Version 1
Effective: February 1, 2021
A. “Authorized User” is as defined in Section 4(A) below.
B. “Agreement” means collectively, the Order Form, these Terms and the attachments/links included within these Terms.
C. “Client” is as designated on the Order Form.
D. “Documentation” means all published specifications, user guides and reference manuals regarding the Services or the SaaS Solution provided to Client by Company from time to time (exclusive of sales and marketing materials).
E. “Effective Date” means the effective date as specified on the Order Form.
F. “Implementation Services” means the implementation services (if any) specified in the applicable Order Form necessary to implement and configure Client’s account on the Subscription Service and corresponding Materials.
G. “Materials” means certain reports, information and materials that are generated, provided or made available to Client under license as part of the Services. If included, such Materials will be specified in the Order Form.
H. “Order Form” means the statement(s) of work or order form(s), as applicable, executed by the Client and the Company detailing the Services to be provided by the Company.
I. “Services” means collectively, the Subscription Services and Implementation Services.
J. “Subscription Service(s)” means access to the applicable SaaS Solutions (including any updated versions of the SaaS Solution provided by Company as part of general maintenance), such other subscription services as may be designated on the Order Form, in the Documentation or corresponding Materials.
K. “Subscription Term” means, the initial Subscription Term and subsequent renewal periods as specified in the applicable Order Form.
L. “Talent Management Activities” means Client’s activities, policies, practices, decisions and actions related to its talent selection, acquisition, promotion and management.
A. Subject to the terms and conditions set forth in the Agreement, Company will provide the Client with the Services detailed on the Order Form. As necessary to receive the Services hereunder, Company grants to Client a personal (to Client and its Authorized Users), non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable and limited subscription to remotely access and use the Subscription Services, and a right to use the Documentation and Materials, in each case for the applicable Subscription Term solely for Client’s internal business operations in furtherance of Client’s Talent Management Activities and in accordance with the terms and conditions set forth in the Agreement (the “Subscription”).
B. The Subscription Services shall meet the Service Levels available set forth on the Service Level Agreement which is incorporated into and made a part of these Terms and is available here.
C. All rights not expressly granted by Company to Client under these Terms are reserved to and retained by Company. Client agrees that all right, title and interest in and to the Services, SaaS Solution(s), Documentation, and Materials are owned exclusively by Company. These Terms grant a Subscription as described herein and except for the limited rights expressly granted herein, no other rights are granted and no other use permitted. This Agreement is not a sale and does not assign, transfer or convey to Client or any Authorized User any rights of ownership or any intellectual property rights or any other rights or licenses (except as expressly set out in these Terms) in or related to the Services, SaaS Solution(s), Materials or Documentation. Notwithstanding anything herein to the contrary, the Agreement does not assign, transfer or convey to Client or any Authorized User any right, title or interest of any kind in or to any Company background intellectual property. Company shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client, any Authorized User or otherwise relating to the Services.
D. Company agrees that (as between the parties) all right, title and interest in and to Client’s trademarks, copyrights, patents, tradenames and logos (collectively, “Client Marks”) and all Client Data (as defined in Section 5A below) are owned exclusively by Client. All rights in and to the Client Marks not expressly granted by Client to Company under these Terms are reserved to and retained by Client. If required to provide the Services, Client hereby grants to Company a non-exclusive, royalty-free, fully paid up, non-transferable and revocable license to reproduce, display and use Client Marks as necessary to provide the Services. In addition, as additional consideration for the Services, Company may reference Client (by name and use of Client’s corporate logo) on Company’s website and in its promotional and marketing materials and activities.
A. The fees (the “Fees”), invoice and payment schedule for Services are as set forth in the Order Form. If not specified on an Order Form, invoicing is annual in advance and payment terms are within 30 days of the invoice date. Save as provided for in Section 6(A)(iii), Fees are non-refundable. In addition to the Fees, Client will reimburse Company for any documented expenses (e.g., travel) incurred in the provision of Services, payable within 30 days of the invoice date. Interest may be charged on unpaid amounts at the rate of 1.5% per month or the highest rate permitted by applicable law (if lower) until the date paid. Any invoice questions or concerns shall be raised by Client in writing within thirty (30) days of receipt of an invoice, including sufficient details for Company to understand the concern. Failure to timely notify shall be a waiver of any fee dispute.
A. The Subscription extends to (i) Client, (ii) Client’s employees who are authorized by Client to access and/or use the Services on behalf of Client in furtherance of Client’s Talent Management Activities; and (iii) subject to any scope and parameter of use limitations set forth in the Order Form, applicants/candidates for employment who are invited or authorized by Client to access the Subscription Services and/or complete a SaaS Solution by utilizing an access link or other access authorization provided by Client (or by Company on Client’s behalf) ((ii) and (iii) collectively, “Authorized Users”).
B. Client warrants that it will: (i) be responsible for obtaining and maintaining web-enabled devices and internet connectivity as necessary to access the Subscription Services; (ii) access and use the Subscription Services in accordance with and subject to the terms of the Agreement (including any scope and parameter limitations set forth on the applicable Order Form), the Documentation, the Materials and in compliance with applicable law; (iii) be solely responsible for its use of the Services and Materials and for its Talent Management Activities and related legal compliance; (iv) be responsible for any configuration of the Services, SaaS Solutions or Materials selected or designated by Client (e.g., Client-selected content, scoring bands, scoring scales, cut scores, advancement criteria); and (v) if an Order Form limits use to a specific Client job family, be responsible and liable for evaluating and determining if the Subscription Services are job-related for the applicable job family and for ensuring the candidates accessing the Subscription Services are applying for job roles that align with the specified job family (collectively, “Use Obligations”).
