HireIQ Solutions, Inc.
a. “Candidates”: individuals using the Services to apply for positions with Customer.
b. “Confidential Information”: non-public information other than Trade Secrets, of value to its owner, and any data or information that is a Trade Secret.
c. “Customer Data”: landing pages, customized front ends, text, dedicated pages, text groupings, position descriptions and customized review routines and related items that have been authored and provided by the Customer to enable the Customer-specific use of the Services.
d. “Included Support”: the level of support services (“Support Services”) that is provided by HireIQ at no extra charge to Customer during business hours (Eastern Time) and including telephone and e-mail responses only to “how to” and “why” questions, and resolution of issues that are a result of a persistent and reproducible error (an “Error”). Hours for Support Services are standard customer service hours, with a list of excluded holidays for the year published in advance.
e. “Intellectual Property Rights”: any and all now known or hereafter known tangible and intangible patent, copyright, moral, trademark, or other intellectual property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, or divisions or reissues thereof, appertaining to a Party’s Proprietary Information, as of the Effective Date or thereafter in force (including any license or other rights in the foregoing).
f. “Proprietary Information”: collectively, and without regard to form, (i) any third-party information which either Party has agreed to treat as confidential, (ii) information regulated by applicable state or federal law concerning disclosure or use, and (iii) Confidential Information and Trade Secrets. .
g. “Services”: the services described in Section 3.2.
h. “Services Fee(s)”: the fee or fees for Services in the Initial or Renewal Term, as specified in the Services Provider Agreement and any applicable addenda to this Agreement.
j. “Term”: collectively, the Initial Term and any Renewal Term, as such terms are defined immediately below:
i. Initial Term: the initial minimum Agreement term named as Term in the Services Provider Agreement, which shall begin on the Effective Date.
ii. Renewal Term: each respective renewal period as specified in the Services Provider Agreement or otherwise following the end of the Initial Term, each of which shall come into effect automatically and consecutively unless this Agreement is prior terminated in accordance with Section 6.2.
k. “Trade Secrets”: information which qualifies as a trade secret under applicable law.
l. “User Data”: any personally identifiable information, User profiles, records, information, databases, Candidate questions, information regarding page views or clickstreams, information about User’s activity, and summaries thereof, generated, developed or created by the interaction with and use by Users of the Services, and all other information about the User(s) that is machine generated or generated by a User’s use of the Services.
m. “Users”: Customer personnel authorized to access the Services, Candidates and others authorized to use or access the Services.
n. “Website”: the user interface, functionality, data and information made available on pages, operated and maintained by or for HireIQ at such web addresses as the Company may select from time to time.
2. Payment terms
a. Services Fee. The Services Fee indicated in the Services Provider Agreement will be invoice payable upon execution unless otherwise provided in the Services Provider Agreement.
b. Payment. Customer shall pay its Services Fees or any other fees hereunder by (i) automated bank transfer (ACH) net thirty (30) days after invoice; (ii) after acceptance by HireIQ of a credit application, by check net thirty (30) days after invoice, or (iii) credit card immediately after completion and HireIQ acceptance of the HireIQ credit card authorization form.
c. Billing Disputes. Customer must advise HireIQ in writing of any billing dispute within thirty (30) days after the due date of any payment due under this Agreement and failing such notice the billing shall be deemed accepted. The advice must contain the monetary sum in dispute and any and all amounts not in dispute must be paid on time.
2.2 Taxes and Other Charges. All amounts payable specified herein are net amounts to be received by HireIQ and are exclusive of, and Customer shall be responsible for and shall pay, any and all taxes, duties, and charges incurred in the performance of this Agreement, wherever incurred (but excluding corporate income taxes of HireIQ), and whether payable directly by Customer or indirectly through HireIQ in compliance with applicable law. All such obligations shall be Customer’s responsibility, and are not subject to set-off, reduction, or deduction for any reason whatsoever. Customer agrees to cooperate fully with and pay over to, HireIQ any additional sums required to replace any amounts deducted or withheld.
2.3 Late Payment. Time is of the essence in all payment terms. Any amounts not paid when due shall bear interest at a nominal rate of eighteen percent (18.0%) per annum, or the maximum legal rate if less, commencing with the payment due date. HireIQ shall be entitled to withhold performance if an account is not current and may pursue all collection remedies where necessary. Customer shall reimburse HireIQ for all costs of collection, including reasonable attorneys’ fees and any costs to reinstate the activity of an account. As to any amounts that HireIQ has, in its discretion, allowed to be paid over a period of time rather than in a lump sum, the full and unamortized remaining amounts owed shall accelerate and become immediately due upon any (a) breach in payment obligations, or (b) termination of this Agreement by Customer, unless otherwise expressly agreed herein.
