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COMPANY ACCESS SERVICE AGREEMENT

THIS COMPANY ACCESS SERVICE AGREEMENT (this “Agreement”), effective as of the date of execution of the Company Access Purchase Order (the “Effective Date”), is by and between HIREOLOGY, INC., (“Hireology”) and Customer (“Customer”) identified in any Purchase Order (as defined below) referencing this Agreement. The parties hereby agree as follows:

1.              AGREEMENT. This Agreement includes and incorporates by reference all of the following: (a) any separate written or online purchase order between Customer and Hireology and all exhibits and schedules thereto (each, a “Purchase Order”), (b) the terms and conditions of Hireology’s website Privacy Policy (which can be found at http://www.hireology.com/privacy-policy) (c) the terms and conditions of Hireology’s Terms of Use (which can be found at http://www.hireology.com/terms-of-use). The terms and conditions of this Agreement shall govern the Services (as defined herein) to be provided by Hireology under any Purchase Order entered into between Customer and Hireology, as though the provisions of this Agreement were set forth in their entirety within such Purchase Order, and so that each Purchase Order and this Agreement shall be considered one, fully integrated document and agreement.

IF CUSTOMER IS CONSIDERING THIS AGREEMENT AND THE PURCHASE OF THE SERVICES ONLINE, THEN BY SUBSCRIBING TO THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CUSTOMER MUST DECLINE TO SUBSCRIBE OR TERMINATE THEIR SUBSCRIPTION AND CUSTOMER MAY NOT USE OR ACCESS THE SERVICES OR SYSTEM.

2.              DEFINITIONS.

2.1           “Background Materials” means all intellectual property and proprietary rights of Hireology (including, without limitation, ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, copyrights, patents, trademarks, service marks, trade dress, trade secrets and other technologies and information) that are used by Hireology in providing the Service and Results (including any correction, improvement, extension or other modification to the Service made, created, conceived or developed by or for Hireology, including at Customer’s request or during the performance of Professional Services during the Term (as defined in Section 7.1)).

2.2           “Content” means the audio and visual information, Documentation, software, products, and services contained or made available to Customer in the course of using the Service.

2.3           “Customer Data” means all information, data and other content provided by Customer or its Representatives for Customer’s benefit in connection with its authorized use of the Service.

2.4           “Documentation” means the user guide, help information and other documentation regarding the Service that is provided by Hireology to Customer in electronic or other form.

2.5            “Hireology Properties” means the Service, System, Documentation, Content, Background Materials, Compiled Data (as defined in Section 6.5) and Reports (as defined in Section 6.5).

2.6           “Representatives” means Customer’s employees, agents, contractors, suppliers, customers, and other third parties authorized by Customer to access the System for Customer’s benefit.

2.7           “Results” means the work products resulting from the Service that are (i) delivered to Customer by Hireology through the System and (ii) based solely on the Customer Data. For the sake of clarity, Results shall expressly exclude all Hireology Properties.

2.8           “Service” means the interview and selection management service hosted by Hireology and provided to Customer under this Agreement, as more specifically identified in the Purchase Order.

2.9           “System” means Hireology’s interview and selection management system that is hosted by or for Hireology and accessed by Customer, Customer’s Representatives and Hireology to provide the Service to Customer, as such system may be updated from time to time.

3.              SERVICE.

3.1           Start Up. Each party will provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Customer’s use of the Service (including implementing any interface or transaction logic to which both parties agree).

3.2           System. Subject to all terms and conditions of this Agreement, Hireology will provide Customer with access to the System. As part of the implementation process, Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer may use the administrative user name and password to create subaccounts for its employee users and for its Representatives (each with unique login IDs and passwords).Customer shall be responsible for the acts or omissions of any person who accesses the System using passwords or access procedures provided to or created by Customer. Hireology reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement or that have been inactive for a period of six (6) consecutive months.

