Last Updated on October 20, 2020
These Private Label Software License Terms of Service govern Customer’s (the “Customer”) acquisition and use of HiringThing, Inc. (“HiringThing”) private label software, technology and services (the “Services”). If Customer registers for a free trial of HiringThing software or uses HiringThing free Services, the applicable provisions of this Agreement will also govern those free Services.
By accepting this Agreement by (1) clicking a box indicating acceptance, (2) executing a Statement of Work that references this Agreement, or (3) using free Services, Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.
HiringThing reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes. HiringThing may also, in the future, offer new Services. Such new Services shall be subject to the terms and conditions of this Agreement.
ARTICLE I: AGREEMENT DEFINITIONS
As used throughout this Agreement, the following terms shall have the meanings set forth below unless otherwise indicated:
1.01 “Affiliate” of a named Party means a corporation, partnership, joint venture or other entity controlling, controlled by or under common control with such Party. As used in this definition, “control” (and its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of more than fifty percent (50%) of the voting shares of such entity or the power to direct or cause the direction of management or policies (whether through beneficial ownership of securities or other ownership interests, by contract or otherwise).
1.02 “Agreement” means the terms and conditions contained herein and in all attached Exhibits.
1.03 “Bankruptcy Event” means any of the following events or circumstances with respect to a Party: (i) such Party ceases conducting its business in the normal course; (ii) becomes insolvent or becomes unable to meet its obligations as they become due; (iii) makes a general assignment for the benefit of its creditors; (iv) petitions, applies for, or suffers or permits with or without its consent the appointment of a custodian, receiver, trustee in bankruptcy or similar officer for all or any substantial part of its business or assets; or (v) avails itself or becomes subject to any proceeding under the U.S. Bankruptcy Code or any similar state, federal or foreign statute relating to bankruptcy, insolvency, reorganization, receivership, arrangement, adjustment of debts, dissolution or liquidation, which proceeding is not dismissed within sixty (60) days of commencement thereof.
1.04 “Change of Control” means with respect to a Party: (A) the direct or indirect acquisition of either (i) the majority of the voting stock of such party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or series of related transactions; or (B) such Party is merged with, or into, another entity.
1.05 “Customer Software” means the Customer’s enterprise software application product offerings, as may be modified by the Customer from time to time.
1.06 “Customer Technology” means Technology owned by or licensed to the Customer and provided to HiringThing hereunder, but in any event excluding HiringThing Technology.
1.07 “Confidential Information” means information, including without limitation Technology, that is transmitted or otherwise provided by or on behalf of either Party to the other Party in connection with this Agreement and the activities hereunder, and that should reasonably have been understood by the receiving Party because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the disclosing Party, an Affiliate of the disclosing Party or to a third party. Confidential Information may be disclosed in written or other tangible form (including on magnetic media) or by oral, visual or other means.
1.08 “Deliverable” means any tangible or intangible material, work or thing delivered by one Party to the other Party hereunder pursuant to this Agreement or a Statement of Work, including the physical media on which any source code or object code is stored and any associated Documentation.
1.09 “Derivative Work” has the meaning ascribed to it under the United States Copyright Law, Title 17 U.S.C. Sec. 101 et. seq.
1.10 “Development Schedule” means the schedule for the completion of identified Deliverables as set forth in this Agreement or a Statement of Work.
1.11 “Documentation” means all or any portion of the materials, in written or other tangible form (including on magnetic media), generated by HiringThing in the performance of development hereunder or generally made available by HiringThing for use in connection with the HiringThing Software, including without limitation any Software summaries, Software design, architectures, program logic, flow charts, program listings, functional or technical specifications, logical models, user guides, operator guides, installation and operation guides and any other supporting or programming materials. Documentation shall not include Source Code for the HiringThing Software.
1.12 “Enhancement” means any improvement, upgrade, new version of, enhancement to, fix, extension which is compatible or interoperable with, or any Derivative Work of, any Technology, including any Software generally made available by HiringThing to its supported customers.
1.13 “HiringThing Personnel” means HiringThing employees, agents, and subcontractors and the employees and agents of any such subcontractors, directly or indirectly supplied or otherwise utilized hereunder by HiringThing to perform work for the Customer.
1.14 “HiringThing Software” means the software product known as “HiringThing”, including all Enhancements thereto.
1.15 “HiringThing Technology” shall mean Technology owned by or licensed to HiringThing and provided to the Customer hereunder, but in any event excluding Customer Technology.
1.16 “Intellectual Property Rights” means all rights of a Person in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefor and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights in Technology anywhere in the world.
1.17 “Party” in its singular or plural form, refers to either HiringThing or Customer or both, as dictated by the use.
1.18 “Person” means any legal person or entity, including any individual, corporation, partnership, joint venture, association, joint stock Customer, trust, unincorporated association, limited liability corporation, governmental entity, or other person or entity of similar nature.
1.19 “Private Label Software” means the HiringThing Software as rebranded by HiringThing for private label use by the Customer pursuant to the Specifications set forth in one or more Statements of Work.