2.4 Changes. Except during the Initial Term, HireIQ may change the Services or the prices (which may take into account the relevant price index) and will notify Customer of any such changes thirty (30) days prior to their effectiveness.
3. INSTALLATION; CUSTOMER USE
3.1 User Set-Up. HireIQ shall set up accounts and provide system access for each of Customer’s authorized Users, register such and give Customer access and establish security protocols for all such Users. HireIQ’s ability to provide the Services to Customer depends on the integrity and Customer’s proper use of its account. Accordingly, Customer agrees that: (i) Customer will not allow access to or use of the Services (or any portion thereof) by anyone other than its authorized Users or for any purpose prohibited under this Agreement; (ii) Customer agrees to keep confidential and not disclose to any third parties any usernames, passwords and account numbers associated with the Services; (iii) Customer will ensure that all its authorized Users comply with the terms of this Agreement; (iv) Customer will provide all reasonable assistance in enabling the set-up and use of the Services and (v) Customer will be responsible for any violation of this Agreement by any of its authorized Users, and for any unauthorized use of the usernames, passwords, or other security credentials associated with Customer’s account. Customer further agrees to notify HireIQ promptly if Customer becomes aware of any loss or theft or unauthorized use of any of passwords, usernames, and/or account numbers, or of any other suspected or alleged violation of this Agreement, and Customer will cooperate with HireIQ in any investigation or enforcement efforts. In addition, Customer agrees to maintain current and accurate information regarding the identity of each of its authorized Users (and their corresponding username and password), and Customer agrees to make that information available to HireIQ upon request. Without limiting any of HireIQ’s other rights and remedies, HireIQ may suspend or terminate any authorized User’s access to the Services upon notice to Customer.
3.2 Services. HireIQ shall provide the following Services: (a) a minimum of one URL by which the Services can be accessed via the Internet; (b) maintenance of the Services; and (c) such regular back-up of as is reasonable and necessary, with maintenance of a complete and current copy of the Website stored at a remote location.
4. CONFIDENTIALITY AND OWNERSHIP
4.2 Customer Ownership. Customer owns and shall retain all right, title and interest in and to Customer Data, and other Proprietary Information of Customer and all Intellectual Property Rights related thereto.
4.3 Confirmation of Assignments. To the extent necessary or advisable, each Party shall execute all documentation, instruments and assignments requested by the other Party to consummate or confirm the ownership interest in any Intellectual Property Rights ascribed to a Party by this Agreement.
4.4 Nondisclosure. Customer acknowledges that the Services and other information provided by HireIQ to Customer hereunder represent Proprietary Information of HireIQ, and that the Customer Data may be or may contain Proprietary Information of Customer. Each Party shall (i) hold the Proprietary Information of the other Party in confidence, applying commercially reasonable measures but never less than a reasonable standard of care, (ii) not, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information of the other Party to any third party, subject to the provisions of subsection (iv) below, (iii) not make use of the Proprietary Information other than for the permitted purposes under this Agreement, and (iv) disclose the Proprietary Information only to its respective representatives requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with those contained in this Section 4.4. Each Party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Section 4.4, and shall exercise due care to monitor and ensure compliance with its provisions. The nondisclosure and confidentiality obligations set forth in this Section 4.4 shall survive termination of this Agreement for any reason, and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof as a trade secret under applicable law, and with respect to Confidential Information for a period of five (5) years after termination of this Agreement.
5. DISCLAIMERS; REPRESENTATIONS; LIMITATIONS OF LIABILITY
5.1 Disclaimer of Warranties. Customer agrees and acknowledges that the Services are provided “AS IS”, and that HireIQ makes no (and, except as provided herein, hereby disclaims all) warranties, representations, and conditions of any kind whatsoever, whether written or oral, express, implied, or statutory, including any implied warranties of merchantability, of title, against infringement, or fitness for a particular purpose with respect to the use, misuse, or inability to use the Services (or any component(s) thereof), or any other products or services provided by HireIQ or its licensors, and their quality, SEQUENCE, timeliness, completeness, accuracy or reliability (INCLUDING THE RELIABILITY OR LEGALITY OF ANY CANDIDATE QUESTIONS SUPPLIED BY HIREIQ). HireIQ IS NOT RESPONSIBLE FOR (A) ERRORS OR OMISSIONS IN THE DELIVERY OF THE SERVICES, (B) ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER, candidates, OR ANY OTHER PERSON IN RELIANCE UPON THE SERVICES, including but not limited to any transfer, trade, transaction or decision of any nature OR (C) RESULTS OBTAINED FROM SUCH RELIANCE OR DECISIONS.