C. Neither Client nor its Authorized Users shall, nor permit any third party to, do or attempt to do any of the following with respect to or in connection with the Services, Documentation or Materials: (i) distribute, disclose, copy, duplicate, download or otherwise disseminate or make available to any third party; (ii) breach the use rights granted herein or attempt to license, sublicense, sell, resell, transfer, assign, loan, encumber or otherwise commercially exploit; (iii) modify, adapt or alter the physical or electronic characteristics or attempt to gain unauthorized access; (iv) translate, reverse engineer, dismantle, decompile, disassemble, or attempt to reconstruct, derive or intrude into any Company intellectual property underlying or deployed in connection with provision of the Services; (v) misuse by sending spam or any other form of duplicative or unsolicited messages, or transmitting material containing software viruses or other harmful or deleterious code, files, scripts, agents or programs or which is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or otherwise illegal or causes damage to person or property; (vi) modify or create derivative works from or republish any part of the Services or Documentation (in any form or media); (vii) remove, obscure, or alter any proprietary rights notice or add any other notices or markings; (viii) incorporate, merge, combine or integrate any part thereof into any other product, software, interface, process or service, including without limitation creating “links” to or from the Services, or by “framing” or “mirroring” any content from the Services or Materials; (ix) access or use to build a competitive product or service or otherwise to the detriment of Company or its business; or (x) use in a manner which infringes or violates any intellectual property, proprietary, or other rights of Company or of any third party or violates applicable law (collectively, the “Use Restrictions”). These obligations will survive termination or expiration of this Agreement. The parties agree that Client’s actual, alleged or threatened breach of the Use Restrictions or Use Obligations will give Company the right to seek to obtain equitable relief and pursue all other remedies Company may have available at law or in equity.
A. Any information input by an Authorized User into the Services, including information that personally identifies or can be used to personally identify any individual Authorized User (“Client Personal Data”), the Client Marks, and other of Client’s non-public or proprietary information or materials designated in writing by Client as confidential (collectively, “Client Data”) are Client’s property, and as between Company and Client, Client owns all Client Data. Company will take commercially reasonable steps to protect against the destruction, loss and unauthorized access, use, possession or alteration of Client Data in Company’s possession or control by complying with the applicable Data Protection Addendum. Client acknowledges that Client Data is not hosted or stored on servers located at Company facilities, and Client authorizes Company to use a third-party cloud-based web hosting solution(s) to host and store such Client Data. Client grants Company the unrestricted right to use Client Data in connection with performance of Services. Company may de-identify or anonymize Client Data (including Client Personal Data) and thereafter may aggregate, integrate, enhance, combine and/or modify such de-identified or anonymized data into anonymous, collective data (“Aggregated Data”), and such Aggregated Data shall be owned exclusively by Company and be deemed Company’s Confidential Information. Client warrants that it owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with the Agreement, such activities do not and will not be in violation of applicable law or result in infringement, misappropriation or violation of any intellectual property rights of any third party.
B. Client acknowledges that, while Company maintains appropriate security and privacy protections, use of the Services does not contemplate the following categories of information and the storage of such information is prohibited: (a) credit card or other financial information; (b) Social Security Numbers; (c) Driver’s License Numbers; (d) dates of birth; (e) Protected Health Information as that term is defined in the HIPAA/HITECH regulations or similar state regulations; and (f) other special categories of data other than those incidentally gathered by provision or use of the Services (e.g., gathered by video, such as race/gender) (“Prohibited Data”). Client shall not provide any Prohibited Data or process any Prohibited Data through the Services. Client is solely responsible for reviewing all Client Data and shall ensure that no Client Data constitutes or contains any Prohibited Data. Furthermore, Company is a mere conduit in the facilitation of data for Client and, as such, other than providing appropriate privacy and security safeguards, shall have no liability for the data input into the Services.
C. For the purposes of the Terms, “Confidential Information” means the terms of the Agreement and all non-public proprietary or confidential information of one party that is provided or made accessible to the other party in connection with the Agreement, but shall not include any information that is: (i) publicly available; (ii) already in the other party’s possession at the time of disclosure and not subject to a confidentiality obligation; (iii) obtained by the other party from any source without any obligation of confidentiality; (iv) independently developed by the other party without use of or reference to the disclosing party’s Confidential Information; or (v) required to be disclosed by order of a court or other governmental entity (but only for the disclosure required by such court order or governmental entity), provided that subject to applicable law, prompt notice shall be given to the party owning such Confidential Information so that such party may obtain a protective order, injunctive relief or other equitable relief.
Each party agrees: (1) not to use or disclose Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under the Agreement or as directed by the disclosing party, (2) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (3) to make Confidential Information available to authorized persons only on a “need to know” basis. Company may disclose Client Confidential Information on a need-to-know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of Services under the Agreement.
D. Company will store Client Data and Materials during the applicable Subscription Term for two (2) years from the date of initial storage (or such longer period as may be specified in an individual Order Form, as required by applicable law, or to satisfy current or future legal rights) after which period Company may delete it in accordance with Company’s data retention policies. Upon termination or expiration of the Agreement, Company shall have no obligation to store Client Data or Materials, provided that any Client Data or Materials which are not returned or destroyed shall continue to be subject to Company’s obligation to protect the confidentiality under Section 5C above and to secure such Client Data until returned or destroyed. Client may obtain a copy of Client Data generated from use of the interview technology SaaS Solution by extracting such Client Data by using Company’s application API (which is standard functionality of the Subscription Service) or through an alternate method as may be documented upon such terms (and for such fee) as mutually agreed.
