READ CAREFULLY THIS SOFTWARE SERVICE AGREEMENT (“AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN GEM SOFTWARE, INC. 550 KEARNY ST, SUITE 300, SAN FRANCISCO, CA 94108 (“GEM SOFTWARE”), AND YOU OR THE BUSINESS ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT (“CUSTOMER”), REGARDING ACCESS AND USE OF THE GEM SOFTWARE’S SERVICE (“SERVICES”). THE SERVICES ARE AVAILABLE ONLY TO INDIVIDUALS WHO ARE AT LEAST 18 YEARS OLD, WHO ARE ACTING FOR THEMSELVES OR IN THEIR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF A BUSINESS ENTITY OR OTHER ORGANIZATION. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS, ON BEHALF OF YOURSELF OR ON BEHALF OF SUCH BUSINESS ENTITY OR OTHER ORGANIZATION IN YOUR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF SUCH BUSINESS ENTITY OR OTHER ORGANIZATION. BY ACCESSING OR USING THE SERVICES IN ANY MANNER (“ACCEPTANCE”), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE YOU OR THE BUSINESS ENTITY OR OTHER ORGANIZATION YOU REPRESENT AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. ANY PURCHASE ORDER OR SIMILAR TERMS SHALL NOT APPLY.
IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO DO SO, YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES.
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS, AND PROHIBITS CLASS ACTION CLAIMS. IT AFFECTS HOW DISPUTES BETWEEN YOU AND GEM SOFTWARE OR THE BUSINESS ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT AND GEM SOFTWARE ARE RESOLVED. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
TERMS AND CONDITIONS
- Subject to the terms and conditions of this Agreement, Gem Software hereby grants Customer a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to access and use the Services solely for (i) Customer’s internal business purposes and (ii) other purposes separately authorized by Gem Software in writing. . The Services are subject to modification from time to time at Gem Software’s sole discretion, for any purpose deemed appropriate by Gem Software. Gem Software will use reasonable efforts to give Customer prior notice of material modifications.
- Gem Software will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Gem Software reserves the right to suspend Customer’s access to the Services (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Gem Software.
- Subject to the terms hereof, Gem Software will provide reasonable support to Customer for the Services from Monday through Friday during Gem Software’s normal business hours.
- 2. RESTRICTIONS AND RESPONSIBILITIES
- Access to the Services may require the Customer to install certain software applications (the “Software”). Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications.
- Customer will not (i) use the Services in a manner that may allow any person or entity other than an Authorized User to access or use the Services, or (ii) otherwise permit unauthorized access to the Services. An “Authorized User” is (i) any employee or contractor of Customer, or (ii) mutually-agreed-to end user or client of Customer who has been expressly authorized by Gem Software to access the Services and who is subject to a licensing agreement as least as restrictive as this Agreement. Customer will be fully responsible for each Authorized User’s use of the Services.
- Customer will not (i) reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) disassemble, decompile, reverse engineer, or translate any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; (iv) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (v) interfere with, modify, disrupt or disable features or functionality of the Services, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Services; (vi) provide use of the Services on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device; or (vii) access the Services in order to build a similar or competitive product or service.
- Customer will cooperate with Gem Software in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Gem Software may reasonably request. Customer will also cooperate with Gem Software in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
- Gem Software may contact Customer (using the contact information provided by such Customer) (“Primary Contact”) regarding all matters relating to this Agreement. Customer may change the individual designated as Primary Contact at any time by providing written notice to Gem Software.
