as such are trademarks and service marks of Job Market Maker. All other trademarks, service marks, and logos used as part of the Services, if any, are the trademarks, service marks, or logos of their respective owners.
2.5. Third Party Websites, Data, or Services
The Services may contain links to or data obtained from third-party websites or services. JMM is not responsible or liable for the accuracy legality, quality, integrity, fitness, reliability, or availability of data and content provided by other providers, including those that have links from the Services. Accordingly, JMM makes no representation concerning the content of any third-party sites or data to Customer nor does the fact that there is a link on the Services serve as an endorsement, approval, or recommendation of the linked site or its data and these links are provided only as a convenience.
2.6. Customer Data and License
Customer may post, upload, submit, provide, or transmit its content or data to the Services in any form or medium (e.g., text, documents, images, audio content, video content, logos, brand names, trademarks, etc.) including information, content and/or material associated with job openings, job descriptions, candidate requirements, or Customer (collectively, the “Customer Data”). Customer hereby grants to JMM a non-exclusive limited term and fully paid-up license to host, store, copy, display and transmit Customer Data that JMM receives from Customer for the limited purposes of (i) fulfilling the requirements of this Agreement and operation of the Services pursuant to its documentation, (ii) statistical reporting purposes in aggregated, anonymized, and de-identified form, or (iii) to improve and enhance the Services and features that JMM offers.
2.7. Restrictions and Prohibited Use
Customer shall not (a) make the Services available to, or use the Services for the benefit of, any third party other than Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) permit any third party to access the Services except as permitted herein or in an Order Form, (h) create derivative works based on the Services, (i) copy the Services or any part, feature, function or user interface thereof, (j) frame or mirror any part of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (k) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services, (l) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Services or any related documentation (which shall include displaying the “Powered By Job Market Maker” logo) and link on any Customer pages that contain data from, or access, the Service, (m) attempt to access the accounts or data of any other customer, or (n) access the Services in order to (i) build a competitive product or service, (ii) copy any features, functions or graphics of the Services or (iii) for the purposes of monitoring availability, performance or functionality or for any other benchmarking purposes. For purposes of this Agreement, “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, Trojan horses.
3. Fees, Payment Terms and Billing
Customer will pay JMM the Fees as set forth on the Order Form. Fees are invoiced in advance of the delivery of services at the frequency identified in the Order Form. The first invoice may also include any Setup or one-time Fees. Customer shall pay all sales, use, value added or other taxes imposed by applicable law. All Fees are non-cancelable and non-refundable.
Unpaid amounts may be assessed a late fee of 2% per month, or the maximum rate permitted by law. JMM may suspend access to Services if Customer fails to make any payments when due; Fees will continue to accrue during such suspension and will be due when Services resume along with any applicable reactivation Fee.
4. Term and Termination
This Agreement will commence on the later of the Effective Date on the Order Form (if applicable), or the date of first invoice. The term of this Agreement will start on the later of the Service Start Date on the Order Form (if applicable) or the date of first invoice. Unless otherwise documented on the Order Form (if applicable), Renewal Terms of equal duration will start upon the end of the previous Subscription Term (Initial or Renewal as applicable) until either party gives written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Term, or the Agreement is terminated as set forth herein.
4.2. Termination for Cause
Either party may terminate this Agreement for a material breach that is not cured within thirty (30) days of notice of such breach (10 days for non-payment).
4.3. Events upon Termination
Upon termination of this Agreement for any reason: (a) JMM will immediately terminate Customer access (b) each party will promptly cease all use and return or destroy the other’s Confidential Information, (c) Customer will cease use of the Services and pay in full all Fees due upon termination, and (d) if Customer requests, in writing, within thirty (30) days JMM will make available a copy of the information contained in Customer’s account provided that all outstanding Fees have been paid. After such 30-day period, JMM shall have no obligation to preserve or provide Customer with any information contained in Customer’s account except as may be required under applicable law. Sections 4.3 through 13 and all accrued rights to payments shall survive termination of this Agreement.
5. System Security and Data Privacy
5.1. Authorized Users and Passwords
All access to the Services shall be through a logon and password to a User that has a defined role within the Services. Customer is solely responsible for selecting secure passwords, changing passwords frequently, and maintaining the confidentiality of its logon and passwords. JMM shall not be liable for any losses arising from unauthorized access to the Services and Customer’s account due to Customer’s failure to protect its account through proper maintenance of its logon and passwords. It is the Customer’s responsibility to ensure that logon and password information is not shared between Users or with any other third parties.