A. In the event Client’s authorized use of Services is restricted as a result of court order, either temporarily or permanently, at any time during the Subscription Term as a result of any actual or alleged claim brought by a third party that such use infringes, violation or misappropriation of such third party’s intellectual property rights (an “Infringement Claim”), then Company will, at its sole option and expense: (i) obtain for Client the right to continue receiving the Services, or (ii) replace or modify the impacted Services so they are non-infringing without any material loss of functionality or degradation of usability or performance; or (iii) if neither (i) nor (ii) are commercially feasible, terminate the outstanding Order Forms that are impacted by such Infringement Claims and refund any pre-paid but unused Fees.
In addition to the foregoing, Company agrees to indemnify, defend and hold Client and its affiliates, and their respective officers, directors, employees, agents, successors and permitted assigns harmless from and against any third-party claims, suits, actions, proceedings or demands and judgments, and resulting losses, payments, liabilities, fines, settlements, penalties, damages, costs, and expenses actually incurred (including reasonable legal fees) arising from or relating to an Infringement Claim. THE FOREGOING STATES COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND CLIENT’S SOLE AND EXCLUSIVE RIGHTS AND REMEDY WITH RESPECT TO INFRINGEMENT CLAIMS. Notwithstanding the foregoing, Company will have no liability or obligation under this Section in the event any Infringement Claim arises from Client and/or its Authorized Users’ unauthorized access to or use of the Services, access or use of the Services in combination with any third-party software or systems where the Infringement Claim would not be valid but for such combination, access or use of Services in violation of the Agreement or other breach or violation of the Agreement.
B. Company warrants that (i) it has full authority to enter into this Agreement and perform its obligations hereunder; and (ii) during the Subscription Term, the Services will conform in all material respects to these Terms, the Documentation and the Order Form. If Client believes Company has breached this warranty, Client must promptly notify Company of the same in writing. As Company’s sole obligation and Client’s sole and exclusive remedy for any breach of the foregoing warranty, Company will (if reasonably practicable) repair or replace the applicable Services to address such material non-compliance within 45 days after receipt of notice from Client. Company will have no warranty obligation under Section 6B(ii) above to the extent that: (1) any non-conformity is not material or cannot be reproduced in the course of evaluation; (2) any non-conformity arises due to reasons outside the control of Company, including without limitation the use or operation of any Third-Party Systems (as defined below); or (3) any non-conformity results from Client’s violation of the Agreement. In the event the Company is unable to repair or replace any non-compliance in accordance with this Section 6B(ii), Client shall be entitled to terminate the Agreement and Company shall refund to the Client any pre-paid Fees that have not been used as of the date of termination (it being agreed for these purposes that Fees shall be deemed to accrue on a pro rata basis).
To the extent that the Company provides integration of the Services including the SaaS Solution to third party systems (e.g., Outlook, Client’s designated Applicant Tracking System (ATS)) (“Third Party Systems”), the Company shall not be liable for the acts or omissions of such Third-Party Systems, including without limitation for:
(i) the accuracy or integrity of data provided by such Third Party Systems.
(ii) inaccurate, incorrect or incomplete translations or interpretations of data by such Third-Party Systems; and/or
(iii)any issues or losses (including data loss, security breach or service level failures) arising from such Third-Party Systems.
C. In addition to Company’s obligation to indemnify for Infringement Claims under Section 6A above, Company further agrees to indemnify, defend and hold Client and its affiliates, and their respective officers, directors (or their equivalent), employees, agents, assigns and successors-in-interest harmless from and against any third-party claims, suits, actions, proceedings, demands and judgments, and resulting losses, payments, liabilities, fines, settlements, penalties, damages, costs, and expenses actually incurred (including reasonable legal fees) (collectively, “Third Party Claims”) arising from or relating to: (i) Company’s gross negligence or willful misconduct; and (ii) an actual security breach that compromises Client Personal Data resulting from Company’s violation of its obligations under Section 5A.
D. Client warrants that: (i) it has full authority to enter into this Agreement and perform its obligations hereunder; and (ii) it and its Authorized Users will access the Subscription Service only for lawful purposes and will not violate any applicable laws or the rights of any third party in connection with use of the Services, and (iii) it owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with this Agreement, such activities do not and will not be in violation of applicable law or result in infringement, misappropriation or violation of any intellectual property rights of any third party.
E. Client agrees to indemnify, defend and hold Company and its affiliates, and their respective officers, directors (or their equivalent), employees, agents, assigns and successors-in-interest harmless from and against any Third Party Claims arising from or relating to: (i) Client’s Talent Management Activities; (ii) Client’s use of the Services and Client Personal Data; (iii) Client’s breach or violation of the Agreement, including the Use Restrictions and Use Obligations contained in these Terms.
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER “AS IS” AND CLIENT’S USE THEREOF IS AT CLIENT’S OWN RISK. CLIENT IS SOLELY RESPONSIBLE FOR ITS TALENT MANAGEMENT ACTIVITIES AND LEGAL COMPLIANCE. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUALITY. COMPANY FURTHER NEITHER WARRANTS THAT THE SERVICES WILL BE DEFECT FREE, UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES.
A. The Agreement and each party’s rights and obligations hereunder will commence on the Effective Date and will continue (unless otherwise terminated in accordance with this Agreement) until the end of the initial Subscription Term (as set forth in the Order Form) and shall thereafter automatically renew for further renewal periods as set forth on the Order Form unless either party has provided to the other written notice of the non-renewal prior to the expiry of the initial Subscription Term or any subsequent renewal period as set forth on the Order Form.
B. Either party may terminate the Agreement and the individual Order Form for cause if:
(i) the other party materially breaches any obligation, representation or warranty and fails to cure the breach within thirty (30) days (or five (5) business days in the case of non-payment of Fees) after receiving written notice of the breach from the non-breaching party; or
(ii) the other party has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the relevant party is incorporated, resident or carries on business.