3.3           Access Grant. Subject to all terms and conditions of this Agreement, Hireology grants Customer a nonexclusive, nontransferable and nonsublicensable right and license to (a) access and use the Service through a web-based interface, solely for Customer’s internal business purposes, and (b) use the System in connection with the Service. The System is made available to Customer solely as hosted by or on behalf of Hireology, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the System or any software. Customer’s access and use of the Service and the System shall comply with all other conditions set forth in the Purchase Order (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses).

3.4           Representatives. Customer may grant access to the Service to the number of authorized Representatives as set forth on the Purchase Order. Each authorized Representative shall access and use the Service (i) in accordance with the terms of this Agreement, and, (ii) when applicable, through a unique and reasonably secure username and password. The Service allows Customer to grant different levels of access to Customer Data, to different Representatives, as described in more detail in the Purchase Order. It is Customer’s responsibility to designate the applicable access to be granted to each Representative. Customer shall cause all Representatives to comply with all obligations of Customer hereunder, to the extent applicable to Representatives. Customer’s failure to cause a Representative to comply with the terms of this Agreement or any uncured Representative noncompliance shall constitute a material breach of this Agreement by Customer. Except for Customer’s system administrators where reasonably necessary for administrative or security purposes, no Representative may use the username/user identification or password of any other Representative.

3.5           Customer Data. Customer hereby grants Hireology a nonexclusive and royalty-free right and license to access, copy, process and use the Customer Data, solely for the purpose of performing the Service. Customer agrees that (a) the Service depends on the availability of the Customer Data and (b) Hireology will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data.

3.6           Storage. Customer may store unlimited Customer Data and Results through the Service and System that are reasonably related to the scope of this Agreement.  Hireology reserves the right to establish or modify its general practices and limits relating to storage of Customer Data and Reports.

3.7           Customer Systems. Customer is solely responsible for providing (a) all equipment, subscriptions and credentials necessary for Hireology to receive the Customer Data, (b) all modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the System at its facility and (c) all corresponding backup, recovery, network security and maintenance services (collectively, “Customer Systems”). Customer shall ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation. For the sake of clarity, in no event will Customer Systems include any Hireology Properties.

3.8           Excluded Events. Hireology will not be liable for any delay or failures in the System, Service, or any other problems which are related to (a) act or omission of Customer or any Customer Representative, including any delays in their performance or cooperation with respect to the obligations set forth in this Agreement (including its exhibits), (b) the Customer Data or Customer Systems, (c) any satellite, telecommunications, network or other equipment or service outside of Hireology’s facilities or control or (d) unauthorized access, breach of firewalls or other hacking by third parties (each, a “Excluded Event”).

3.9           Restrictions.

(a)            Customer is responsible for all activity occurring under its Representatives’ accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Customer’s use of the Service, System and Results, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall: (i) notify Hireology immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Hireology immediately and use reasonable efforts to stop immediately any copying or distribution of any Hireology Property that is known or suspected by Customer or its Representatives; and (iii) not impersonate another Hireology user or provide false identity information to gain access to or use the Service or System.

(b)            Customer may use the Service only for Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or System or the data contained therein; or (v) attempt to gain unauthorized access to the Service or System or their related systems or networks.

(c)            Customer shall not directly or indirectly (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any Hireology Property in any way, (ii) use any of Hireology’s Confidential Information or any other Hireology Property to create any service, software or documentation that is similar to any Hireology Property, (iii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the System or other Background Materials, (iv) access or use the System in any manner (A) that abuses or violates the privacy or property rights of others, (B) to build a competitive product or service, (C) to build a product using similar ideas, features, functions or graphics of the Service, System or other Hireology Properties, or (D) to copy any ideas, features, functions or graphics of the Service, System or other Hireology Properties (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (v) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Hireology Property in any service bureau arrangement or otherwise for the benefit of any third party, (vi) adapt, combine, create derivative works of or otherwise modify any Hireology Property, (vii) create Internet “links” to any Hireology Property or “frame” or “mirror” any Hireology Property on any other server or wireless or Internet-based device or (viii) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction. Additionally, neither Customer nor any Representative shall use or access the Services or System if any of them is a direct competitor of Hireology or for purposes of monitoring the availability, performance or functionality of the Services or System or for any other benchmarking or competitive purposes. Any noncompliance with the preceding sentence shall result in immediate termination of this Agreement by Hireology.

