SERVICES TERMS AND CONDITIONS
This Services Terms and Conditions Agreement (the “Agreement”) is entered into by and between Gem Software, Inc., a Delaware corporation with offices at 1 Post Street, 18th Floor, San Francisco, CA 94104 (“Gem Software” or “Service Provider”) and the company or other legal entity identified in the signature block of the Gem Order Form that references this Agreement (“Customer”), and is effective as of the effective date of such Order Form (the “Effective Date”).
1. SERVICES AND SUPPORT
In consideration of (and subject to) payment of the fees and any marketing obligations or publicity rights set forth on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Gem Software will make available to Customer the Services selected in the Order Form. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Service Provider account (the “Account”). Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
2. RESTRICTIONS AND RESPONSIBILITIES
This is a contract for Services and the applicable hosted software will be installed, accessed and maintained only by or for Service Provider. Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use, reproduce and distribute internally within Customer’s business, and for Customer’s internal use only (and only in accordance with this Agreement), the Services described on the Order Form, as well as the documentation and data provided to Customer by Service Provider (collectively hereinafter referred to as the “Services”). Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; publish the Services without the prior written consent of Service Provider; or remove any proprietary notices or labels. In addition, Customer agrees that it shall use the Services only for legitimate business purposes related to recruitment and networking with candidates and potential candidates and for no other purpose. Any breach of the foregoing restrictions shall be deemed a material breach of the Agreement not capable of cure and Service Provider shall be entitled to immediately terminate the Agreement.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
Customer shall be responsible for ensuring that such Equipment is compatible with the Services. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or should reasonably be understood, due to the nature of the information or circumstances of disclosure, to be of a confidential or proprietary nature.
The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is in aggregate, de-identified and anonymized form.
4. PAYMENT OF FEES
Customer will pay Service Provider the Fees for the Services as listed on, and in accordance with the Payment Terms specified on, the applicable Order Form, or the Services may be terminated. The Fees for any renewal term shall be at Service Provider’s then standard rates currently in effect, or if applicable, as otherwise stated in the Order Form.
If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider shall respond to Customer within three (3) business days after receiving such inquiries.
Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider in accordance with the Payment Terms specified on the associated Order Form, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes and fees associated with Services other than U.S. taxes based on Service Provider’s net income.
Subject to earlier termination as provided below, this Agreement commences on the Effective Date and continues until all Order Forms for Services have expired or been terminated. Services subscriptions commence on the Order Form Effective Date specified in the applicable Order Form and continue for the initial Services Term as specified therein (the “Initial Service Term”).
Except as otherwise specified in the applicable Order Form and subject to earlier termination as provided herein, all purchases will automatically renew for additional periods of the same duration as the then-current Services Term (each, a “Renewal Term” and together with the Initial Service Term, the “Term”), unless either party gives the other party written notice of non-renewal (email permitted) at least thirty (30) days prior to the end of the then-current Services Term. Termination of this Agreement will terminate any and all Order Forms under this Agreement.
In addition to any other remedies it may have, Service Provider may also terminate this Agreement upon ten (10) days’ notice if Customer materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of receipt of such notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, Customer will pay in full for the Services up to and including the last day on which the Services are provided.
Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any order form.
The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination.
Service Provider agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, U.S. trademark or U.S. patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.1 to 2.3, or otherwise from Customer’s use of Services excluded from Service Provider’s aforementioned indemnity obligations in the second to last sentence of Section 6.1, above.
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement, including all addenda hereto and all Order Forms, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto or any Order Form, the terms of such addendum or Order Form shall prevail. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in additional to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
By signing the Order Form that references this Agreement, the parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.