In the event of termination by Company due to Client’s breach, the aggregate of all Fees due or to become due under the Order Form will be due and payable on the effective date of termination.
C. Upon termination of the Agreement or any individual Order Form, the Company will cease provision of all the Services set forth in the Order Form and the applicable Subscription will immediately and automatically terminate. Company may, in its’ sole discretion, suspend Client’s access to the Services if Client’s actions, in Company’s reasonable opinion, may pose a security breach or violation of law. Client will be obligated for payment during the period of suspension. Upon termination of the Agreement, the Client shall, at the request of the Company, return any Company intellectual property, Materials and/or Documentation in its possession or control.
D. Any provisions which by their terms extend beyond expiration or termination or which are necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of the Agreement, including without limitation, the sections on confidentiality, ownership/proprietary rights, disclaimers, limitations on liability, term and termination, and general Sections.
Notwithstanding anything to the contrary contained herein, Company’s total aggregate liability under this Agreement, whether in contract, tort, or otherwise (including any liability for any negligent act or omission and under any indemnity), for damages, losses, legal costs and other incidental costs which are not otherwise limited or excluded under this Agreement, to Client and / or to third parties claiming by or through Client is limited to the Fees paid to Company under the applicable Order Form under which such claim arose within the most recent twelve (12) months prior to the date the claim arose. IN NO EVENT WILL COMPANY BE LIABLE TO CLIENT AND / OR TO ANY THIRD PARTY CLAIMING BY OR THROUGH CLIENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES, COSTS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, ARISING UNDER ANY INDEMNITY OR UNDER ANY OTHER THEORY OF LIABILITY, RESULTING FROM PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE RIGHTS AND REMEDIES OF EACH PARTY UNDER THIS AGREEMENT CONSTITUTE A LIMITED, SOLE AND EXCLUSIVE REMEDY.
A. The Agreement: (i) constitutes the complete agreement between the parties regarding the subject matter contained herein and supersedes all prior and contemporaneous negotiations and agreements, written or oral; (ii) may be amended only by a written instrument executed by a duly authorized representative of each party and no usage of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement; (iii) is not assignable, delegable or transferable by Client except with the prior written approval of Company; (iv) is binding on and inures to the benefit of the parties and their respective successors and permitted assigns; (v) may be signed in counterparts, each of which constitutes an original and all of which together constitute one and the same instrument and a signature transmitted via facsimile, scanned and electronically transmitted, or third party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement (and each component part thereof) shall be treated as originals and shall be legally binding; and (vi) notices under this Agreement shall be delivered to Client contact at the email address as set forth in the Order Form and to the Company at legal@modernhire.com.
B. The Agreement is governed by the laws of the State of Ohio without regard to conflict of laws principles and the parties hereby consent to the jurisdiction of the courts of the State of Ohio. Any disputes arising from or related to the Agreement will first be subject to good faith discussions between executives of each party. If such disputes cannot be resolved with good faith discussions within ten (10) business days after discussions commence, then the parties agree that such disputes shall be resolved by confidential arbitration before a single arbitrator in a neutral location as mutually agreed by the parties. The governing law shall be as set forth in this Section 9B, and otherwise according to the Commercial Arbitration Rules of the American Arbitration Association. The language of the arbitration shall be English. The dispute shall be finally settled within twelve (12) months after appointment of the arbitrator. Judgment on the award rendered by the arbitrator may be enforced in any court having jurisdiction thereof. Notwithstanding anything to the contrary in this paragraph, either Party may: (i) apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory injunctive relief; (ii) seek redress in any court of competent jurisdiction in order to enforce its intellectual property rights or protect Confidential Information; or (iii) seek redress in any court of competent jurisdiction for claims relating to non-payment under this Agreement.
C. If any provision of the Agreement is determined to be invalid or unenforceable under applicable law, the provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of the Agreement shall continue in full force and effect.
D. In the event of any direct conflict between these Terms and any Order Form, these Terms will govern unless the applicable Order Form specifically states that the terms contained therein govern over or are specifically intended to modify the terms contained herein with respect to the Services covered by the Order Form. Terms, provisions or conditions on any purchase order, acknowledgement, or other pre-printed business form or writing that Client may provide to Company or use in connection with the procurement of Services will have no effect on the rights, duties or obligations of the Parties hereunder, regardless of any failure to object to such terms, provisions or conditions, and the terms of the Agreement shall govern over any conflicting terms contained in any such purchase order, acknowledgement or other form issued hereunder.
E. Company is being engaged as an independent contractor, and neither party has authority to bind or obligate the other. Nothing in the Agreement creates any agency, employment, partnership, fiduciary or joint venture relationship between the parties. Only Company and Client may enforce the Agreement and the parties agree that there are no 3rd party beneficiaries under the Agreement. Each party is responsible for acts and omissions of its respective employees, agents, representatives and the Client is responsible for breach or violation of this Agreement by its Authorized Users.
F. No liability shall result from a failure or delay in performance of any of its obligations under the Agreement to the extent that such failure or delay is caused by circumstances beyond the reasonable control of Company or Client (a "Force Majeure Event") and further Company shall not be liable for any delays caused by Client’s acts, omissions, or failure to timely deliver or perform its obligations. Payment obligations shall not be delayed or excused as a result of Force Majeure Events unless provision of Service is suspended or delayed by such event.
Effective: February 1, 2021
Section 1. Defined Terms
Section 2. Services; Service Levels; Rights
Section 3. Fees
Section 4. Scope of Use
Section 5. Data Protection; Confidentiality; Retention
Section 6. Indemnification; Warranties
Section 7. Term; Termination
Section 8. Liability
Section 9. General
These Terms and Conditions of Service (“Terms”) set forth the terms under which the Modern Hire Company designated on the Order Form (“Company”) will provide Client with access to and use of certain of Company’s software as a service (SaaS) offerings, comprised of the Company talent acquisition platform and related software applications as specifically identified in the Order Form (the “SaaS Solution(s)”), and made accessible to Client from a web browser or mobile device via the internet as a Subscription Service as further defined below.