1.20 “Software” means any and all software code including associated data files, data (including image and sound data), design tools, user interfaces, templates, menus, buttons and icons, together with all related Documentation.
1.21 “Specification” means the specifications as set forth in this Agreement or a Statement of Work for Deliverables and any amendments or changes to such specifications in accordance with this Agreement.
1.22 “Statement of Work” means a written document that is mutually agreed upon by the Parties setting forth the requirements for the development and use of Software and Enhancements thereto. Each Statement of Work shall be designated by a number (e.g. SOW-1) and, once agreed upon and executed by the Parties, a Statement of Work shall be deemed incorporated into this Agreement.
1.23 “Term” shall have the meaning set forth in Section 9.1.
1.24 “Technology” means all technology, including all know-how, show-how, techniques, design rules, trade secrets, inventions (whether or not patented or patentable), algorithms, routines, Software and associated Documentation, files, data-bases, works of authorship and processes.
1.25 “User” means a single discrete user account of Private Label Software.
ARTICLE II: DEVELOPMENT OBLIGATIONS
2.1.1 Development of Private Label Product. HiringThing shall develop the HiringThing Software into a Private Label Software product to be known and marketed using a mutually agreed upon name and in accordance with the terms defined in the executed Statement of Work. Except as expressly provided in this Agreement or executed Statement of Work, each Party shall perform development work related to the development of the Private Label Software product at its own expense.
2.1.2 Ownership of Intellectual Property Rights. Unless otherwise agreed to in a Statement of Work, the Parties hereby agree that the following shall govern the ownership of Intellectual Property Rights in Private Label Software:
(a) To the extent that Private Label Software includes any HiringThing Technology, HiringThing shall retain ownership of all Intellectual Property Rights contained in such HiringThing Technology.
(b) To the extent that Private Label Software includes any Customer Technology, Customer shall retain ownership of all Intellectual Property Rights contained in such Customer Technology.
2.1.3 Enhancements to HiringThing Software. HiringThing shall provide the Customer with all Enhancements to the HiringThing Software that it makes generally available to HiringThing’s supported customers under its support and maintenance agreement in exchange for the support fees set forth in the executed Statement of Work. In addition, during the Term, the Customer may request that HiringThing develop Enhancements to Private Label Software. In the event that HiringThing agrees to perform such development, the terms and conditions of such development shall be set forth in a Statement of Work executed by the Parties. Such Statement of Work shall include, without limitation, a Development Schedule and Specifications. The Customer shall pay for HiringThing’s services against HiringThing’s monthly invoice on net thirty (30) day terms at HiringThing’s standard hourly engineering rate for HiringThing’s professional services and all reasonable HiringThing travel expenses incurred in connection herewith and specifically authorized in advance by the Customer.
2.2 Changes to Specifications. The Customer may, by written change order, request any reasonable changes to, including, but not limited to, additions to or deletions from Specifications. If any such change results in a material reduction or increase in the time of performance an appropriate adjustment to the applicable Development Schedule shall be negotiated by the Parties and the applicable Statement of Work shall be modified in writing accordingly.
2.3 Subcontracting. HiringThing may subcontract the performance of any portion of the development to be performed under this Agreement to any third party without prior written notice to Customer. Upon request, HiringThing shall provide the Customer with the names of any third parties to whom HiringThing subcontracts the performance of any portion of the development under this Agreement along with proof of receipt of written assurances regarding protection of Intellectual Property Rights and confidentiality by such third-party contractors. Notwithstanding any such subcontracting, unless otherwise agreed by the Parties in writing, HiringThing shall in any event and at all times remain liable for performance of this Agreement.
2.4 Default in Development. In the event HiringThing fails to deliver Deliverables in accordance with applicable Specifications as required under Section 2.1 within the time provided in the Development Schedule, or shall have failed to correct a material deviation from the Specifications within thirty (30) days thereof (or sixty (60) days if the deviation is non-material), or within such extended period for performance as may have become applicable pursuant to clause (a) below, then the Customer, at its sole option, and without prejudice to such other legal rights as it may have hereunder or otherwise, may: (a) extend the time for HiringThing’s performance; or (b) terminate the applicable Statement of Work (at which time payment for completed Deliverables defined by the applicable Statement of Work will be due and payable to HiringThing), with the right to use any Deliverables previously delivered or due to the Customer pursuant to this Agreement.
2.5 Delivery of Private Label Software.
2.5.1 Secure Servers. Delivery of the Private Label Software shall be completed when it is accessible to Users on secure servers at the URL mutually agreed upon by the Parties. HiringThing shall incorporate any Enhancements to Private Label Software created by HiringThing, other than pursuant to Section 2.1.2 above, no later than the date upon which HiringThing makes the same generally available to its supported customers.