5.2 HireIQ Representations. HireIQ has full right, power and authority to enter into this Agreement and to grant the rights being granted hereunder. HireIQ also represents and warrants to Customer that will employ commercially reasonable efforts in accordance with generally accepted industry practices to ensure that the Services are secure and protected.
5.3 Limitation of Liability. HireIQ’s maximum liability arising out of or in any way connected hereto shall be, in the aggregate, limited to Customer’s direct actual damages, not to exceed the total Monthly Fees actually paid to HireIQ for the twelve (12) MONTHS IMMEDIATELY preceding the month in which a claim arises hereunder, reduced by any amount due to HireIQ by Customer. In no event shall HireIQ or any of its officers, directors, employees or representatives, be liable: (A) to any third party for damages of any kind or nature or in any manner whatsoever, regardless of the cause of action; or (B) for any special, indirect, incidental or consequential damages, loss of profits, or loss of goodwill, even if HireIQ has been notified of the likelihood of such damages occurring. It is acknowledged that limitations of liability may not apply in cases of bodily injury, death or fraud, and in such instances this limitation shall apply to the fullest extent of applicable law.
5.4 Services Guide.
a. HireIQ provides the Services to guide the Customer as to the suitability and aptitude of Candidates as part of an overall recruitment or development processes. Where reports are provided, they represent opinions based on test results and must not be relied upon as statements of fact. For clarity, HireIQ does not recruit or select Candidates or carry out related activities.
b. HireIQ has made reasonable commercial efforts to ensure that the Services avoid unlawful discrimination. However, HireIQ cannot control its Customers’ acts or omissions (or those of their contractors) during the general recruitment or development processes which may lead to claims. As such, HireIQ cannot be held responsible for the legality of any questions or such acts or omissions, including those relating to the selection of Candidate questions, the use of such questions, interpretation of results and any resulting Customer decisions.
6. Term and Termination
6.1 Term. This Agreement shall commence on the Effective Date and automatically renew for a Renewal Term of twelve months, unless another length of Renewal Term is specified on the Service Provider Agreement, at the end of the Initial Term or the current Renewal Term, as applicable, unless earlier terminated as provided below.
6.2 Termination. This Agreement may be terminated only as follows:
a. By either Party with written notice to the other Party thirty (30) days prior to the end of the Initial Term or any Renewal Term, with the termination to be effective on such term-end date.
b. By either Party, if the other Party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof (except with respect to Customer’s payment obligations, in which case HireIQ shall be entitled to immediately suspend the Services or terminate this Agreement in HireIQ’ discretion);
c. By HireIQ if: (i) Customer becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign; or is liquidated, voluntarily or otherwise; (ii) any substantial change takes place in Customer’s management, ownership, or control, resulting in management, ownership, or control of Customer by a competitor of HireIQ, or by a company or other entity with a division or subsidiary that is a competitor of HireIQ; and
d. By Customer if HireIQ becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise.
6.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason whatsoever:
a. All rights bestowed by this Agreement shall immediately cease, except as otherwise provided hereunder, and Customer shall immediately cease use of the Services and return to HireIQ all copies of all HireIQ Proprietary Information, and provide HireIQ written certification thereof; and
b. All terms which by their content or context are intended to survive termination or expiration of this Agreement, including Sections 2, 4, 5, 6, 7, 8, 11.1,11.5, 11.6, 11.7, 11.8,11.9, 11.10, and 11.12, shall so survive in full force and effect.
c. At the end of the ninety (90) day Notice Period, or thirty (30) days subsequent to the effective date of a termination for any other reason, HireIQ shall be free to discard Customer Data or back-ups, provided that the back-up of the database portion of Customer Data may be provided to the Customer during such time frame in accordance with the current charges, and provided further that the account is current in the payment of all fees and charges in accordance with this Agreement..