3.10        Support. Hireology will use commercially reasonable efforts to provide Customer with technical support and updates for the Service and the System in accordance with the terms set forth in Exhibit B. Customer agrees that Hireology may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Customer Data or Customer Systems.

3.11        Other Services. Hireology will provide implementation services to Customer as set forth in the Purchase Order. From time to time, Customer may request and Hireology may agree to provide certain custom development, consulting, training or other professional services as mutually agreed (“Professional Services”). The terms and conditions of any such arrangement for Professional Services shall be set forth in separate statements of work executed by the parties (each, a “Statement of Work”), each of which shall be governed by the terms of this Agreement. Unless otherwise agreed by the parties and set forth in the applicable Statement of Work, all intellectual property, and all rights embodied therein, that are created by Hireology during the performance of Professional Services shall be owned solely and exclusively by Hireology.

4.              PAYMENTS.

4.1           Payment Terms.

(a)            Customer shall pay a fee for the right to use the Service (“Service Fee”) as set forth in the Company Access Purchase Order. Customer shall pay the Service Fee as outlined in the Company Access Purchase Order.

(b)            All payment obligations are non-cancelable and, except where expressly stated otherwise in this Agreement, all amounts paid are nonrefundable. Customer must provide Hireology with valid credit card or approved purchase order information as a condition to entering into this Agreement. Payments shall be made in US dollars at Hireology’s address (or to an account specified by Hireology), in full without set-off, counterclaim or deduction. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.

(c)            In addition to any other rights granted to Hireology herein, Hireology reserves the right to suspend or terminate this Agreement and Customer’s access to the Service and System if Customer’s account becomes delinquent. If Customer or Hireology initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with this Section. Customer agrees that Hireology may bill Customer for such unpaid fees.

(d)            Hireology reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter request access to the Service. Customer agrees and acknowledges that Hireology has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more past due. Customer agrees to reimburse Hireology for all costs (including attorneys’ fees) incurred by Hireology in collecting late payments.

4.2           Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Hireology’s net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to Hireology.

5.              CONFIDENTIALITY.

5.1           Scope. “Confidential Information” means all financial, business or technical information disclosed by or for a party in relation to this Agreement. Without limitation, the System and pricing information are Hireology’s Confidential Information.

5.2           Confidentiality. Except for the specific rights granted by this Agreement, neither party (“Recipient”) may use, copy or disclose any of the other’s (“Discloser”) Confidential Information without Discloser’s written consent, and shall use reasonable care to safeguard Discloser’s Confidential Information, including ensuring that Recipient’s employees and Representatives with access to Discloser’s Confidential Information (a) have a need to know for the purposes of this Agreement and (b) are bound by substantially similar confidentiality obligations. The foregoing obligations shall not apply to any Confidential Information that Recipient can demonstrate is (i) already known by it without restriction, (ii) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (iii) generally available to the public without breach of this Agreement or (iv) independently developed by it without reference to or use of any of Discloser’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its employees and Representatives, as applicable. Promptly after any termination of this Agreement (or at Discloser’s request at any other time), Recipient shall return all of Discloser’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.

5.3           Compelled Disclosure. Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose and (b) cooperate with Discloser in protecting against or minimizing any such disclosure or obtaining a protective order.

6.              PROPRIETARY RIGHTS.

6.1           Results. Unless otherwise agreed by the parties and subject to Hireology’s rights to Compiled Data and Reports set forth in Section 6.5, (a) Customer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results, (b) Results are works made for hire to the extent allowed by law and (c) Hireology makes all assignments to Customer necessary to accomplish the foregoing ownership. Unless expressly specified otherwise in the Purchase Order, Hireology has no obligation to store any Results past the duration of the Initial Term or any subsequent Renewal Term.