ARTICLE III: ADDITIONAL OBLIGATIONS OF THE PARTIES
3.1 Training, Development and Professional Services. HiringThing agrees to provide Training Services to the Customer at rates and under terms and conditions of the delivery of such services that shall be mutually agreed to in writing by the Parties prior to the performance of such services.
3.2 Independent Contractor. The relationship of the Parties hereunder shall be that of independent contractors. Accordingly, and without modification of any obligation of HiringThing under this Agreement, HiringThing will provide day-to-day management and supervision of the development tasks for which it is responsible, including without limitation determining the time, scheduling, manner, method and place of performance. HiringThing represents and warrants that pursuant to the Internal Revenue Code of 1986, the regulations promulgated thereunder and applicable provisions of the common law, all HiringThing Personnel will be independent contractors in relation to the Customer. Accordingly, HiringThing will file all required forms and necessary payments appropriate to the status of HiringThing Personnel as independent contractors in relation to the Customer. In the event such independent contractor status is denied or changed and any HiringThing personnel are declared to have “employee” status with respect to the Customer, HiringThing agrees to hold the Customer harmless from and against all costs, including any interest, penalties and legal fees, which the Customer may incur as a result of such change in status.
3.3 Security Standards and Procedures.
3.3.1 Compliance with Security Regulations. When on the premises of the other Party, each Party agrees that all its personnel will at all times comply with all reasonable security regulations in effect at such premises and communicated to them in writing.
3.3.2 PCI-Compliant Datacenter. HiringThing Software is hosted in a datacenter managed by an ISO 27001 compliant, PCI DSS Level 1 Service Provider. These audited standards ensure that our infrastructure is maintained at the highest available levels of compliance with security best practices.
3.3.3 Transport Encryption. All data transmitted to and from HiringThing Software is encrypted using industry standard SHA256 SSL/TLS encryption. This ensures that data remains completely private even when transmitted over open networks where unencrypted data might be intercepted.
3.3.4 Employer Policies. We maintain a detailed employee information security policy and adhere to best practice procedures including, but not limited to, employee laptop encryption, the principle of least authority, prohibitions on non-official use of data, and stringent password policies.
3.3.5 Security Breach Procedures. In the event of unauthorized access to or use of Confidential Information of Customer in HiringThing’s possession or control that is personally identifying (i.e., data that identifies an individual that compromises the security, confidentiality, availability or integrity of such personally identifying Confidential Information and does, or is, reasonably likely to result in misuse of such personally identifying Confidential Information (“Security Incident”), HiringThing agrees to comply with all applicable breach notification laws of the relevant state(s) and to reasonably cooperate with Customer in Customer’s investigation of the Security Incident.
3.3.6 Code Review. All HiringThing Software undergoes both automated and peer review for security concerns, including XSS vulnerabilities, third-party library risk, and other potential vectors.
3.3.7 Annual Security Audit. HiringThing conducts a detailed infrastructure, policy, procedure and general business continuity review at least once per year in order to ensure the best possible security environment for our Users.
3.3.8 SOC 2 Type 2 Compliance. HiringThing commits to maintaining SOC 2 Type 2 compliance which requires strict adherence to information security policies and procedures encompassing the security, availability, processing, integrity and confidentiality of customer data.
3.4 No Conflicts. Except as may be otherwise agreed in this Agreement or in Section 2.3, each Party reserves the right to contract with other firms or individuals during the Term for services or the provision of products similar to the services being performed or products being provided under this Agreement or any Statement of Work.
3.5 Personnel Taxes and Benefits. The Parties shall be responsible for all employee-related benefits applicable to their respective personnel performing development under this Agreement. Neither Party shall be obligated to provide the other Party’s personnel with employee benefits of any type unless otherwise required by law. Each Party is responsible for withholding its portion of Federal Insurance Contributions Act (“FICA”) taxes, and for withholding income taxes for federal and state income tax purposes in the manner required by law. Each Party will, in a timely manner, pay over all amounts withheld to the Internal Revenue Service or to the appropriate state or foreign government authorities as the case may be, and will timely pay its share of all FICA and Federal Unemployment Tax Act (“FUTA”) taxes for all of its personnel performing work under this Agreement. Each Party shall be indemnified and held harmless by the other Party from any liability, cost or expense, including any interest, penalties and legal fees, that may be assessed against or incurred by the other Party’s failure to make any such payment.
3.6 Non-solicitation. During the Term and for a period of twelve (12) months thereafter, neither Party will directly or indirectly solicit for employment employees of the other Party; provided, however, that this Section 3.6 shall not be construed as precluding either Party from hiring any Person that seeks employment or responds to a general advertisement.
3.7 Maintenance and Support Services. HiringThing agrees to provide maintenance and support services for Private Label Software in accordance with Exhibit A. As consideration for such maintenance and support services, the Customer shall pay to HiringThing the maintenance and support fees set forth in the Statement of Work.