7.1 Customer Indemnity. Customer shall indemnify and hold HireIQ, its affiliates and subsidiaries, and their respective directors, officers, employees, shareholders and representatives, harmless from and against any claims, damages, losses, liabilities, causes of action or injuries, together with all costs and expenses, including penalties, interest levied, reasonable attorneys fees and court costs (collectively, “Claims or Losses”), arising out of or resulting from third-party allegations concerning:
b. any claim that (i) the use of the Services, or (ii) the Customer Data or any data or materials generated, selected or provided by Customer (or Candidates, employees or representatives), as a result of this Agreement violates or misappropriates the Intellectual Property Rights of a third party.
7.2 HireIQ Indemnity. HireIQ shall indemnify and hold Customer, its affiliates and subsidiaries, and their respective directors, officers, employees and representatives, harmless from and against any Claims or Losses arising out of or resulting from third-party allegations that the Services infringe or misappropriate the Intellectual Property Rights of such third party; provided that, the sole remedy available from HireIQ in such instance shall be, at the sole expense and discretion of HireIQ: (a) procurement of the right to continue using the Services for Customer; (b) replacement of the Services with services that are substantially equivalent as to their functionality and non-infringing; or (c) modification of the Services to make them non-infringing. HireIQ shall not have indemnification liability to the extent that damages could have been avoided because Customer used the Services in a manner not specifically authorized under the Agreement.
7.3 Process. A Party’s indemnification obligation under this Section 7.3 is subject to: (a) the Party to be indemnified (the “Indemnitee”) providing the Party who shall be responsible to undertake the indemnity obligation (the “Indemnitor”) with prompt written notice of the initial claim or proceeding relating thereto; (b) the Indemnitee permitting the Indemnitor to, at Indemnitor’s expense, select legal counsel and defend, compromise, or settle the claim or proceeding, provided that no legal or economic rights of the Indemnitee will thereby be prejudiced; and (c) Indemnitee providing Indemnitor with commercially reasonable information, assistance, authority and cooperation to enable Indemnitor to defend, compromise or settle the claim or proceeding in accordance with the terms of this Section 7.3.
8. DISPUTE RESOLUTION Except for claims brought under Section 5 or Section7, HireIQ and Customer shall arbitrate any dispute resulting from or related to this Agreement. Any such arbitration shall be in accordance with the commercial rules of Judicial Arbitration and Mediation Services (“JAMS“) in effect at the time the dispute is filed, except to the extent such rules conflict with this Agreement. The cost of the arbitration will be borne equally by the Parties. Any such arbitration shall be held in Atlanta, Georgia USA and directed by JAMS. Notwithstanding the foregoing or the then-current specified commercial rules of JAMS, the following shall apply with respect to the arbitration proceeding: (a) the arbitration proceedings shall be conducted by one (1) arbitrator selected by the parties, provided that, if the parties fail to make such designation within five (5) days after receipt by JAMS of the demand for arbitration, JAMS shall make the appointment in its sole discretion of an arbitrator with a minimum of ten (10) years experience and knowledge of ASP agreements); (b) the arbitrator will apply Georgia law and will have no power to alter any provision of this Agreement nor to determine any matter, except as provided in this Section 8. The arbitrator will not be bound by legal rules of procedure, and may receive evidence in any manner designed to achieve an equitable result for the Parties; and (c) the existence, subject, evidence, proceedings and rulings resulting from the arbitration proceedings shall be deemed Confidential Information, and shall not be disclosed by either Party, their representatives, or the arbitrator, except: (i) to the professional advisors of each of the Parties; (ii) in connection with a public offering of securities of either of the Parties; (iii) as ordered by any court of competent jurisdiction; or (iv) as required to comply with any applicable governmental statute or regulation. All offers, promises, conduct, and statements, whether written or oral, made in the course of negotiation or arbitration hereunder are confidential. Notwithstanding, and in addition to, the provisions of Section 11.7, either Party may seek equitable relief in arbitration prior to arbitration on the merits to preserve the status quo. The Parties hereto hereby waive their respective right to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by any Party against another on any matter whatsoever relating to, resulting from, arising out of, or in any way connected with this Agreement, or any amendment or breach hereof, including, without limitation, any claim or injury or damage, or the enforcement of any remedy under any law, statute, or regulation, emergency or otherwise, now or hereafter in effect.