1. Defined Terms. Capitalized terms shall have the meanings given in these Terms and as specified below:
A. “Authorized User” is as defined in Section 4(A) below.
B. “Agreement” means collectively, the Order Form, these Terms and the attachments/links included within these Terms.
C. “Client” is as designated on the Order Form.
D. “Documentation” means all published specifications, user guides and reference manuals regarding the Services or the SaaS Solution provided to Client by Company from time to time (exclusive of sales and marketing materials).
E. “Effective Date” means the effective date as specified on the Order Form.
F. “Implementation Services” means the implementation services (if any) specified in the applicable Order Form necessary to implement and configure Client’s account on the Subscription Service and corresponding Materials.
G. “Materials” means certain reports, information and materials that are generated, provided or made available to Client under license as part of the Services. If included, such Materials will be specified in the Order Form.
H. “Order Form” means the statement(s) of work or order form(s), as applicable, executed by the Client and the Company detailing the Services to be provided by the Company.
I. “Services” means collectively, the Subscription Services and Implementation Services.
J. “Subscription Service(s)” means access to the applicable SaaS Solutions (including any updated versions of the SaaS Solution provided by Company as part of general maintenance), such other subscription services as may be designated on the Order Form, in the Documentation or corresponding Materials.
K. “Subscription Term” means, the initial Subscription Term and subsequent renewal periods as specified in the applicable Order Form.
L. “Talent Management Activities” means Client’s activities, policies, practices, decisions and actions related to its talent selection, acquisition, promotion and management.
2. Services; Service Levels; Rights.
A. Subject to the terms and conditions set forth in the Agreement, Company will provide the Client with the Services detailed on the Order Form. As necessary to receive the Services hereunder, Company grants to Client a personal (to Client and its Authorized Users), non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable and limited subscription to remotely access and use the Subscription Services, and a right to use the Documentation and Materials, in each case for the applicable Subscription Term solely for Client’s internal business operations in furtherance of Client’s Talent Management Activities and in accordance with the terms and conditions set forth in the Agreement (the “Subscription”).
B. The Subscription Services shall meet the Service Levels available set forth on the Service Level Agreement which is incorporated into and made a part of these Terms and is available here.
C. All rights not expressly granted by Company to Client under these Terms are reserved to and retained by Company. Client agrees that all right, title and interest in and to the Services, SaaS Solution(s), Documentation, and Materials are owned exclusively by Company. These Terms grant a Subscription as described herein and except for the limited rights expressly granted herein, no other rights are granted and no other use permitted. This Agreement is not a sale and does not assign, transfer or convey to Client or any Authorized User any rights of ownership or any intellectual property rights or any other rights or licenses (except as expressly set out in these Terms) in or related to the Services, SaaS Solution(s), Materials or Documentation. Notwithstanding anything herein to the contrary, the Agreement does not assign, transfer or convey to Client or any Authorized User any right, title or interest of any kind in or to any Company background intellectual property. Company shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client, any Authorized User or otherwise relating to the Services.
D. Company agrees that (as between the parties) all right, title and interest in and to Client’s trademarks, copyrights, patents, tradenames and logos (collectively, “Client Marks”) and all Client Data (as defined in Section 5A below) are owned exclusively by Client. All rights in and to the Client Marks not expressly granted by Client to Company under these Terms are reserved to and retained by Client. If required to provide the Services, Client hereby grants to Company a non-exclusive, royalty-free, fully paid up, non-transferable and revocable license to reproduce, display and use Client Marks as necessary to provide the Services. In addition, as additional consideration for the Services, Company may reference Client (by name and use of Client’s corporate logo) on Company’s website and in its promotional and marketing materials and activities.
A. The fees (the “Fees”), invoice and payment schedule for Services are as set forth in the Order Form. If not specified on an Order Form, invoicing is annual in advance and payment terms are within 30 days of the invoice date. Save as provided for in Section 6(A)(iii), Fees are non-refundable. In addition to the Fees, Client will reimburse Company for any documented expenses (e.g., travel) incurred in the provision of Services, payable within 30 days of the invoice date. Interest may be charged on unpaid amounts at the rate of 1.5% per month or the highest rate permitted by applicable law (if lower) until the date paid. Any invoice questions or concerns shall be raised by Client in writing within thirty (30) days of receipt of an invoice, including sufficient details for Company to understand the concern. Failure to timely notify shall be a waiver of any fee dispute.
A. The Subscription extends to (i) Client, (ii) Client’s employees who are authorized by Client to access and/or use the Services on behalf of Client in furtherance of Client’s Talent Management Activities; and (iii) subject to any scope and parameter of use limitations set forth in the Order Form, applicants/candidates for employment who are invited or authorized by Client to access the Subscription Services and/or complete a SaaS Solution by utilizing an access link or other access authorization provided by Client (or by Company on Client’s behalf) ((ii) and (iii) collectively, “Authorized Users”).
B. Client warrants that it will: (i) be responsible for obtaining and maintaining web-enabled devices and internet connectivity as necessary to access the Subscription Services; (ii) access and use the Subscription Services in accordance with and subject to the terms of the Agreement (including any scope and parameter limitations set forth on the applicable Order Form), the Documentation, the Materials and in compliance with applicable law; (iii) be solely responsible for its use of the Services and Materials and for its Talent Management Activities and related legal compliance; (iv) be responsible for any configuration of the Services, SaaS Solutions or Materials selected or designated by Client (e.g., Client-selected content, scoring bands, scoring scales, cut scores, advancement criteria); and (v) if an Order Form limits use to a specific Client job family, be responsible and liable for evaluating and determining if the Subscription Services are job-related for the applicable job family and for ensuring the candidates accessing the Subscription Services are applying for job roles that align with the specified job family (collectively, “Use Obligations”).
