Subscription Terms and Conditions
1. Scope of this Agreement
Products may include any software and web based services offered by JMM including without limitation JMM’s ENGAGE product (www.engagetalent.com) and JMM Applicant Tracking and Assessment set of products (www.jobmarketmaker.com).
2. Right to Access Products
Subject to the terms and conditions of the Agreement, JMM grants to Customer for the Term a limited, non-exclusive, royalty-free, non-transferable, non-assignable, non-sublicensable, revocable rights to access and use the Products in accordance with the restrictions set forth in the Agreement and any documentation that JMM makes available to Customer or publicly. Customer shall use the Products solely for Customer’s internal business purposes, and shall not rent, lease, license, sell, or offer for sale the Products.
2.2. Acceptable Use and Compliance with Laws
Customer shall use the Products, and ensure any of its employees, contractors, affiliates, or other personnel to which it gives access to the Products (“Customer Personnel”) use the Products only in compliance with all applicable laws and regulations, any privacy, information security and protection, and acceptable use policies that JMM or its service providers establish. Customer shall be liable to JMM for any claims, fines or damages arising from its (and the Customer Personnel’s) failure to comply with the foregoing.
Customer is responsible for all activity occurring under its user accounts. Customer will maintain the accuracy, completeness, and timeliness of the information provided during subscription including billing information, contact information, and number of user licenses; and purchase a sufficient number of licenses by assigning and using only one license per person (Customer shall not use or share a license among multiple users).
Customer is solely responsible for (i) compliance with all laws and governmental regulations affecting its business and its use of data potentially including the Fair Credit Reporting Act (“FCRA”), and (ii) any use Customer may make of the Products (including any reports, analytics, or assessments produced in connection therewith) to assist it in complying with any laws and governmental regulations. As such, JMM Products and its personnel and affiliates do not provide to Customer any legal advice or guarantee in regards to compliance with data privacy, employment, or other applicable state, federal, and international laws.
2.3. Copyrights and Trademarks
All parts of Products are the property of JMM and/or its affiliates. Job Market Maker, the Job Market Maker logo, ENGAGE Talent, ENGAGE, and the ENGAGE logo and other items marked as such are trademarks and service marks of Job Market Maker. All other trademarks, service marks, and logos used as part of the Products, if any, are the trademarks, service marks, or logos of their respective owners.
2.4. Third Party Websites, Data, or Services
The Products may contain links to or data obtained from third-party websites or services. JMM is not responsible for the accuracy legality, quality, integrity, fitness, reliability, or availability of data and contents provided by other providers, including those that have links from the Products. Accordingly, JMM makes no representation concerning the content of any third-party sites or data to Customer nor does the fact that there is a link on the Products serve as an endorsement, approval, or recommendation of the linked site or its data and these links are provided only as a convenience.
2.5 Customer Data and License
Customer may post, upload, submit, provide, or transmit its content or data to the Products in any form or medium (e.g., text, documents, images, audio content, video content, logos, brand names, trademarks, etc.) including information, content and/or material associated with job openings, job descriptions, candidate requirements, or Customer (collectively, the “Customer Data”). Customer hereby grants to JMM a non-exclusive and fully paid-up license to use, store, copy, modify, display and/or download Customer Data that JMM receives from Customer for the limited purposes of (i) fulfilling the requirements of this Agreement and operation of the Products pursuant to its documentation, (ii) statistical reporting purposes in aggregated, anonymized, and de-identified form, or (iii) to improve and enhance the Products and features that JMM offers.
2.6. Restrictions and Prohibited Use
Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Products; (ii) copy, distribute, link, frame, mirror or otherwise make available any portion of the Products to any third party; (iii) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Products or any related documentation (which shall include displaying the “Powered By Job Market Maker” logo) and link on any Customer pages that contain data from, or access, the Products; (iv) attempt to bypass or tamper with the security, operation of the Products or any of the systems on which the Products are accessed; (v) attempt to access the accounts or data of any other customer.
3. Fees, Payment Terms and Billing
Customer will pay JMM the Fees as set forth on the Order Form. Fees are invoiced in advance of the delivery of services at the frequency identified in the Order Form. The first invoice may also include any Setup or one-time Fees. Customer shall pay all sales, use, value added or other taxes imposed by applicable law. All Fees are non-cancelable and non-refundable.
Unpaid amounts may be assessed a late fee of 2% per month, or the maximum rate permitted by law. JMM may suspend access to Products if Customer fails to make any payments when due; Fees will continue to accrue during such suspension and will be due when Products resume along with any applicable reactivation Fee.
4. Term and Termination
This Agreement will commence on the later of the Effective Date on the order form (if applicable), or the date of first invoice. The Subscription Term of the Agreement will start on the later of the Service Start Date on the order form (if applicable) or the date of first invoice. Unless otherwise documented on the Order Form (if applicable), Renewal Terms of equal duration will start upon the end of the previous Subscription Term (Initial or Renewal as applicable) until either party gives written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Term, or the Agreement is terminated as set forth herein.
