The Parties. Client and applicantONE (“AO”) are referred to individually as “Party” and together as the “Parties.”
The Agreement. The Membership Agreement, and all exhibits, schedules and attachments to the Membership Agreement including, without limitation, these Terms and Conditions, are referred to individually and together as the “Agreement.”
Right to Access to the Software. Subject to the terms of the Agreement, AO grants to Client a limited, non-transferable, non-exclusive right to access and use AO's proprietary applicant tracking system software ("Software") via a web browser. The Software is made available to Client as a hosted service. AO will host and retain physical control over the Software and make such computer programs and code available only through the Internet for access, use and operation by Client through a Web-browser. No provision under the Agreement shall obligate AO to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code or any other form.
Fees and Billing. Upon execution of the Agreement, the pricing and fees specified in the Membership Agreement will be invoiced in full for the one (1) year term. The invoice is due and payable in full upon Client’s receipt. Subsequent invoices are due and payable at the commencement of the subsequent one (1) year period(s). Payments are non-refundable.
Term, Automatic Renewal and Notice of Termination. The Agreement shall be for a one (1) year term, and shall renew automatically upon the same terms and conditions set forth in the Agreement, including the fees and pricing set forth in the Membership Agreement, for subsequent one (1) year periods unless Client or AO provides written notice of termination at least sixty (60) days prior to the expiration of the then-current term.
Billing Information. Client agrees to provide to AO on the Membership Agreement accurate and complete billing and contact information, Client’s legal name and company name, street address, e-mail address, and telephone number, and to update this information in writing within 10 days of any changes.
Fees and Taxes. During the term of the Agreement, Client agrees to pay AO based on the fees and pricing in the Membership Agreement. Unless otherwise specifically provided in the Membership Agreement, fees are non-refundable. All payments, fees and other charges payable by Client to AO under the Agreement are exclusive of all applicable taxes including, without limitation, federal, state and local. Client agrees to bear and be responsible for the payment of all such taxes.
Delinquent Payment. In the event that Client’s account is delinquent, AO reserves the right to suspend Client’s access to the Software, with no liability to Client for this suspension, until such amounts are paid in full. For credit card payments, an account will be considered delinquent if Client’s credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid thirty (30) days following the billing cycle. Client agrees that AO may impose a charge to restore archived data from delinquent accounts. Unpaid charges (except those charges under reasonable and good faith dispute) are subject to interest of 1.75% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including without limitation reasonable attorneys’ fees.
Restrictions. Except as may be expressly provided elsewhere in the Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; modify, translate, or create derivative works based on the Software, or authorize any third party to do so; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Because the Software is proprietary, Client agrees not to publish or disclose to third parties any evaluation of the Software without AO's prior written consent.
Ownership. Client retains all right, title and interest to any and all information provided, inputted or uploaded to the Software by Client, a Client candidate and/or employee, or by AO on Client’s behalf. AO has no right, title or interest in any personally identifiable information related to Client’s candidates or employees. AO shall retain all right, title and interest in and to the Software, the documentation for the Software, and all modifications and/or enhancements to the Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether Client has provided input regarding such modifications and/or enhancements. Client acknowledges that AO will retain all right, title and interest to transactional and performance data related to use of the Software which AO may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal Client’s identity, any of Client’s Confidential Information or any personally identifiable candidate or employee information that belongs to Client. Custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for Client by AO (“Deliverables”) as required by a statement of work are hereby licensed, solely for Client’s internal use, for the term of the Agreement. AO retains ownership and may reuse any Deliverables, provided that such use does not reveal Client’s identity or Client’s Confidential Information.
Equipment. Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Software, and for paying all third-party access charges, if applicable, incurred while using the Software. AO reserves the right to make changes to its policies, procedures and practices and to make changes to its hosting and technical infrastructure during the term of the Agreement as deemed reasonably necessary by AO to provide service to AO’s customers. Such changes will not materially degrade the performance of the Software or materially decrease the functionality of the Software.
Prohibited Uses. Client may not use the Software for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list. Client agrees not to transmit, or permit Client’s employees to transmit, through the Software, any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Client agrees to only use the Software for lawful purposes, in compliance with all applicable laws including, without limitation, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limitation) storing, distributing or transmitting any unlawful material, or attempting to compromise the security of any networked account or site. Client agree to defend, indemnify and hold AO harmless against any claim or action that arises from Client’s use of the Software in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.
Third Party Contractors. Client may make the Software available for use by third-party contractors used by Client solely to assist in Client’s applicant tracking efforts (“Third-Party Contractor”), within the limits of the usage rights and restrictions set forth in the Agreement. Client is responsible for the use of the Software by such Third-Party Contractors, including compliance with each term of the Agreement to the same extent as if the Third-Party Contractor were Client’s employee. Client agrees that any password provided to a Third-Party Contractor will be disabled immediately upon conclusion of such Third-Party Contractor’s work for Client.
Technical Tests, Scans, Reviews, Etc. Client shall not and shall not allow anyone working on Client’s behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without AO’s prior written consent, or (ii) attempt to access the data of another AO customer. Client shall not and shall not allow anyone working on Client’s behalf to use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the AO Software. If Client or anyone working on Client’s behalf uses a Robot or a similar program or tool for the purposes listed above or any other purpose, it shall constitute a material breach of the Agreement. Client shall indemnify and hold AO harmless without limitation from any damages, losses, claims, costs, expenses or liabilities arising from downtime, production incidents or other technical problems arising during a time period in which Client is in breach of this provision or as a result of Client’s breach of this provision, including without limitation, damages or credits to AO customers arising from downtime and costs, including third party costs, related to the correction of such downtimes, production incidents or other technical problems.