C. Neither Client nor its Authorized Users shall, nor permit any third party to, do or attempt to do any of the following with respect to or in connection with the Services, Documentation or Materials: (i) distribute, disclose, copy, duplicate, download or otherwise disseminate or make available to any third party; (ii) breach the use rights granted herein or attempt to license, sublicense, sell, resell, transfer, assign, loan, encumber or otherwise commercially exploit; (iii) modify, adapt or alter the physical or electronic characteristics or attempt to gain unauthorized access; (iv) translate, reverse engineer, dismantle, decompile, disassemble, or attempt to reconstruct, derive or intrude into any Company intellectual property underlying or deployed in connection with provision of the Services; (v) misuse by sending spam or any other form of duplicative or unsolicited messages, or transmitting material containing software viruses or other harmful or deleterious code, files, scripts, agents or programs or which is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or otherwise illegal or causes damage to person or property; (vi) modify or create derivative works from or republish any part of the Services or Documentation (in any form or media); (vii) remove, obscure, or alter any proprietary rights notice or add any other notices or markings; (viii) incorporate, merge, combine or integrate any part thereof into any other product, software, interface, process or service, including without limitation creating “links” to or from the Services, or by “framing” or “mirroring” any content from the Services or Materials; (ix) access or use to build a competitive product or service or otherwise to the detriment of Company or its business; or (x) use in a manner which infringes or violates any intellectual property, proprietary, or other rights of Company or of any third party or violates applicable law (collectively, the “Use Restrictions”). These obligations will survive termination or expiration of this Agreement. The parties agree that Client’s actual, alleged or threatened breach of the Use Restrictions or Use Obligations will give Company the right to seek to obtain equitable relief and pursue all other remedies Company may have available at law or in equity.
5. Data Protection; Confidentiality; Retention.
A. Any information input by an Authorized User into the Services, including information that personally identifies or can be used to personally identify any individual Authorized User (“Client Personal Data”), the Client Marks, and other of Client’s non-public or proprietary information or materials designated in writing by Client as confidential (collectively, “Client Data”) are Client’s property, and as between Company and Client, Client owns all Client Data. Company will take commercially reasonable steps to protect against the destruction, loss and unauthorized access, use, possession or alteration of Client Data in Company’s possession or control by complying with the applicable Data Protection Addendum. Client acknowledges that Client Data is not hosted or stored on servers located at Company facilities, and Client authorizes Company to use a third-party cloud-based web hosting solution(s) to host and store such Client Data. Client grants Company the unrestricted right to use Client Data in connection with performance of Services. Company may de-identify or anonymize Client Data (including Client Personal Data) and thereafter may aggregate, integrate, enhance, combine and/or modify such de-identified or anonymized data into anonymous, collective data (“Aggregated Data”), and such Aggregated Data shall be owned exclusively by Company and be deemed Company’s Confidential Information. Client warrants that it owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with the Agreement, such activities do not and will not be in violation of applicable law or result in infringement, misappropriation or violation of any intellectual property rights of any third party.
B. Client acknowledges that, while Company maintains appropriate security and privacy protections, use of the Services does not contemplate the following categories of information and the storage of such information is prohibited: (a) credit card or other financial information; (b) Social Security Numbers; (c) Driver’s License Numbers; (d) dates of birth; (e) Protected Health Information as that term is defined in the HIPAA/HITECH regulations or similar state regulations; and (f) other special categories of data other than those incidentally gathered by provision or use of the Services (e.g., gathered by video, such as race/gender) (“Prohibited Data”). Client shall not provide any Prohibited Data or process any Prohibited Data through the Services. Client is solely responsible for reviewing all Client Data and shall ensure that no Client Data constitutes or contains any Prohibited Data. Furthermore, Company is a mere conduit in the facilitation of data for Client and, as such, other than providing appropriate privacy and security safeguards, shall have no liability for the data input into the Services.
C. For the purposes of the Terms, “Confidential Information” means the terms of the Agreement and all non-public proprietary or confidential information of one party that is provided or made accessible to the other party in connection with the Agreement, but shall not include any information that is: (i) publicly available; (ii) already in the other party’s possession at the time of disclosure and not subject to a confidentiality obligation; (iii) obtained by the other party from any source without any obligation of confidentiality; (iv) independently developed by the other party without use of or reference to the disclosing party’s Confidential Information; or (v) required to be disclosed by order of a court or other governmental entity (but only for the disclosure required by such court order or governmental entity), provided that subject to applicable law, prompt notice shall be given to the party owning such Confidential Information so that such party may obtain a protective order, injunctive relief or other equitable relief.
Each party agrees: (1) not to use or disclose Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under the Agreement or as directed by the disclosing party, (2) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (3) to make Confidential Information available to authorized persons only on a “need to know” basis. Company may disclose Client Confidential Information on a need-to-know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of Services under the Agreement.
D. Company will store Client Data and Materials during the applicable Subscription Term for two (2) years from the date of initial storage (or such longer period as may be specified in an individual Order Form, as required by applicable law, or to satisfy current or future legal rights) after which period Company may delete it in accordance with Company’s data retention policies. Upon termination or expiration of the Agreement, Company shall have no obligation to store Client Data or Materials, provided that any Client Data or Materials which are not returned or destroyed shall continue to be subject to Company’s obligation to protect the confidentiality under Section 5C above and to secure such Client Data until returned or destroyed. Client may obtain a copy of Client Data generated from use of the interview technology SaaS Solution by extracting such Client Data by using Company’s application API (which is standard functionality of the Subscription Service) or through an alternate method as may be documented upon such terms (and for such fee) as mutually agreed.