3.9 Marketing Activities. During the Term, the Customer shall use commercially reasonable efforts to do the following: (a) promote, distribute, solicit and obtain orders for and otherwise market Private Label Software; (b) demonstrate Private Label Software for distributors, resellers, customers and potential customers; (c) electronically publish information about Private Label Software; (d) include Private Label Software in trade shows, conferences and other marketing events; and (f) provide training to members of its sales force on Private Label Software.
3.10 Competing Products.
3.10.1 Nothing contained herein shall be construed as precluding HiringThing from developing, promoting, marketing, distributing and licensing other products, whether HiringThing products or third-party products, that compete directly or indirectly with the Customer’s products, provided that HiringThing shall in no event infringe the Customer’s Intellectual Property Rights and shall comply with the confidentiality provisions of Section 6.
3.10.2 Nothing contained herein shall be construed as precluding the Customer from developing, promoting, marketing, distributing and licensing other products, whether Customer products or third-party products, that compete directly or indirectly with Private Label Software; provided that the Customer shall in no event infringe HiringThing’s Intellectual Property Rights and shall comply with the confidentiality provisions of Section 6.
ARTICLE IV: LICENSES AND PROPRIETARY RIGHTS
4.1 Development Licenses.
4.1.1 License to HiringThing. Subject to the terms and conditions hereof, the Customer hereby grants to HiringThing a non-transferable, non-exclusive, royalty-free limited license, without the right to sublicense, to use internally and reproduce the Customer Technology provided to HiringThing hereunder, solely for the purpose of performing development under this Agreement.
4.1.2 License to the Customer. Subject to the terms and conditions hereof, HiringThing hereby grants to the Customer a non-transferable, non-exclusive, royalty-free limited license, without the right to sublicense, to use internally and reproduce HiringThing Technology provided by HiringThing to the Customer hereunder, solely for the purpose of performing development under this Agreement.
4.2 HiringThing Technology. HiringThing shall own all right title and interest in and to all HiringThing Technology and any Derivative Works thereof, including all Intellectual Property Rights therein and thereto.
4.3 Customer Technology. The Customer shall own all right title and interest in and to all the Customer Technology, and any Derivative Works thereof, including all Intellectual Property Rights therein and thereto.
4.4 License to Private Label Software.
4.4.1 HiringThing hereby grants to the Customer, under all of HiringThing’s Intellectual Property Rights in and to Private Label Software, an exclusive, worldwide, fee-bearing right and license, including the right to grant and authorize sublicenses to use and reproduce Private Label Software, and to market, distribute and sublicense Private Label Software to end Users. The Customer may distribute and sublicense Private Label Software to Users on terms and conditions no less favorable than those contained in the Customer’s standard software license and support agreement then in effect. HiringThing understands and agrees that Private Label Software will be distributed by the Customer and will be marketed under one or more of the Customer brands pursuant to the Customer’s then current end User license agreement. As consideration for the license granted in this Section 4.4, the Customer agrees to pay to HiringThing license fees in accordance with the provisions of the relevant statement of work or addendum.
4.4.2 Except as may otherwise be provided in this Agreement, during the term of this Agreement, the Customer shall not: (i) modify, adapt, translate, localize, distribute or create Derivative Works of Private Label Software; (ii) decompile, disassemble, reverse engineer or otherwise reduce Private Label Software to human perceptible form, or (iii) make copies of Private Label Software or related documentation except for back copies as needed for the Customer to fulfill its obligations under this Agreement.
4.5 Disclosure of Third-Party Materials. Upon request by the Customer, HiringThing shall promptly disclose to the Customer the extent to which any Deliverable, or any portion thereof, uses, incorporates or is dependent upon Technology owned by or licensed from third parties, and shall obtain for the Customer, at no cost to the Customer, any license rights to any Intellectual Property Rights embodied in any Deliverable necessary or appropriate to the Customer’s right to use such Deliverable.
4.6 Trademark License. The Customer authorizes HiringThing to use its current and future trademarks, service marks and trade names (“Trademarks”) solely in connection with development of Private Label Software and HiringThing shall use the Trademarks solely in accordance with the instructions of the Customer. HiringThing acknowledges and agrees that the Customer may, from time to time, revise these instructions for the purpose of protecting the standards of quality established for the Customer’s goods and services sold under the Trademarks and protecting the Customer’s rights in the Trademarks.
4.7 No Other Licenses. Except as explicitly set forth herein, nothing contained in this Agreement shall be construed as granting or conferring, by implication, estoppel or otherwise, any license or right under any Intellectual Property Rights, whether now existing or hereafter obtained, and no such license or other right shall arise from this Agreement or from any acts or omissions in connection with the execution of this Agreement or the performance of the obligations of the Parties hereunder.