- Customer hereby agrees to indemnify and hold Gem Software harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Gem Software has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Gem Software may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
- Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Gem Software is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Gem Software does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- 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 technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
- Except as provided in Section 4.3, the Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction 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. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
- Customer acknowledges that Gem Software does not wish to receive any Proprietary Information from Customer that is not necessary for Gem Software to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Gem Software may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
- Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
- 4. INTELLECTUAL PROPERTY RIGHTS
- This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, or any intellectual property rights contained therein. Except as expressly set forth herein, Gem Software alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Gem Software. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
- If Gem Software receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party or any laws (a “Claim”), Gem Software may (but is not required to) suspend activity hereunder with respect to that content and Customer will defend, indemnify and hold Gem Software harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
- Subject to this Section 4.3 and Section 4.4, Customer will retain all right, title and interest in and to the any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services (“Customer Data”). Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer will deliver Customer Data in an electronic form and format approved by Gem Software, and Customer will back up and retain Customer Data in accordance with commercially reasonable and industry standard back up and retention policies. Gem Software will receive and process Customer Data to perform Gem Software’s obligations under this Agreement. Notwithstanding anything to the contrary, Gem Software is hereby granted (i) a non-exclusive, royalty-free, worldwide, transferable license and right to internally use, copy, modify, create derivative works of, and disclose Customer Data for the purposes of providing the Services to Customer, and (ii) a non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up, worldwide, transferable license and right to (A) Candidate Data (as defined below), and (B) generate Aggregated Anonymous Data (as defined below), to freely use, copy, modify, create derivative works of, disclose and make available to third parties for their use and other exploitation, and otherwise exploit Aggregated Anonymous Data and Candidate Data for any business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Gem Software in connection with Customer’s use of the Services, but only in aggregate, anonymized form which doesn’t specifically identify Customer. “Candidate Data” means any Customer Data potentially related to any person considered for potential service or employment relationship, including but not limited to such person’s name, contact information, and any and all online profiles.
- Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Gem Software. Gem Software is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion, including but not limited to using Customer’s logo and service marks on its website and electronic and printed marketing materials.
- Customer will pay Gem Software the fees set forth on Gem Software’s website for the applicable Services package selected by Customer (the “Fees”). The Fees will be automatically charged to Customer’s credit card or payment information on file at the beginning of each payment term (and each subsequent renewal term) as selected by the Customer. Gem Software reserves the right to change its price list and to institute new fees at any time for the Services (“Updated Fees), upon notice to Customer, which may be sent by email or posted on Gem Software’s website at least 30 days before the Updated Fees take effect, after which, Gem Software will charge (and Customer agrees to pay) such Updated Fees for subsequent renewal terms. All fees paid for any then-current payment term are non-refundable, and Customer can cancel the Services for any subsequent payment term.
- Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Gem Software's net income) unless Customer has provided Gem Software with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
- Subject to earlier termination as provided below, this Agreement is for the service term as specified in the applicable Services package selected by Customer.
- In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the service term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
- 7. CLIENT SOFTWARE SECURITY
Gem Software represents and warrants that it will not knowingly include, in any Gem Software software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Gem Software fails to comply with the warranty in this Section, Customer may promptly notify Gem Software in writing of any such noncompliance. Gem Software will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
THE SERVICES AND GEM SOFTWARE PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. GEM SOFTWARE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- 9. LIMITATION OF LIABILITY
IN NO EVENT WILL GEM SOFTWARE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF GEM SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF GEM SOFTWARE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE HIGHER OF (i) ONE HUNDRED U.S. DOLLARS, OR (ii) THE FEES PAID TO GEM SOFTWARE HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- 10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Gem Software are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Any dispute arising from or relating to this Agreement that cannot be resolved by the parties within a period of thirty (30) days after notice of a dispute has been given by one party to the other (the last day of such thirty (30) day period being referred to herein as the “Arbitration Date”), will be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce as currently in force (the “Arbitration Rules”). The place of arbitration will be San Francisco, California, U.S.A. There will be one (1) arbitrator. If the parties cannot agree upon the identity of the arbitrator within fifteen (15) days after the Arbitration Date, the arbitrator will be appointed in accordance with the Arbitration Rules. The language to be used in the arbitral proceedings will be English. All decisions of the arbitrator will be in accordance with the terms of this Agreement. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. The party prevailing in the arbitration proceedings conducted pursuant to this Section will be promptly reimbursed by the other party for all reasonable costs, including reasonable attorneys’ fees, incurred relating to such arbitration proceeding. Notwithstanding the foregoing, neither Party will be prohibited from seeking injunctive or other equitable relief in any court of competent jurisdiction. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. CUSTOMER UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS AGREEMENT OR USING ANY SERVICES, YOU AND GEM SOFTWARE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.
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 Gem Software’s prior written consent. Gem Software may transfer and assign this Agreement or any of its rights and obligations under this Agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. 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 Gem Software 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; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Gem Software will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Last Modified: October 22, 2019