6. Warranties ; Indemnification.
A. In the event Client’s authorized use of Services is restricted as a result of court order, either temporarily or permanently, at any time during the Subscription Term as a result of any actual or alleged claim brought by a third party that such use infringes, violation or misappropriation of such third party’s intellectual property rights (an “Infringement Claim”), then Company will, at its sole option and expense: (i) obtain for Client the right to continue receiving the Services, or (ii) replace or modify the impacted Services so they are non-infringing without any material loss of functionality or degradation of usability or performance; or (iii) if neither (i) nor (ii) are commercially feasible, terminate the outstanding Order Forms that are impacted by such Infringement Claims and refund any pre-paid but unused Fees.
In addition to the foregoing, Company agrees to indemnify, defend and hold Client and its affiliates, and their respective officers, directors, employees, agents, successors and permitted assigns harmless from and against any third-party claims, suits, actions, proceedings or demands and judgments, and resulting losses, payments, liabilities, fines, settlements, penalties, damages, costs, and expenses actually incurred (including reasonable legal fees) arising from or relating to an Infringement Claim. THE FOREGOING STATES COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND CLIENT’S SOLE AND EXCLUSIVE RIGHTS AND REMEDY WITH RESPECT TO INFRINGEMENT CLAIMS. Notwithstanding the foregoing, Company will have no liability or obligation under this Section in the event any Infringement Claim arises from Client and/or its Authorized Users’ unauthorized access to or use of the Services, access or use of the Services in combination with any third-party software or systems where the Infringement Claim would not be valid but for such combination, access or use of Services in violation of the Agreement or other breach or violation of the Agreement.
B. Company warrants that (i) it has full authority to enter into this Agreement and perform its obligations hereunder; and (ii) during the Subscription Term, the Services will conform in all material respects to these Terms, the Documentation and the Order Form. If Client believes Company has breached this warranty, Client must promptly notify Company of the same in writing. As Company’s sole obligation and Client’s sole and exclusive remedy for any breach of the foregoing warranty, Company will (if reasonably practicable) repair or replace the applicable Services to address such material non-compliance within 45 days after receipt of notice from Client. Company will have no warranty obligation under Section 6B(ii) above to the extent that: (1) any non-conformity is not material or cannot be reproduced in the course of evaluation; (2) any non-conformity arises due to reasons outside the control of Company, including without limitation the use or operation of any Third-Party Systems (as defined below); or (3) any non-conformity results from Client’s violation of the Agreement. In the event the Company is unable to repair or replace any non-compliance in accordance with this Section 6B(ii), Client shall be entitled to terminate the Agreement and Company shall refund to the Client any pre-paid Fees that have not been used as of the date of termination (it being agreed for these purposes that Fees shall be deemed to accrue on a pro rata basis).
To the extent that the Company provides integration of the Services including the SaaS Solution to third party systems (e.g., Outlook, Client’s designated Applicant Tracking System (ATS)) (“Third Party Systems”), the Company shall not be liable for the acts or omissions of such Third-Party Systems, including without limitation for:
(i) the accuracy or integrity of data provided by such Third Party Systems.
(ii) inaccurate, incorrect or incomplete translations or interpretations of data by such Third-Party Systems; and/or
(iii)any issues or losses (including data loss, security breach or service level failures) arising from such Third-Party Systems.
C. In addition to Company’s obligation to indemnify for Infringement Claims under Section 6A above, Company further agrees to indemnify, defend and hold Client and its affiliates, and their respective officers, directors (or their equivalent), employees, agents, assigns and successors-in-interest harmless from and against any third-party claims, suits, actions, proceedings, demands and judgments, and resulting losses, payments, liabilities, fines, settlements, penalties, damages, costs, and expenses actually incurred (including reasonable legal fees) (collectively, “Third Party Claims”) arising from or relating to: (i) Company’s gross negligence or willful misconduct; and (ii) an actual security breach that compromises Client Personal Data resulting from Company’s violation of its obligations under Section 5A.
D. Client warrants that: (i) it has full authority to enter into this Agreement and perform its obligations hereunder; and (ii) it and its Authorized Users will access the Subscription Service only for lawful purposes and will not violate any applicable laws or the rights of any third party in connection with use of the Services, and (iii) it owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with this Agreement, such activities do not and will not be in violation of applicable law or result in infringement, misappropriation or violation of any intellectual property rights of any third party.
E. Client agrees to indemnify, defend and hold Company and its affiliates, and their respective officers, directors (or their equivalent), employees, agents, assigns and successors-in-interest harmless from and against any Third Party Claims arising from or relating to: (i) Client’s Talent Management Activities; (ii) Client’s use of the Services and Client Personal Data; (iii) Client’s breach or violation of the Agreement, including the Use Restrictions and Use Obligations contained in these Terms.
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER “AS IS” AND CLIENT’S USE THEREOF IS AT CLIENT’S OWN RISK. CLIENT IS SOLELY RESPONSIBLE FOR ITS TALENT MANAGEMENT ACTIVITIES AND LEGAL COMPLIANCE. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUALITY. COMPANY FURTHER NEITHER WARRANTS THAT THE SERVICES WILL BE DEFECT FREE, UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES.
A. The Agreement and each party’s rights and obligations hereunder will commence on the Effective Date and will continue (unless otherwise terminated in accordance with this Agreement) until the end of the initial Subscription Term (as set forth in the Order Form) and shall thereafter automatically renew for further renewal periods as set forth on the Order Form unless either party has provided to the other written notice of the non-renewal prior to the expiry of the initial Subscription Term or any subsequent renewal period as set forth on the Order Form.