5.2. Data Protection
JMM will maintain commercially standard security measures for the protection of Customer’s account against accidental or unauthorized access or use. Customer is responsible for notifying JMM of any such unauthorized access to its account. JMM shall take all reasonable steps to prevent or correct any unauthorized access or intrusion into Customer’s account. JMM’s liability for a failure of its security measures shall be to correct the circumstances that lead to the failure or unauthorized access, prevent further intrusions, and use its best efforts to recover any information copied or removed from Customer’s account. This section sets forth the exclusive remedy of Customer against JMM for data protection.
JMM shall comply with its direct obligations under the California Consumer Privacy Act or other similar state laws regarding privacy and data protection (“Data Privacy Laws”). JMM shall comply with any reasonable written instructions related to Customer’s compliance obligation under Data Privacy Laws, including limitations on sharing, or requirements related to deletion, of personal information. Further, JMM shall process or otherwise use personal information provided under this Agreement solely as necessary to carry out its obligations under this Agreement, including for internal review, analysis, management support, and improvement of the services it provides under this Agreement, or as otherwise reasonably instructed by Customer in writing.
Any personal information (as defined by the Data Privacy Laws) provided by a party to the other party under this Agreement is provided solely for the purpose of facilitating the exchange of Services under the Agreement and is not based on receipt of consideration from the other party.
6. Confidential Information / Intellectual Property
6.1. Confidential Information
JMM and Customer acknowledge that during the performance of the Agreement they will have access to certain non-public information of the other party or of third parties that is designated as or should reasonably be understood to be confidential or proprietary (“Confidential Information”).
Customer’s Confidential Information includes information provided on the Order Form and Customer Data.
JMM’s Confidential Information includes the Services; this Agreement; any prices, price structure, or discounts; service scope definitions; technical or functional documentation; identities of its customers, vendors, partners, and personnel; and any technology used within the Services. Any ideas, suggestions, support requests, or feedback related to the Services, or improvements, corrections, or modifications provided by the Customer to JMM are deemed the Confidential Information of JMM.
Confidential Information does not include (i) information previously known to or independently developed by the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) JMM’s use of information under term (2.5), (iv) aggregated or anonymized information containing no Customer, User, or other personal identifying data, or (v) information received from a third party under no confidentiality obligation with respect to the Confidential Information.
6.3 Protection of Confidential Information. Except as otherwise permitted in writing by the party disclosing Confidential Information (the “Disclosing Party”) the party receiving the Confidential Information (the “Receiving Party”) shall, (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.5. Intellectual Property
Title to, and all Intellectual Property Rights in, the Services, including JMM Confidential Information in any complete or partial form are retained by JMM or its Licensors. As used herein, “Intellectual Property Rights” means any and all right, title, and interest, including patent applications, patents, copyrights, moral rights, database rights, trademarks, service marks, trade names, or trade secrets, and any and all other intellectual property or proprietary rights recognized or enforceable under any United States federal or state law, rule, or regulation, foreign law, rule, or regulation, or international treaty.
7. Warranties; Disclaimers
THE SUBSCRIPTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, (II) NO WARRANTY IS GIVEN THAT THE SUBSCRIPTION WILL BE UNINTERRUPTED OR FREE OF OMISSIONS, ERRORS, OR DEFECTS, OR THAT ALL ERRORS SHALL OR CAN BE CORRECTED, AND (III) JMM AND ITS LICENSORS EXPRESSLY DISCLAIM ALL CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS, AND/OR NON-INFRINGEMENT. ANY USE OF THE SUBSCRIPTION IS AT SUBSCRIBER’S OWN RISK.
CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE DELIVERED AS SOFTWARE AS A SERVICE WITH MULTIPLE RELEASES PER YEAR. ACCORDINGLY, JMM MAY UPDATE THE SERVICES FROM TIME TO TIME, AND AS A RESULT OF SUCH UPDATES SPECIFIC FEATURES, FUNCTIONS, OR OTHER COMPONENTS OF THE PRODUCT MAY BE ADDED, ENHANCED, MODIFIED, IMPROVED, SUBSTITUTED, DISCONTINUED, OR OTHERWISE CHANGED AS FURTHER SET FORTH IN THE RELEASE NOTES OF ANY GIVEN VERSION OF THE PRODUCT.