4.8 Tangible Property. Unless otherwise agreed to in writing, any tangible property, including but not limited to Documentation and equipment or material of every description furnished by one Party to another hereunder, is and shall remain the property of the furnishing Party. The Parties shall not use such property, except in performing this Agreement. All such property shall be returned to furnishing Party upon the earlier of either the furnishing Party’s request, completion or termination of the relevant services or expiration or termination of this Agreement.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
5.1 The Customer’s Representations and Warranties. As an inducement to HiringThing entering into this Agreement, the Customer represents and warrants on an ongoing basis as follows:
5.1.1 Organization Representations; Enforceability. Customer is a duly organized, validly existing entity in good standing in its state of registration. The execution and delivery of this Agreement by the Customer and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Customer. This Agreement constitutes a valid and binding obligation of the Customer enforceable in accordance with its terms.
5.1.2 No Conflict. The entering into and performance of this Agreement by the Customer does not and will not violate, conflict with or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which the Customer is a party. The Customer will not grant any rights under any future agreement, nor will it permit or suffer any lien, obligation or encumbrances that will conflict with the full enjoyment by HiringThing of its rights under this Agreement.
5.1.3 Right to Make Full Grant. The Customer has and shall have all requisite ownership, rights and licenses to perform its obligations under this Agreement fully as contemplated hereby and to grant to HiringThing all rights with respect to the Customer Technology and Intellectual Property Rights purported to be granted hereunder, free and clear of any and all agreements, liens, adverse claims, encumbrances and interests of any Person, including, without limitation, the Customer’s employees, agents and contractors and such contractors’ employees and agents who have provided, are providing or shall provide services with respect to the development of the Deliverables.
5.1.4 Noninfringement. Nothing contained in the Customer Software or the Customer Technology required in the process of incorporating HiringThing Software into Private Label Software will infringe, violate or misappropriate any Intellectual Property Right of any third party and no characteristic of the Customer Software or the Customer Technology does or will cause manufacturing, using, maintaining or selling Private Label Software to infringe, violate or misappropriate any Intellectual Property Right of any third party.
5.1.5 Indemnity. Subject to ARTICLE VIII, the Customer shall be responsible for, indemnify and hold HiringThing harmless from any damages, costs, liabilities, and/or expenses (including without limitation reasonable attorneys’ fees), arising out of the breach of the foregoing subsections.
5.2 HiringThing Representations and Warranties. As an inducement to the Customer entering into this Agreement, HiringThing represents and warrants on an ongoing basis as follows:
5.2.1 Organization Representations; Enforceability. HiringThing is a duly organized and validly existing corporation under the laws of the Commonwealth of Pennsylvania. The execution and delivery of this Agreement by HiringThing and the transactions contemplated hereunder have been duly and validly authorized by all necessary action on the part of HiringThing. This Agreement constitutes a valid and binding obligation of HiringThing enforceable in accordance with its terms.
5.2.2 No Conflict. The entering into and performance of this Agreement by HiringThing does not and will not violate, conflict with or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which HiringThing or any of its employees is a party or by which it or any of its property is or may become subject or bound. HiringThing will not grant any rights under any future agreement, not will it permit or suffer any lien, obligation or encumbrances that will conflict with the full enjoyment by the Customer of its rights under this Agreement.
5.2.3 Right to Make Full Grant. HiringThing has and shall have all requisite ownership, rights and licenses to perform its obligations under this Agreement fully as contemplated hereby and to grant the Customer all rights with respect to the Deliverables and Private Label Software and Intellectual Property Rights purported to be granted hereunder, free and clear of any and all agreements, liens, adverse claims, encumbrances and interests of any Person, including, without limitation, HiringThing’s employees, agents, artists and contractors and such contractors’ employees, agents and artists, who have provided, are providing or shall provide services with respect to the development of the Deliverables.
5.2.4 Noninfringement. Nothing contained in Private Label Software (other than any Customer Technology) will infringe, violate or misappropriate any Intellectual Property Right of any third party and no characteristic of Private Label Software (other than any characteristic of Customer Technology) does or will cause manufacturing, using, maintaining or selling the Customer products or other products incorporating such Private Label Software to infringe, violate or misappropriate any Intellectual Property Right of any third party.
5.2.5 No Harmful Code or Viruses. To the best of its knowledge, Private Label Software as delivered by HiringThing to the Customer will not contain any code that is injurious to end Users or their property, booby traps, time bombs or other programming designed to interfere with the normal functioning of Private Label Software or the Customer’s or the end User’s equipment, programs or data.
5.2.6 Performance. HiringThing represents and warrants to the Customer and its customers that Private Label Software will substantially perform in accordance with the specifications therefore.
5.2.7 Indemnity. Subject to ARTICLE VIII, HiringThing shall be responsible for, indemnify and hold the Customer harmless from any damages, costs, liabilities, and/or expenses (including without limitation reasonable attorneys’ fees), arising out of the breach of the foregoing subsections.
WARRANTY DISLAIMER. EXCEPT AS SET FORTH ABOVE AND IN AN APPLICABLE STATEMENT OF WORK, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SUBJECT MATTER HEREOF. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SUBJECT MATTER HEREOF.