Invoice Dispute and Audit of Use of Software. To dispute an invoice, Client must contact AO in writing no later than thirty (30) days after the billing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Client agrees to retain complete, clear and accurate records regarding Client’s use of the Software and agree to submit to a reasonable audit of this information upon reasonable notice by AO not more than once per calendar year.
Publicity. Client agrees that AO can disclose the fact that Client is a customer of AO. During the term of the Agreement, and unless otherwise set forth in the Membership Agreement, Client grants AO the right to reference Client, along with Client’s logo, on the customer section of AO’s public web site and/or AO’s marketing and promotional material, until such time as Client’s use of the Software is discontinued.
Data Backup. AO shall use all reasonable efforts to protect Client’s data behind a secure firewall system, to conduct regular data backups, and to store full-system backups in a separate, fire-safe facility.
Passwords. Client will choose or be given all applicable passwords to use in connection with the Software. Client is responsible for maintaining the confidentiality of Client’s passwords and account (including, if applicable, the passwords and accounts of each user accessing the Software by means of an account established by Client). Furthermore, Client is responsible for any and all activities that occur under Client’s account (including, if applicable, the accounts of each user accessing the Software by means of an account established by Client). Each password may be used by one individual named person only. Passwords may not be used concurrently or shared by more than one individual named person.
Security. Client shall notify AO immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each user accessing the Software by means of an account established by Client) or any other breach of security. AO will not be liable for any loss or damage arising from Client’s failure to comply with these requirements.
Confidential Information. By reason of the relationship hereunder, each party will have access to certain information and materials concerning the other party’s technology, business, plans, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties or used for competitive purposes by the other party (“Confidential Information”). Confidential Information of AO shall include, without limitation, information specifically designated as confidential, the features and functions of the Software that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to Client, the commercial terms (including pricing) of the Agreement, statements of work, schedules, addenda or amendments to the Agreement, performance and security test results (whether conducted by AO or Client), and any other proprietary, financial or business information supplied to Client by AO. Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to 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) information which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of the Agreement.
Termination. Client or AO may terminate the Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of the 30-day period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, any account which is suspended for more than thirty (30) days due to delinquent payments may be terminated, without notice to Client and without any obligation on the part of AO to maintain, store or return any of Client’s data or data residing in Client’s instance of the AO Software. If Client terminates the Agreement for cause pursuant to this section, AO shall refund to Client the prorated amount of the fees prepaid by Client that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term. Upon termination of the Agreement for any reason, (i) the license will terminate, and Client, and any user accessing the Software by means of a company account, if applicable, will cease to use or have access to the AO Software; and (ii) except where such termination is due to delinquent payment, Client may request a copy of the most recent back-up of Client’s data. Fees may apply to retrieve data from back-ups. AO may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of the Agreement. Delinquent accounts must be brought to good standing in order to receive data.
Survival. Each provision of the Agreement reasonably intended by its terms to survive termination or expiration of the Agreement shall so survive.
Warranty. AO represents, warrants, and covenants that the Software will perform substantially in accordance with any user instructions, manuals, or technical requirements documents that are generally provided by AO in connection with the Software. In the event of a breach of the foregoing warranty, AO’s sole obligations, and Client’s sole remedy, shall be, at AO’s option, to use commercially reasonable efforts to correct the Software or replace the Software free-of-charge.
Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED TO CLIENT "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND AO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CLIENT. AO DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CLIENT’S RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM CLIENT’S USE OF THE SOFTWARE.
Limitation of Liability. EACH PARTY’S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY CLIENT TO AO FOR THE SOFTWARE IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. NEITHER PARTY SHALL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE FOR THE SOFTWARE), WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE CERTAIN EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CLIENT.
Additional Terms. The Agreement is between AO and Client, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Software by means of an account established by Client). The failure of either party to exercise any right provided for herein will not be deemed a waiver of any other rights hereunder. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Client may not assign, transfer, or sublicense the Agreement except with AO's prior written consent. The Agreement shall be governed and construed under the laws of the State of California without regard for the conflict of laws provisions thereof. Each Party agrees to submit to the exclusive jurisdiction of the courts located in the County of Los Angeles and waives any right it may have to challenge the appropriateness of such forum. Client and AO agree that any cause of action arising out of or related to the Software or the Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous or contemporaneous written and/or oral agreements, communications and other understandings relating to the Software and/or the Agreement, and that all modifications to the Agreement must be in writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of the Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys' fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed by the receiver, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The Agreement may be executed in one or more counterparts and may be exchanged by facsimile or electronically scanned copy or photocopied, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.
AO Support. Client may contact AO support at (888) 327-6511. AO support is available 8:00 a.m. to 8:00 p.m. (Eastern time), Monday through Friday, excluding holidays.
Client Responsibilities. Client shall provide AO a list of its administrative users, standard users and contacts, along with user permissions. If any error or problem arises, Client shall cooperate and work with AO and provide all reasonably requested information to enable AO to reproduce, troubleshoot and resolve the error. Client shall designate at least one primary IT contact and one backup IT contact, which shall be the primary IT contacts for AO.