4.2. Termination for Cause
Either party may terminate this Agreement for a material breach that is not cured within thirty (30) days of notice of such breach (10 days for non-payment).
4.3. Events upon Termination
Upon termination of this Agreement for any reason: (a) JMM will immediately terminate Customer access (b) each party will promptly cease all use and return or destroy the other’s Confidential Information, (c) Customer will cease use of the Products and pay in full all Fees due upon termination, and (d) if Customer requests, in writing, within thirty (30) days JMM will make available a copy of the information contained in Customer’s account provided that all outstanding Fees have been paid. After thirty (30) days, JMM cannot guarantee that the information in Customer’s account will still be available, and has no obligation to preserve that information except as may be required under applicable law. Sections 4 through 13 and all accrued rights to payments shall survive termination of this Agreement.
5. System Security and Data Privacy
5.1. Authorized Users and Passwords
All access to the Products shall be through a logon and password to a Customer Personnel that has a defined role within the Products. Customer is solely responsible for selecting secure passwords, changing passwords frequently, and maintaining the confidentiality of its logon and passwords. JMM shall not be liable for any losses arising from unauthorized access to the Products and Customer’s account due to Customer’s failure to protect its account through proper maintenance of its logon and passwords. It is the Customer’s responsibility to ensure that logon and password information is not shared between Customer Personnel or with any other third parties.
5.2. Security Measures
JMM will maintain commercially standard security measures for the protection of Customer’s account against accidental or unauthorized access or use. Customer is responsible for notifying JMM of any such unauthorized access to its account. JMM shall take all reasonable steps to prevent or correct any unauthorized access or intrusion into Customer’s account. JMM’s liability for a failure of its security measures shall be to correct the circumstances that lead to the failure or unauthorized access, prevent further intrusions, and use its best efforts to recover any information copied or removed from Customer’s account.
6. Confidential Information / Intellectual Property
6.1. Confidential Information
JMM and Customer acknowledge that during the performance of the Agreement they will have access to certain non-public information of the other party or of third parties that is designated as or should reasonably be understood to be confidential or proprietary and that derives independent value from not being generally known to the public (“Confidential Information”).
Customer’s Confidential Information includes information provided on the Order Form or Customer Data as defined.
JMM’s Confidential Information includes the Products; this Agreement; any prices, price structure, or discounts; service scope definitions; technical or functional documentation; identities of its customers, vendors, partners, and personnel; and any technology used within the Products. Any ideas, suggestions, support requests, or feedback related to the Products, or improvements, corrections, or modifications provided by the Customer to JMM are deemed the Confidential Information of JMM.
Confidential Information does not include (i) information previously known to or independently developed by the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) JMM’s use of information under term (2.5), (iv) aggregated or anonymized information containing no Customer, Customer Personnel, or other personal identifying data, or (v) information received from a third party under no confidentiality obligation with respect to the Confidential Information.
JMM and Customer shall cause its affiliates, employees, agents, and subcontractors (as applicable) to use commercially reasonable efforts and precautions to maintain the confidentiality of the Confidential Information. These precautions will be at least as great as the precautions it takes to protect its own confidential information.
6.4. Intellectual Property
Title to, and all Intellectual Property Rights in, the Products, including JMM Confidential Information in any complete or partial form are retained by JMM or its Licensors. As used herein, “Intellectual Property Rights” means any and all right, title, and interest, including patent applications, patents, copyrights, moral rights, database rights, trademarks, service marks, trade names, or trade secrets, and any and all other intellectual property or proprietary rights recognized or enforceable under any United States federal or state law, rule, or regulation, foreign law, rule, or regulation, or international treaty.
7. Warranties; Disclaimers
(I) THE SUBSCRIPTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, (II) NO WARRANTY IS GIVEN THAT THE SUBSCRIPTION WILL BE UNINTERRUPTED OR FREE OF OMISSIONS, ERRORS, OR DEFECTS, OR THAT ALL ERRORS SHALL OR CAN BE CORRECTED, AND (III) JMM AND ITS LICENSORS EXPRESSLY DISCLAIM ALL CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS, AND/OR NON-INFRINGEMENT. ANY USE OF THE SUBSCRIPTION IS AT SUBSCRIBER’S OWN RISK.
CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS ARE DELIVERED AS SOFTWARE AS A SERVICE WITH MULTIPLE RELEASES PER YEAR. ACCORDINGLY, JMM MAY UPDATE THE PRODUCTS FROM TIME TO TIME, AND AS A RESULT OF SUCH UPDATES SPECIFIC FEATURES, FUNCTIONS, OR OTHER COMPONENTS OF THE PRODUCT MAY BE ADDED, ENHANCED, MODIFIED, IMPROVED, SUBSTITUTED, DISCONTINUED, OR OTHERWISE CHANGED AS FURTHER SET FORTH IN THE RELEASE NOTES OF ANY GIVEN VERSION OF THE PRODUCT.