HireIQ will provide Customer Data back-ups to Customer in a digital form and format as reasonably requested, and in HireIQ’s sole discretion, by and at the expense of Customer. The fee for this shall be at the then current rates, with Customer to be notified if additional efforts are required. The provision of such digital back-up copies will include HireIQ deriving and creating a Customer-specific database of Customer Data in standard format chosen at the sole discretion of HireIQ from the HireIQ system or back-up tape, if necessary. Customer data shall be retained by HireIQ and reasonable access made available to Customer for three (3) years after expiration or termination of this Agreement.
Each Party shall obtain, and maintain throughout the Term, insurance policies with coverage and limits commensurate with those which would be ordinarily carried by entities of similar size engaging in substantially similar business activities.
11.1. Assignment. Subject to the terms of this Agreement, either Party may assign this Agreement without the other’s consent: (a) to any existing or future affiliated entity; (b) in the case of a merger, acquisition, divestiture, consolidation or corporate reorganization where there is a change in the holders of the majority ownership or voting rights in the entity; or (c) in connection with the sale of all or substantially all of the assigning Party’s assets. Other assignments shall require prior written consent of the other Party, which shall not be unreasonably withheld. Any other assignment or attempted assignment will be a material breach of this Agreement, and shall be null and void. This Agreement will inure to the benefit of and be binding upon the successors and permitted assigns of the Parties.
11.2 Force Majeure. No Party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that it is unable to perform due them to any cause or circumstance beyond the reasonable control of such Party, including, without limitation, acts of God, terrorism, fire, flood, storms, earthquake, internet provider service interruptions, strike or other labor dispute (in any case, a “Force Majeure Event”). The Party affected by a Force Majeure Event shall promptly notify the other Party in writing, and take reasonable steps to resume performance with the least possible delay.
11.3 Authority. Each Party possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder.
11.4 Amendments. This Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both Parties.
11.5 Governing Law. Subject to Section 8 hereof, this Agreement shall be in all respects governed by the laws of the State of Georgia, without reference to its conflicts of laws principles. Each Party submits to the exclusive jurisdiction of the courts of the State of Georgia and the United States District Court for the Northern District of Georgia, and expressly waives any objection such Party may have to venue, including, without limitation, the inconvenience of such forum, in any of such courts.
11.6 Injunctive Relief. In the event Customer is in breach, or threatens to breach any covenants, of this Agreement, Customer acknowledges and agrees that HireIQ will be greatly damaged, and that such breach will be irreparable and the resultant damages difficult to quantify; therefore, notwithstanding the provisions of Section 8, HireIQ may apply to any court of competent jurisdiction to determine whether relief shall be granted to HireIQ for injunctive or other equitable relief to restrain such breach or threat of breach, without impairing, invalidating, negating or voiding HireIQ’ rights to relief.
11.7 Compliance with Laws. Each Party shall comply with all applicable laws, ordinances, rules and regulations of governmental authorities.
11.8 Notices. All notices under this Agreement shall be given in writing and shall be delivered either by hand, by internationally recognized overnight courier, fees pre-paid by sender, or electronic mail (E-Mail), addressed to the receiving Party at the address set forth at the signature blocks below, or at such other address as may be designated from time to time. Notices shall be deemed delivered upon the earlier of actual receipt if by hand, twenty-four (24) hours after being sent by E-Mail or three (3) days after deposit of such notice, properly addressed and delivery fees paid, with the overnight courier.
11.9 Severability and Waiver. If any provision of this Agreement is determined to be invalid by any court of final jurisdiction, then it shall be replaced with terms having as nearly as possible the same economic effect, and the remainder of the Agreement shall continue to be binding and enforceable as if the invalid provision had been expunged. In addition, the court is hereby authorized to enforce any provision of the Agreement that the Court otherwise deems unenforceable, to whatever extent the Court deems reasonable and appropriate, rather than invalidating the entire provision. Notwithstanding the terms of this Section 11.9, the Parties desire and intend that each provision of this Agreement be enforced, and waive any ability to object to any provision hereof. Except where otherwise provided, the waiver or failure of either Party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.
11.11 Publicity. HireIQ and Customer may use, with prior written consent from both Parties, which consent may not be unreasonably withheld, the name of HireIQ or the Customer and each Parties’ logos in lists of vendors, suppliers or customers and other marketing materials; refer to HireIQ or the Customer in new vendor or customer announcements or press releases and identify HireIQ or Customer describing Customer’s use of the Services.