6.2           Background Materials. To the extent that Hireology includes any Background Materials in the Results, then subject to all terms and conditions of this Agreement, Hireology agrees to grant Customer (without right to sublicense) a nonexclusive, nontransferable, royalty-free right and license to use such Background Materials as embodied in the applicable Results, solely for Customer’s internal business purposes.

6.3           Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Customer Data and Customer Systems.

6.4           Hireology. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Hireology (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Hireology Properties and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to any Hireology Property. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to any Hireology Property. Hireology’s name, Hireology’s logo, and the product names associated with the Service and System are trademarks of Hireology or third parties, and no right or license is granted to use them.

6.5           General Learning; Aggregate Data. Customer agrees that Hireology is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer). Customer agrees that (a) Hireology shall have the right to compile and analyze Customer Data and Results (“Compiled Data”) and to prepare reports, studies, analyses and other work product resulting from such Compiled Data on an anonymous basis (“Reports”) and (b) Hireology shall have exclusive ownership rights to, and the exclusive right to use, such Compiled Data and Reports for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other customers and prospective customers of the Services; provided, however, that Hireology shall not distribute Compiled Data and Reports in a manner that is identifiable as Customer Data without first obtaining the prior written consent of Customer.

6.6           No Interference. During Term and for one (1) year thereafter, neither party will directly or indirectly recruit, employ or retain any employee of the other party, or otherwise solicit, induce or influence any employee to leave their employment with the other party, or attempt to do so.

7.              TERM AND TERMINATION.

7.1           Term. This Agreement shall commence on the Effective Date and continue in effect for the amount of time identified in the Purchase Order (the “Initial Term”). Thereafter, this Agreement will be extended automatically for additional terms of equal length (each “Renewal Term”) at the end of the Initial Term and each Renewal Term (the Initial Term and each Renewal Term, the “Term”), unless the Customer cancels their account from their billing page. Cancellation will take effect 30 days from the end of the then current term. Hireology may cancel the Agreement by providing written notice of non-renewal at least 30 days prior to the end of the then current term.

7.2           Termination. Except where expressly provided otherwise in this Agreement, this Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement or a Related Contract and fails to cure such breach within 30 days (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Except with respect to termination pursuant to items (a) and (b) of this Section, or as otherwise expressly provided otherwise in this Agreement, in no event will any termination of this Agreement relieve Customer of its payment obligations with respect to Service Fees for the then-current Term.

7.3           Effects of Termination. Upon the termination of this Agreement: (i) Hireology shall deactivate all user names and passwords and cease providing the Service and System to Customer, and Customer and its Representatives shall cease use of the Service and (ii) all other rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive, and (b) the provisions of Sections 3 (Payments), 4 (Confidentiality), 5 (Proprietary Rights), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (General Provisions) and this Section 7.3, shall survive. Hireology has no obligation to retain any Results after the Term; provided, upon Customer’s written request received within 30 days after termination, Hireology will deliver to Customer a copy of the Results then currently stored by Hireology (in the same format maintained by Hireology).

8.              WARRANTIES AND DISCLAIMERS.

8.1           Customer Data. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement. Customer bears all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and Hireology’s access, possession and use as permitted herein. Hireology shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach), Hireology will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Hireology reserves the right to withhold, remove, or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Hireology shall have no obligation to maintain or forward any Customer Data.

8.2           Service. During the Term, Hireology warrants that the Service will perform in all material respects in accordance with the Documentation when used in accordance with the terms of this Agreement on the hardware and with the third-party software specified by Hireology from time to time.  Customer’s sole remedy, and Hireology’s sole liability, for any breach by Hireology of the warranty provided in this Section shall be the repair or replacement of the nonconforming Service, at Hireology’s sole expense, as described herein. Hireology shall use commercially reasonable efforts to deliver to Customer replacement Service, a work-around or an error/bug fix as may be necessary to correct the nonconformity.  If Hireology is unable or determines that it is not commercially reasonable to correct such nonconformity within 30 days after notice of such nonconformity from Customer, then Customer may terminate this Agreement with a minimum of 30 days written notice.