B. Either party may terminate the Agreement and the individual Order Form for cause if:
(i) the other party materially breaches any obligation, representation or warranty and fails to cure the breach within thirty (30) days (or five (5) business days in the case of non-payment of Fees) after receiving written notice of the breach from the non-breaching party; or
(ii) the other party has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the relevant party is incorporated, resident or carries on business.
In the event of termination by Company due to Client’s breach, the aggregate of all Fees due or to become due under the Order Form will be due and payable on the effective date of termination.
C. Upon termination of the Agreement or any individual Order Form, the Company will cease provision of all the Services set forth in the Order Form and the applicable Subscription will immediately and automatically terminate. Company may, in its’ sole discretion, suspend Client’s access to the Services if Client’s actions, in Company’s reasonable opinion, may pose a security breach or violation of law. Client will be obligated for payment during the period of suspension. Upon termination of the Agreement, the Client shall, at the request of the Company, return any Company intellectual property, Materials and/or Documentation in its possession or control.
D. Any provisions which by their terms extend beyond expiration or termination or which are necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of the Agreement, including without limitation, the sections on confidentiality, ownership/proprietary rights, disclaimers, limitations on liability, term and termination, and general Sections.
Notwithstanding anything to the contrary contained herein, Company’s total aggregate liability under this Agreement, whether in contract, tort, or otherwise (including any liability for any negligent act or omission and under any indemnity), for damages, losses, legal costs and other incidental costs which are not otherwise limited or excluded under this Agreement, to Client and / or to third parties claiming by or through Client is limited to the Fees paid to Company under the applicable Order Form under which such claim arose within the most recent twelve (12) months prior to the date the claim arose. IN NO EVENT WILL COMPANY BE LIABLE TO CLIENT AND / OR TO ANY THIRD PARTY CLAIMING BY OR THROUGH CLIENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES, COSTS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, ARISING UNDER ANY INDEMNITY OR UNDER ANY OTHER THEORY OF LIABILITY, RESULTING FROM PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE RIGHTS AND REMEDIES OF EACH PARTY UNDER THIS AGREEMENT CONSTITUTE A LIMITED, SOLE AND EXCLUSIVE REMEDY.
A. The Agreement: (i) constitutes the complete agreement between the parties regarding the subject matter contained herein and supersedes all prior and contemporaneous negotiations and agreements, written or oral; (ii) may be amended only by a written instrument executed by a duly authorized representative of each party and no usage of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement; (iii) is not assignable, delegable or transferable by Client except with the prior written approval of Company; (iv) is binding on and inures to the benefit of the parties and their respective successors and permitted assigns; (v) may be signed in counterparts, each of which constitutes an original and all of which together constitute one and the same instrument and a signature transmitted via facsimile, scanned and electronically transmitted, or third party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement (and each component part thereof) shall be treated as originals and shall be legally binding; and (vi) notices under this Agreement shall be delivered to Client contact at the email address as set forth in the Order Form and to the Company at legal@modernhire.com.
B. The Agreement is governed by the laws of the State of Ohio without regard to conflict of laws principles and the parties hereby consent to the jurisdiction of the courts of the State of Ohio. Any disputes arising from or related to the Agreement will first be subject to good faith discussions between executives of each party. If such disputes cannot be resolved with good faith discussions within ten (10) business days after discussions commence, then the parties agree that such disputes shall be resolved by confidential arbitration before a single arbitrator in a neutral location as mutually agreed by the parties. The governing law shall be as set forth in this Section 9B, and otherwise according to the Commercial Arbitration Rules of the American Arbitration Association. The language of the arbitration shall be English. The dispute shall be finally settled within twelve (12) months after appointment of the arbitrator. Judgment on the award rendered by the arbitrator may be enforced in any court having jurisdiction thereof. Notwithstanding anything to the contrary in this paragraph, either Party may: (i) apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory injunctive relief; (ii) seek redress in any court of competent jurisdiction in order to enforce its intellectual property rights or protect Confidential Information; or (iii) seek redress in any court of competent jurisdiction for claims relating to non-payment under this Agreement.
C. If any provision of the Agreement is determined to be invalid or unenforceable under applicable law, the provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of the Agreement shall continue in full force and effect.
D. In the event of any direct conflict between these Terms and any Order Form, these Terms will govern unless the applicable Order Form specifically states that the terms contained therein govern over or are specifically intended to modify the terms contained herein with respect to the Services covered by the Order Form. Terms, provisions or conditions on any purchase order, acknowledgement, or other pre-printed business form or writing that Client may provide to Company or use in connection with the procurement of Services will have no effect on the rights, duties or obligations of the Parties hereunder, regardless of any failure to object to such terms, provisions or conditions, and the terms of the Agreement shall govern over any conflicting terms contained in any such purchase order, acknowledgement or other form issued hereunder.
E. Company is being engaged as an independent contractor, and neither party has authority to bind or obligate the other. Nothing in the Agreement creates any agency, employment, partnership, fiduciary or joint venture relationship between the parties. Only Company and Client may enforce the Agreement and the parties agree that there are no 3rd party beneficiaries under the Agreement. Each party is responsible for acts and omissions of its respective employees, agents, representatives and the Client is responsible for breach or violation of this Agreement by its Authorized Users.
F. No liability shall result from a failure or delay in performance of any of its obligations under the Agreement to the extent that such failure or delay is caused by circumstances beyond the reasonable control of Company or Client (a "Force Majeure Event") and further Company shall not be liable for any delays caused by Client’s acts, omissions, or failure to timely deliver or perform its obligations. Payment obligations shall not be delayed or excused as a result of Force Majeure Events unless provision of Service is suspended or delayed by such event.
Updated: 1 February 2021