ARTICLE VI: CONFIDENTIAL INFORMATION
6.1 Terms of Agreement. The terms of this Agreement are the Confidential Information of both Parties and shall not be disclosed by either Party in any manner (including, but not limited to, news releases, articles, brochures, advertisements, speeches or other information releases) without the prior written consent of the other Party not to be unreasonably withheld.
6.2 Limitations on Use and Disclosure. Each Party receiving Confidential Information (the “Recipient”) agrees as to any such Confidential Information that may be disclosed to it by the other Party hereunder (the “Discloser”):
(a) to protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder to (x) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (y) to its employees and subcontractors, and its Affiliates’ employees and subcontractors, who have a need to know, for the purpose of this Agreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written agreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Person owning such Confidential Information;
(b) to use such Confidential Information only for the purposes of this Agreement;
(c) not to make copies of any such Confidential Information or any part thereof except for the purposes of this Agreement; and
(d) to reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices as are contained in or on the original or as the owner may otherwise reasonably request.
6.3 Technology. The Parties agree that the HiringThing Technology or the Customer Technology, as applicable, and Deliverables embodying the same, shall be deemed the Confidential Information of the Party owning such Technology under the terms hereof.
6.4 Exceptions. The restrictions of this ARTICLE VI on use and disclosure of Confidential Information shall not apply to information that (a) was publicly known at the time of Discloser’s communication thereof to Recipient; (b) becomes publicly known through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient; (c) was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient; (d) is developed by Recipient independently of and without reference to any of Discloser’s Confidential Information or other information that Discloser disclosed in confidence to any third party; (e) is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or (f) is identified by Discloser as no longer proprietary or confidential. In addition to the foregoing, it is understood and agreed that nothing contained in this Section 6 is intended to, nor shall, restrict the use by either Party of general ideas, concepts, approaches, techniques or know-how learned or developed by such Party as a result of access to the Discloser’s Confidential Information; provided, however, that such ideas, concepts, approaches, techniques or know-how are not embodied or specifically described in written information, software code or other tangible form furnished by the Discloser to such Party hereunder.
6.5 Disclosure Pursuant to Legal Requirement. In the event Recipient is required by law, regulation or court order to disclose any of Discloser’s Confidential Information, Recipient will promptly notify Discloser in writing prior to making any such disclosure in order to facilitate Discloser seeking a protective order or other appropriate remedy from the proper authority. Recipient agrees to cooperate with Discloser in seeking such order or other remedy. Recipient further agrees that if Discloser is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
6.6 Return of Confidential Information. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage media) shall be and remain the property of Discloser. All such information in any computer memory or data storage apparatus shall be erased or destroyed and all such information in tangible form shall be returned to Discloser, promptly upon the earlier of: (i) the written request of the Discloser, (ii) completion or termination of the applicable Statement of Work, or (iii) termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient. In the event that Discloser requests the return of Confidential Information pursuant to subsection (i) above, then Recipient shall comply with such request; provided, however, that if returning such Confidential Information prevents Recipient from exercising a license granted hereunder, such request shall constitute a material breach of this Agreement. In addition to the foregoing, in the event that either Party has received the other Party’s Source Code in furtherance of the purposes of the Agreement, the Party receiving such Source Code shall return or destroy all copies thereof as soon as reasonably practical after no longer having a need for such Source Code.
6.7 Equitable Relief. The Parties acknowledge that their respective Confidential Information is unique and valuable, and that breach by either Party of the obligations of this Agreement regarding such Confidential Information and intellectual property rights will result in irreparable injury to the affected Party for which monetary damages alone would not be adequate remedy. Therefore, the Parties agree that in the event of a breach or threatened breach of such provisions, the affected Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
ARTICLE VII: LIMITATIONS OF LIABILITY
EXCEPT (A) AS TO THE OBLIGATIONS OF THE PARTIES UNDER SECTIONS 8, (B) FOR LIABILITY ARISING OUT OF BREACHES OF SECTION 6 AND (C) ANY INTENTIONAL MISUSE OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY HERETO, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, STATUTORY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS) RESULTING FROM, ARISING OUT OF, OR RELATED TO ITS PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT (A) AS TO THE OBLIGATIONS OF THE PARTIES UNDER SECTIONS 8, (B) FOR LIABILITY ARISING OUT OF BREACHES OF SECTION 6 AND (C) ANY INTENTIONAL MISUSE OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY HERETO, EACH PARTY’S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE AMOUNT OF FEES DUE AND PAYABLE TO HIRINGTHING UNDER THIS AGREEMENT.