8.3           Professional Services. Hireology represents and warrants that the Professional Services shall be performed in a professional and commercially reasonable manner consistent with the standard of care exercised by Hireology in performing similar services for other clients. Customer’s sole remedy for breach of this warranty shall be re-performance of the nonconforming Professional Service, or if the applicable Professional Services cannot be successfully re-performed in accordance with this warranty, then Hireology shall refund all amounts paid by Customer for the non-conforming Professional Service, provided that Hireology must have received written notice of the nonconformity from Customer no later than 30 days after the original performance of the Service by Hireology.

8.4           Disclaimers.

(a)            EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 7.2 AND 7.3 THE HIREOLOGY PROPERTIES AND RESULTS ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, HIREOLOGY AND ITS LICENSORS MAKES NO REPRESENTATION OR WARRANTY (I) THAT THE SYSTEM OR THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (II) THAT THE SYSTEM OR THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SYSTEM OR SERVICE, OR (III) THAT ANY ERRORS OR DEFECTS IN THE SYSTEM OR SERVICE WILL BE CORRECTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, HIREOLOGY HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  

(b)            CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE AND SYSTEM ARE TOOLS TO BE USED BY CUSTOMER AND ITS REPRESENTATIVES IN THE COURSE OF EXERCISING THEIR PROFESSIONAL JUDGMENT. THE SERVICE AND SYSTEM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HIREOLOGY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OUTSIDE OF ITS REASONABLE CONTROL. NO HIREOLOGY AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT.

(c)            Hireology shall not be responsible or liable for: (i) any non-conformities of the Service or System with Documentation, omissions, delays, inaccuracies or any other failure caused by Customer’s or its Representatives’ computer systems, hardware or software (other than the System), including by interfaces with such third party software, or any inaccuracies that such systems may cause within the Service or System; (ii) any data that Hireology receives from Customer, any of its Representatives or other third party sources and including the data’s accuracy or completeness, or any recruiting, hiring or other decisions made by Customer, any of its Representatives or any other party or (iii) any Excluded Event. Hireology disclaims any liability for interception of any such data or communications, including of encrypted data. Customer agrees that Hireology shall have no responsibility or liability for any damages arising in connection with access to or use of the Service or System by Customer, any Representative or any other party, other than as expressly authorized by this Agreement.

9.              INDEMNIFICATION.

9.1           Infringement. Except as provided below, Hireology agrees to (a) defend Customer against any demand, claim, action or suit by a third party that the Service infringes any US patent or copyright or misappropriates any trade secret of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such claim; provided, that (i) Customer promptly provides Hireology written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Hireology shall have sole control and authority to defend, settle or compromise such claim. If the Service becomes or, in Hireology’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Hireology may, at its option (A) obtain for Customer the right to continue using the Service or (B) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (A) and (B) are not reasonably available to Hireology, then it may terminate this Agreement upon written notice to Customer and refund to Customer any prepaid Service fees, pro-rated for the remainder of the prepaid period.

9.2           Exclusions. Hireology shall have no liability or obligation to Customer hereunder with respect to any claim based upon (a) any use of the Hireology Properties not strictly in accordance with this Agreement, (b) modifications or combinations of the Hireology Properties not provided by Hireology, (c) that portion of the Hireology Properties that implements Customer’s specific requirements or that is related to the Customer Data or Customer Systems, (d) Customer’s continuing allegedly infringing activity after being notified thereof or (e) Customer’s continuing use of any version of the Hireology Properties after being provided modifications that would have avoided the alleged infringement. Customer agrees to (i) defend Hireology against any claim by a third party that results from or arises out of any demand, claim, action or suit excluded under clauses (a) – (d) above and (ii) indemnify Hireology for settlement amounts and damages, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such claim.