8. Limitation of Liability
IN NO EVENT SHALL JMM BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED PRODUCTS, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF THE PRODUCTS PROVIDED HEREUNDER, EVEN IF JMM HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO THE PARTIES’ DUTY TO INDEMNIFY UNDER ARTICLE 9 OF THIS AGREEMENT AND WITHOUT LIMITING ANY OTHER RIGHTS, REMEDIES, LIMITATIONS, OR RESTRICTIONS IN THIS AGREEMENT OR UNDER LAW, A PARTY WILL NOT BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY THEORY OF LIABILITY FOR ANY AMOUNT, REGARDLESS OF THE NUMBER OF CLAIMS ALLEGED, IN EXCESS OF ALL SUBSCRIPTION FEES PAID TO JMM DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS FROM THE DATE OF SUCH CLAIMS.
9.1 Infringement Indemnity.
JMM will indemnify, defend, and hold harmless the Customer in connection with any third party claim against the Customer and pay all damages, costs, expenses (including reasonable attorneys’ fees), or that are included in a settlement approved by JMM arising out of a claim that the Products infringe an issued and enforceable patent or copyright of any third party enforceable in the United States. This obligation is contingent upon: (i) Customer’s prompt written notification to JMM of the claim; (ii) Customer’s tender to JMM of the case and settlement negotiations; (iii) JMM’s sole control of the defense and settlement negotiations related to the claim; (iv) Customer’s assistance (at JMM’s expense) in the defense or settlement of the claim; and (v) Customer refraining from making any admission prejudicial to the defense of the claim. In addition to the above indemnity, if the Products are held to be infringing, are accused of infringing, or where JMM believes they may be infringing, JMM may at its expense and option: (1) obtain for Customer the right to continue using such Products; (2) modify or replace such Products with non-infringing Products; or (3) if JMM determines that such remedies are not commercially reasonable, Customer shall immediately cease accessing the Products, the Product License shall immediately terminate, and JMM will return a portion of the Subscription Fee paid for the Products, as prorated over the length of the Term. JMM will not be liable to the Customer if an infringement claim is based upon use of the Products in violation of any term of this Agreement.
9.2 Exclusive Remedies
The remedies stated in this Article 9 of the Agreement are the sole and exclusive remedies of Customer with respect to any claims for infringement related to the Products.
9.3 Customer Indemnification
Customer shall defend, indemnify and hold harmless JMM, its Affiliates and their respective officers, directors, employees, agents, and representatives (collectively, “Indemnified Parties”) from and against all claims, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnified Parties arising out of Customer’s breach of any warranty hereunder, or arising out of any claim by a third party relating to (i) the use of or access to the Products by individuals or entities that are not authorized by the Agreement; or (ii) use of the Products by Customer, its Affiliates or End Users thereof in a manner that is not permitted under this Agreement; or (iii) any claims that the Customer Data infringes, misappropriates, or otherwise violates the intellectual property rights or other rights of a third party.
9.4 Indemnification Procedures
To receive the indemnities contained in this Article 9, the Party seeking indemnification shall promptly notify the indemnifying Party in writing of a claim or suit and provide reasonable cooperation (at the indemnifying Party’s expense) and full authority to defend or settle the claim or suit. The indemnifying Party shall have no obligation to indemnify the Party seeking indemnification under any settlement made without the indemnifying Party’s written consent.
JMM may use Customer’s name and logo to identify Customer as a JMM customer on its websites and as a part of a list of customers in corporate, promotional and marketing literature.
10.2. Export Control
Customer shall only use the Products in compliance with local laws and regulations, and will not export or re-export the Products in violation of any United States or other applicable export laws and regulations.
10.3. Relationship of Parties
The parties to this Agreement are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or to incur any obligation on its behalf.
Neither party will transfer or assign this Agreement or any of the rights hereunder without the prior written approval of the other party, which shall not be withheld unreasonably. Notwithstanding the foregoing: (i) JMM may transfer this Agreement in its entirety in the event of an acquisition, merger or other event involving a change of control, may assign any rights to payment hereunder, and may use service providers to fulfill its obligations hereunder; (ii) Customer may transfer this Agreement in its entirety in the event of an acquisition, merger or other event involving a change of control; provided that the other entity involved in such event is not a competitor of JMM, and provided that the Fees may be subject to recalculation as set forth in the Order Form.
Notices required hereunder shall be effective if delivered by email or courier or delivery service (effective upon receipt), or by first call United States mail, return receipt requested (effective upon receipt), and shall be sent to the addresses shown in the Order Form or as updated by notice.
10.6. Force Majeure
Neither party shall be responsible for a failure or delay of performance caused by any event outside of its reasonable control.
11. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, exclusive of its choice of law rules. Each party to this Agreement submits to the exclusive jurisdiction of the state and federal courts sitting in the County of Charleston in the State of South Carolina, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees.
12. Entire Agreement and Severability
This Agreement constitute the entire agreement between JMM and the Customer pertaining to the subject matter hereof, and supersedes all prior or contemporaneous agreements, representations, service proposals, or arrangements, oral or written.
In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
These Subscription Terms and Conditions were last modified and posted on 4/9/2018.