ARTICLE VIII: INDEMNITY
Each Party (as applicable, an “Indemnifying Party”) will defend at its expense and indemnify and hold harmless the other Party and their respective directors, officers, employees, agents, advisers and customers (each, an “Indemnitee”) from and against any action, suit, or other proceeding, or settlement thereof, to the extent that such action, suit or proceeding arises out of or results from (a) damage to tangible personal property and personal injury or death arising from any occurrence caused by any act or omission of the Indemnifying Party related to the performance of this Agreement; or (b) any breach of any of their respective representations or warranties set for in ARTICLE V. The Indemnifying Party shall pay those losses, damages, expenses and costs, including without limitation interest, penalties, and fees of attorneys and accountants, awarded against, or incurred by, any Indemnitee in, or as a result of, any such suit, action or other proceeding, or any settlement thereof, provided that (i) the Indemnitee reasonably promptly notifies the Indemnifying Party in writing of any such claim, (ii) the Indemnifying Party is accorded control of the defense and of all negotiations for settlement or compromise of such claim, and (iii) Indemnitee cooperates with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense and settlement of such claim, including providing to the Indemnifying Party, at the Indemnifying Party’s expense, such information and assistance as the Indemnifying Party may reasonably request. The Indemnitee may, at its own expense, be represented in such defense.
ARTICLE IX: TERM AND TERMINATION
9.1 Term. Unless earlier terminated in accordance with its terms, this Agreement commences on the date Customer first accepts it and continues until all Services hereunder have expired or have been terminated as expressly permitted herein.
9.2 Term and Renewals. Customer agrees to pay applicable fees for the entire term. Customer cannot cancel or terminate Services except as expressly permitted by Section 9.3 (Termination for Breach). If no term start date is specified on the applicable order form, the term starts when Customer first obtains access to the applicable Service. Each term will automatically renew for additional successive periods equal to the initial term unless: (i) otherwise stated on the applicable order form; or (ii) either party gives written notice of non-renewal at least ninety (90) days before the end of the then-current term. Pricing for any term renewal, new order form, or order form changes will be at HiringThing’s then-applicable rates unless otherwise stated on the applicable order form.
9.3 Termination for Breach. Either Party may terminate this Agreement if the other Party is in material breach of any termTerm, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after the non-breaching Party gives the breaching Party written notice of such breach.
9.4 Suspension of Service. HiringThing may suspend the Services if Customer’s account is more than forty-five (45) days overdue. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.4. However, unless these terms have been terminated, HiringThing will cooperate with Customer to promptly restore access to the HiringThing Service once we verify that Customer has resolved the condition requiring suspension.
9.5 Bankruptcy. If a Bankruptcy Event occurs with respect to either Party, the other Party may terminate this Agreement and all rights and licenses granted hereunder effective upon thirty (30) days’ written notice.
9.6 Effect of Termination. Upon any expiration or termination of these terms or an order form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable HiringThing Service; (b) delete (or, at HiringThing’s request, return) any and all copies of any HiringThing code, documentation, passwords or access codes, and any other HiringThing Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable HiringThing Service will cease and HiringThing may delete the Customer Data at any time after thirty (30) days from the date of termination. If HiringThing terminates these terms for cause as provided in Section 9.3 (Termination for Breach), any payments for the remaining portion of the term will become due and must be paid immediately by Customer.
9.7 Available Remedies. Termination of all or any portion of this Agreement in accordance with this ARTICLE IX shall not limit the terminating Party from pursuing any other remedies otherwise available to it at law or in equity, including injunctive relief.
9.8 Change of Control. In the event HiringThing is subject to a Change of Control, it shall remain obligated under any current Statement of Work to complete such work and shall continue to provide customer support for Private Label Software pursuant to Exhibit A for the duration of the remaining term as defined in the then current Statement of Work.
ARTICLE X: GENERAL
10.1 Waiver. The failure of either Party to insist on the strict performance of any terms, covenants and conditions of this Agreement at any time, or in any one or more instances, or its failure to take advantage of any of its rights hereunder, or any course of conduct or dealing, shall not be construed as a waiver or relinquishment of any such rights or conditions at any future time and shall in no way affect the continuance in full force and effect of all the provisions of this Agreement.
10.2 Headings. Headings used in this Agreement are for convenience of reference only and shall not be construed as altering the meaning of this Agreement or any of its parts.
10.3 Arbitration. Except with respect to any dispute involving a Party’s intellectual property rights, all disputes arising under this Agreement shall promptly be submitted to arbitration in Northampton County, Pennsylvania, before one arbitrator (who need not be AAA personnel) in accordance with the rules of the American Arbitration Association. The arbitrator may assess costs, including counsel fees, in such manner as the arbitrator deems fair and equitable. The award of the arbitrator shall be final and binding upon all Parties, and judgment upon the award may be entered in any court of competent jurisdiction, unless otherwise provided herein.
10.4 Governing Law; Intellectual Property Disputes. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to the conflicts of laws doctrine of such state. Jurisdiction and venue over any intellectual property dispute arising under this Agreement shall lie with the Northampton County Court of Common Pleas or the United States District Court for the Eastern District of Pennsylvania. The Parties waive any objections to such jurisdiction. Should either Party attempt to resolve an intellectual property dispute by any method other than pursuant to this Section, the responding Party is entitled to recover from the initiating party all damages, expenses and attorneys’ fees incurred as a result of that breach. Any Party to this Agreement who breaches the intellectual property provisions of this Agreement shall be liable for all expenses, including costs and attorneys’ fees, incurred by the Customer to enforce this Agreement, regardless of the outcome of the matter.