8. Limitation of Liability
IN NO EVENT SHALL JMM BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED SERVICES, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF THE SERVICES PROVIDED HEREUNDER, EVEN IF JMM HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL JMM’S MAXIMUM CUMULATIVE LIABILITY REGARDLESS OF THE FORMS OF ACTION WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM FOR THE SERVICES IN QUESTION FOR THE MOST RECENT TWELVE (12) MONTHS PRIOR TO THE TIME SUCH LIABIITY AROSE. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
9.1 Infringement Indemnity.
JMM will indemnify, defend, and hold harmless the Customer in connection with any third party claim against the Customer alleging that the use of the Services used in accordance with this Agreement infringe an issued and enforceable patent or copyright of any third party enforceable in the United States (a “Claim”) and pay all damages, costs, expenses (including reasonable attorneys’ fees) attributed to such Claim and finally awarded against Customer, or that are included in a settlement approved by JMM arising out of the Claim. . This obligation is contingent upon: (i) Customer’s prompt written notification to JMM of the Claim; (ii) Customer’s tender to JMM of the case and settlement negotiations; (iii) JMM’s sole control of the defense and settlement negotiations related to the Claim; (iv) Customer’s assistance (at JMM’s expense) in the defense or settlement of the Claim; and (v) Customer refraining from making any admission prejudicial to the defense of the Claim. In addition to the above indemnity, if the Services are held to be infringing, are accused of infringing, or where JMM believes they may be infringing, JMM may at its expense and option: (1) obtain for Customer the right to continue using such Services; (2) modify or replace such Services with non-infringing Services; or (3) if JMM determines that such remedies are not commercially reasonable, Customer shall immediately cease accessing the Services, and this Agreement and any Order Form shall immediately terminate, and JMM will return a portion of the Subscription Fee paid for the Services, as prorated over the length of the Term. The above indemnification obligations do not apply to the extent a Claim arises from Customer’s: (i) breach of this Agreement, (ii) unauthorized modification of the Services or (iii) combination of the Services with products, software or services not provided by JMM.
9.2 Exclusive Remedies
The remedies stated in this Article 9.1 of this Agreement are the sole and exclusive remedies of Customer with respect to any claims for infringement related to the Services.
9.3 Customer Indemnification
Customer shall defend, indemnify and hold harmless JMM, its affiliates and their respective officers, directors, employees, agents, and representatives (collectively, “Indemnified Parties”) from and against all claims, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnified Parties arising out of (i) Customer use of the Services, including without limitation, any claims arising from Section 2.2 of this Agreement; (ii) the use of or access to the Services by individuals or entities that are not authorized by the Agreement; or (iii) use of the Services by Customer, its affiliates or Users thereof in a manner that is not permitted under this Agreement; or (iv) any claims that the Customer Data infringes, misappropriates, or otherwise violates the intellectual property rights or other rights of a third party.
9.4 Indemnification Procedures
To receive the indemnities contained in this Article 9, the Party seeking indemnification shall promptly give the indemnifying Party written notice of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying part all reasonable assistance, at the indemnifying party’s expense.
JMM may use Customer’s name and logo to identify Customer as a JMM customer on its websites and as a part of a list of customers in corporate, promotional and marketing literature.
10.2. Export Control
Customer shall only use the Services in compliance with local laws and regulations, and will not export or re-export the Services in violation of any United States or other applicable export laws and regulations.
Customer represents that (i) it (including Customer’s Users) is not named on any U.S. government denied-party list, and (ii) Customer shall not permit Users to access or use Services in any U.S.-embargoed country or in violation of any U.S. export law, or regulations.
10.3. Relationship of Parties
The parties to this Agreement are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or to incur any obligation on its behalf.
Neither party will transfer or assign this Agreement or any of the rights hereunder without the prior written approval of the other party, which shall not be withheld unreasonably. Notwithstanding the foregoing: (i) JMM may transfer this Agreement in its entirety in the event of an acquisition, merger, sale or transfer of all or substantially all of its interest including equity ownership interest or other event involving a change of control, may assign any rights to payment hereunder, and may use service providers to fulfill its obligations hereunder; (ii) Customer may transfer this Agreement in its entirety in the event of an acquisition, merger or other event involving a change of control; provided that the other entity involved in such event is not a competitor of JMM, and provided that the Fees may be subject to recalculation as set forth in the Order Form.
Notices required hereunder shall be effective if delivered by email or courier or delivery service (effective upon receipt), or by first call United States mail, return receipt requested (effective upon receipt), and shall be sent to the addresses shown in the Order Form or as updated by notice.
10.6. Force Majeure
Neither party shall be responsible for a failure or delay of performance caused by any event outside of its reasonable control.
11. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, exclusive of its choice of law rules. Each party to this Agreement submits to the exclusive jurisdiction of the state and federal courts sitting in the County of Charleston in the State of South Carolina, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees.
12. Entire Agreement, Waiver and Severability
This Agreement constitute the entire agreement between JMM and the Customer pertaining to the subject matter hereof, and supersedes all prior or contemporaneous agreements, representations, service proposals, or arrangements, oral or written.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
These Subscription Terms and Conditions were last modified and posted on 07/09/20.