3. Fees.
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 Clause 6(A)(iii) and Clause 6(F), 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 will 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.

B. Any invoice questions or concerns shall be raised by Client in writing promptly after f receipt of an invoice, including sufficient details for Company to understand the concern. Failure to notify Company of any issues within a reasonable time after receipt of invoice shall be deemed to be a waiver of any fee dispute.

4. Scope of Use.
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 Activity; 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 and liable for its use of the Services and Materials and for its Talent Management Activities; (iv) be responsible and liable for any configuration of the Services, SaaS Solutions or Materials selected or designated by Client (e.g., Client-selected content (e.g., interview questions), 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 ensuring the Subscription Services are only used for that job family(collectively, “Use Obligations”). The tools, features and functionalities provided through the Services are designed to provide recommendations to facilitate and support candidate selection but are not intended to be the sole or exclusive basis for candidate evaluation or talent management decisions. Company advises that the Services (and any tools, features and functionalities incorporated into the Services or output generated from the Services) be used strictly as supplements to the independent and personal review by Client’s personnel responsible for making Client’s hiring decisions. Company assumes no liability for Client's use of the Services or for Client's Talent Management Activities.

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 breaches any intellectual property, proprietary, or other rights of Company or of any third party or breaches 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 any 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 anonymise Client Data (including Client Personal Data) and thereafter may aggregate, integrate, enhance, combine and/or modify such de-identified or anonymised 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 breach of applicable law or result in infringement, misappropriation or breach of any intellectual property rights of any third party.

B. Client acknowledges that, while Company maintains appropriate security and privacy protections (see our Privacy Policy), 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/National Insurance Numbers; (c) Driver’s Licence Numbers; (d) dates of birth; and (e) health data and 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/ethnicity) (“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: (a) 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, (b) 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 (c) 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 one (1) year 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 Clause 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. Indemnification; Warranties.
A. Subject to Clauses 6B to 6E (inclusive) and Clause 8, if as a result of Client’s authorized use of Services in accordance with this Agreement any claim or action is brought by a third party against Client alleging that the possession or use of the Services (or any part thereof) in accordance with the terms of this Agreement infringes or breaches such third party’s intellectual property rights (an “Infringement Claim”), then Company will indemnify the Client against any reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against Client as a result of or in connection with any such Infringement Claim.

B. If Client becomes aware of an Infringement Claim, Client must:

(i)give Company notice as soon as practicable, such notice to specify in reasonable detail the nature of the relevant Infringement Claim;

(ii)make no admission of liability, agreement or compromise in relation to the Infringement Claim without the prior consent of Company (such consent not to be unreasonably conditioned, withheld or delayed);

(iii)use reasonable endeavours to mitigate its loss;

(iv)give Company and its professional advisers reasonable access to the personnel of Client and to any relevant assets, accounts, documents and records within the power or control of Client and its professional advisers to examine such persons, assets, accounts, documents and records, and to take copies of the same, at its expense, for the purpose of assessing the merits of the relevant Infringement Claim; and

(v)at Company's option either take such action as Company may reasonably request to avoid, dispute, resist, compromise, defend, negotiate or settle the relevant Infringement Claim or give Company sole control over the defence and settlement of the Infringement Claim, and provide reasonable help in defending the Infringement Claim.

C. If any Infringement Claim is made, or if in Company's reasonable opinion any Infringement Claim is likely to be made, Company may 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 (it being agreed for these purposes that Fees shall be deemed to accrue on a pro rata basis).

D. 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.

E. Notwithstanding the foregoing, Company will have no liability or obligation under this Clause 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 breach of the Agreement or other breach or violation of the Agreement.

F. Company warrants that 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 with such warranty within 45 days after receipt of the notice from Client. Company will have no warranty obligation to the extent that: (i) any non-conformity is not material or cannot be reproduced in the course of evaluation; (ii) 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 (iii) any non-conformity results from Client’s breach of the Agreement. In the event the Company is unable to repair or replace any non-compliance in accordance with this Clause 6F, 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 (that are not Company sub-processors) (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 or security breach) arising from such Third Party Systems.

G. Client represents warrants and covenants 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 breach 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 breach of applicable law or result in infringement, misappropriation or breach of any intellectual property rights of any third party.

H. Except to the extent caused by a breach of Company’s warranty stated in Clause 6F above, Company's breach or violation of this Agreement or Company's sole negligence, 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 claims, suits, actions, proceedings or demands and judgments, and resulting losses, payments, liabilities, fines, settlements, penalties, damages, costs, and expenses (including reasonable legal fees) 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. 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, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUALITY OR THAT SERVICES WILL BE PERFORMED WITH REASONABLE SKILL AND CARE. 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.

7. Term; Termination.
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 and shall thereafter be automatically renewed for further periods as set forth on the Order Form (“Renewal Period(s)”) unless:

(i) Client has opted out of Automatic Renewal on the Order Form, or

(ii) either party has provided to the other written notice of the non-renewal at least 30 days prior to the expiry of the Initial Subscription Term or any subsequent Renewal Period.

B. Either party may terminate the Agreement for cause if:

(i) the other party materially breaches any obligation, representation or warranty and fails to cure the breach within forty five (45) 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, the Company will cease provision of Services, 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 breach of law or failure to pay fees due hereunder. 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 Materials and/or Documentation in its possession or control to the Company.

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 clauses.

8. Liability.
A. Nothing in this Agreement will operate so as to exclude or limit the liability of either Party to the other for fraud, death or personal injury arising out of negligence or any other liability that cannot be excluded or limited by law.

B. 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 within the most recent twelve (12) months prior to the date the claim arose.

C. IN NO EVENT WILL COMPANY BE LIABLE TO CLIENT AND / OR TO ANY THIRD PARTY CLAIMING BY OR THROUGH CLIENT FOR:

(a)ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES, COSTS OR DAMAGES; OR

(b)ANY 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.

D. THE RIGHTS AND REMEDIES OF EACH PARTY UNDER THIS AGREEMENT CONSTITUTE A LIMITED, SOLE AND EXCLUSIVE REMEDY.

9. General.
A. The Company may subcontract its obligations under this Agreement to its parent company, or to subsidiaries of its parent company (a “Group Company”) but the sole responsibility for the performance of this Agreement remains with the Company and the Group Company shall have no liability to the Client in this regard. The Client’s sole recourse for any matter relating to this Agreement shall be to the Company.

B. 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.

C. This Agreement, and any dispute or claim arising out of or in connection with it (including any dispute or claim relating to non-contractual obligations), shall be governed by, and construed in accordance with, English law.

D. All disputes, claims or controversies arising out of or in connection with the Agreement, including any non-contractual disputes and any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration which Rules are deemed to be incorporated by reference into this clause, The number of arbitrators shall be one. The seat of the arbitration shall be London, United Kingdom. The language to be used in the arbitral proceedings shall be English.

E. Each Party retains the right to apply to any court of competent jurisdiction for provisional and/or conservatory relief, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.

F. 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.

G. 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.

H. 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.

I. Notwithstanding any other provision of this Agreement, none of the terms of this Agreement shall be relied upon or enforceable under the Contracts (Rights of Third Parties) Act 1999 by any third party who is not a party to this Agreement.

J. No liability shall result from a failure or delay in performance of any of a party's obligations under the Agreement (except for the payment of amounts due hereunder) 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.