10.5 Survival. The Parties agree that the provisions of Sections 3.2, 3.5, 3.6, 3.7, 4.2, 4.3, 4.4, 4.7, and 5 – 10 shall survive the expiration or any earlier termination of this Agreement.
10.6 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining terms shall not be affected. The Agreement shall be interpreted as if the illegal, invalid or unenforceable provision had not been included in it, and the invalid or unenforceable provision shall be replaced by a mutually acceptable provision which, being valid and enforceable, comes closest to the intention of the Parties underlying the invalid or unenforceable provision.
10.7 Notices. All notices, requests, demands, or communications required or permitted hereunder shall be in writing, delivered personally or by electronic mail, facsimile, overnight delivery service at the respective addresses set forth below (or at such other addresses as shall be given in writing by either Party to the other). All notices, requests, demands or communications shall be deemed effective upon receipt for personal delivery, or on the second business day following the date of sending by electronic mail, facsimile or overnight delivery service.
If to HiringThing:
PO Box 697
Bartonsville, PA 18321
If to the Customer, to the address provided in the Statement of Work.
10.8 Assignment. The respective rights and obligations provided in this Agreement shall bind and inure to the benefit of the Parties, their legal representatives, successors and permitted assigns. Neither Party shall assign this Agreement in whole or in part, without the prior written consent of the other Party, which consent may be withheld for any reason. Notwithstanding the foregoing, neither HiringThing nor the Customer shall be required to obtain the other Party’s consent to assign this Agreement in connection with a merger or sale of all or substantially all of such Party’s assets, provided that such merger or sale does not involve a Customer the other Party reasonably deems to be a direct competitor.
10.9 Press Releases; Public Announcements. Neither Party may make any press release or public announcement about this Agreement, its existence or its contents without the prior written consent of the other Party, except that the Customer may issue general press releases about this Agreement in order to fulfill its marketing commitments contained in Section 3.9 hereof with prior written notice to HiringThing. Notwithstanding the foregoing, HiringThing shall not be required to obtain the Customer’s consent for including the Customer’s name on its customer/partner list or on its website.
10.10 Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between HiringThing and the Customer. Neither Party is by virtue of this Agreement authorized as an agent, employee or legal representative of the other. Except as specifically set forth herein, neither Party shall have power to control the activities and operations of the other. Neither Party shall have any power or authority to bind or commit the other.
10.11 Order of Precedence. In the event of any ambiguity and/or inconsistency among the terms and conditions of this Agreement and any Statement of Work, the terms and conditions of this Agreement shall control unless such Statement of Work by its terms overrides a specific Section or Sections of this Agreement.
10.12 Force Majeure. Neither Party shall be liable in case of force majeure. The Parties to this Agreement agree that force majeure shall include (but shall not be limited to): material breakdown of equipment, labor disputes of whatever nature or cause, and any other circumstances reasonably beyond the control of one of the Parties. The occurrence of a force majeure event shall not relieve the Customer of its payment obligations under this Agreement unless such event has an impact on the Customer’s ability to fulfill such obligations.
10.13 Entire Agreement. This Agreement constitutes the entire understanding of the Parties, and supersedes all prior or contemporaneous written and oral agreements, representations or negotiations with respect to the subject matter hereof. This Agreement may not be modified or amended except in writing signed by both Parties.
MAINTENANCE AND SUPPORT
1. MAINTENANCE AND SUPPORT OBLIGATIONS OF THE PARTIES
Support is divided into three (3) categories:
“Tier One Support” means the provision, during the standard business hours, of assistance via electronic mail, a website, or other electronic means. Such assistance shall include: (i) being the first point of contact for all support issues relating to Private Label Software; (ii) characterizing and analyzing support issues; (iii) clarification of functions and features of Private Label Software; (iv) clarification of the User Documentation; (v) guidance in the operation of Private Label Software, and (vi) error verification, analysis and correction to the extent possible.
“Tier Two Support” means the support required to resolve any and all support issues and problems relating to Private Label Software that are not resolved by Tier One Support.
“Tier Three Support” means the provisions of corrections for defects in Private Label Software that cause the software to fail to conform to the specifications therefore. This shall also include new releases and new interfaces as they are generally developed and made available.
As between the HiringThing and Customer, HiringThing shall provide all support to Users.
HiringThing shall use its commercially reasonable efforts to resolve all reproducible errors in Private Label Software. Additionally, in the event that an error in Private Label Software either causes a total system standstill or causes serious disruption of a major business function, HiringThing shall use its best efforts to resolve the error and shall work diligently until such error is resolved.
2. PRIORITIES, RESPONSE TIME AND RESOLUTION OBJECTIVES
HiringThing shall comply with the following schedule for addressing support requests from the Customer, internal requests, technical support and any other support provided under the Agreement (where “hour(s)” refer to standard business hour(s)):