9.3           Entire Liability. The foregoing states the entire liability of Hireology, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.

9.4           Indemnification by Customer. Customer agrees to indemnify, defend and hold harmless Hireology, its Affiliates, and all their officers, directors, shareholders, employees and other agents for and against any damage, cost, liability, expense, claim, suit, action or other proceeding, to the extent based on or arising in connection with, with respect to Customer’s and each of its Representative’s: (a) use of the Services in a manner not authorized by this Agreement, or in violation of applicable law, (b) use of Services or the Results with respect to or any recruiting, hiring or other decisions made by Customer, (c) Customer Data, or the combination of either with other applications, content, or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights, or the use, development, design, manufacture, production, advertising, promotion, or marketing of Customer Data, (c) violation of any term or condition of this Agreement, including without limitation, applicable representations and warranties, or (d) negligence or willful misconduct.

10.           LIMITATION OF LIABILITY. IN NO EVENT SHALL HIREOLOGY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO CUSTOMER OR ANY OF ITS REPRESENTATIVES (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH SUCH PARTY) CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA OR LOSS OR COST OF RECOVERING OR RECONSTRUCTING SUCH DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) LOSS OR COST AS A RESULT OF DECISIONS MADE IN RELIANCE ON THE SERVICE, SYSTEM OR RESULTS, (D) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (E) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRECEDING 12 MONTH PERIOD, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT (OR SUCH PARTY’S LICENSORS OR SUPPLIERS) HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.           GENERAL PROVISIONS.

11.1         Entire Agreement. This Agreement (including each Purchase Order, Hireology’s Privacy Policy and Terms of Use and the other agreements referenced in Section 1) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”

11.2        Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any party other than the parties to this Agreement.

11.3        Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to this Agreement that cannot be settled amicably by agreement of the parties hereto shall be finally settled by binding arbitration before ADR Systems of America in Chicago, Illinois and in accordance with the Arbitration Rules of ADR Systems of America, and judgment upon the award rendered by the arbitrator may be entered in any court or tribunal having jurisdiction thereof. Either party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with ADR Systems of America. The arbitration will be conducted in accordance with the ADR Systems of America Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will select one arbitrator from ADR Systems of America’s panel of neutrals and will share equally in the costs. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

11.4        Other Countries. Hireology makes no representation that the Service is appropriate or available for use in other locations. If Customer uses the Service from outside the United States of America or the European Union, Customer is solely responsible for compliance with all applicable laws, including export and import regulations of other countries. Any diversion of the Service contrary to United States or European Union (including European Union Member States) law is prohibited.

11.5        Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach by (a) Customer of Section 3 or (b) either party of Section 5 or 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

11.6        Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

11.7        Publicity. Promptly after the Effective Date, the parties shall issue a mutually agreeable press release (such agreement not to be unreasonably delayed or withheld) regarding the arrangements under this Agreement. Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of Hireology’s marketing and promotional efforts.

11.8        Third Party Interactions. During use of the Service and System, Customer may enter into correspondence with, purchase goods or services from, or participate in promotions of advertisers, sponsors or other third parties showing their goods or services through the Service and System. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Customer and the applicable third party. Hireology and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between Customer and any such third party. Hireology does not endorse any sites on the Internet that are linked through the Service or System. Hireology provides these links to Customer only as a matter of convenience, and in no event shall Hireology or its licensors be responsible for any content, products, or other materials on or available from such sites. Hireology provides the Service and System to Customer pursuant to the terms and conditions of this Agreement. Customer recognizes, however, that certain third party providers of ancillary software, hardware, or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware or services.

11.9        Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

11.10     Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, each party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section shall be deemed null and void ab initio. Hireology may use contractors and other third party service providers in performing the Service. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

11.11     Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

11.12     Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together shall constitute one and the same Agreement.