1.1 Capitalized terms not otherwise defined herein have the meanings set forth in the agreement between Reseller and Subscriber (the “Agreement”).
(a) “Affiliate” of a party means an entity that directly or indirectly controls, is controlled by, or is under common control with that party, in each case through majority voting power.
(b) “Intellectual Property Right” means any patent application, patent, copyright, moral right, database right, trademark right, trade secret or other intellectual property or proprietary right recognized or enforceable under any U.S., foreign or international law, rule, or regulation.
(c) “Message” means any text message, email, SMS, or other communication sent to a Recipient or received by a Recipient by means of the TextRecruit Service.
(d) “Order Form” means an order form signed by Subscriber and Reseller and expressly designated as an “Order Form,” including the first Order Form and any renewal or other Order Form.
(e) “Recipient” means any person who, by means of the TextRecruit Service, receives a Message from Subscriber, or sends a Message to Subscriber.
(f) “Subscriber” means the subscriber identified on the applicable Order Form.
(g) “Subscriber Data” as used in this Agreement means the Messages, contact information and other electronic data and files entered, imported, uploaded or transferred into the TextRecruit Service by Subscriber, its Affiliate, a User or a Recipient.
(h) “TextRecruit” means Reseller’s licensor of the TextRecruit Service, TextRecruit, Inc. and its Affiliates, and successors in interest.
(i) “TextRecruit Information” means any product specifications or other information about the TextRecruit Service provided by TextRecruit or Reseller to Subscriber, whether individually or by publication on the TextRecruit website, the Reseller website, or within the TextRecruit Service.
(j) “TextRecruit Service” means the TextRecruit-hosted software components set forth in an Order Form.
(k) “User” means Subscriber’s or its Affiliate’s employee, contractor, or agent authorized by Subscriber or its Affiliate to use the TextRecruit Service.
2.1 TextRecruit Service Subscription. Subject to the terms and conditions set forth in the Agreement, Subscriber may permit Users to use the TextRecruit Service solely for Subscriber’s or its Affiliate’s own hiring and employment purposes, and use the TextRecruit Information solely to support use of the TextRecruit Service under the Agreement. Subscriber may not provide access to the TextRecruit Service to anyone except its Users, or for any purpose except as set forth above. Subscriber may not distribute or sub-license the TextRecruit Service, or make it available on a service bureau basis. Subscriber shall remain fully responsible and liable for the acts and omissions of its Affiliates and Users.
2.2 Third-Party Products and Services. TextRecruit may in its discretion enable or allow access or linking to products, services, and web sites provided by other persons or entities (each, a “Third-Party Product”). Subscriber is solely responsible for entering into and complying with any contractual agreement or other terms and conditions that are required by the provider of any Third-Party Product. Reseller and TextRecruit do not make any representation regarding or endorse any Third-Party Product. Reseller and TextRecruit shall have no obligation or liability relating to any Third-Party Product, or any connection to, or interface with, any Third-Party Product.
3.1 Use of TextRecruit Service. Subscriber is solely responsible for any use of the TextRecruit Service by Subscriber or its affiliate or User, including any Message or other communication sent or received, and any recruiting, hiring, or employment-related process, action or decision, and shall ensure that any Message, communication, process, action, or decision does not violate any law or regulation. Subscriber is solely responsible for and shall ensure that use or disclosure of any Subscriber Data in accordance with the Agreement complies with applicable laws and regulations, including any required notices or consents. Without waiving the generality of the foregoing, the Parties agree as follows:
(a) Subscriber must comply with all laws and regulations governing communications to or from Recipients, including the U.S. CAN-SPAM Act, U.S. Telephone Consumer Protection Act (“TCPA”), Canadian Anti-Spam Legislation, S.C. 2010, c. 23, and any other applicable federal, state, local or foreign laws.
(b) Subscriber shall obtain any consent or approval required to communicate with a Recipient. Subscriber may not use the TextRecruit Service to send unsolicited text messages (sometimes called “spam”). Subscriber shall ensure that use of the TextRecruit Service and the related services does not generate a number of spam-related or other complaints in excess of industry norms, as determined in Reseller’s or TextRecruit’s good faith discretion. Subscriber and its Users may not import, access or use any contact lists for which all consents required by law or regulation have been obtained, and Subscriber is solely responsible for any use of such lists.
(c) Subscriber shall not, and shall not permit any User to: (i) use the TextRecruit Service to harvest, collect, gather, or assemble information or data regarding any job candidate or other person without his or her consent; (ii) impersonate any other person or entity, or communicate in any deceptive manner; (iii) access or copy any data or information of a job candidate or other person without his or her consent; (iv) knowingly interfere with or disrupt the integrity or performance of the TextRecruit Service or the data contained therein; (v) harass or interfere with another subscriber’s use and enjoyment of the TextRecruit Service; (vi) knowingly interfere in any manner with the operation of the TextRecruit Service, or the hardware and network used to operate the TextRecruit Service; or (vii) send any Message that is slanderous, libelous, defamatory, obscene, or offensive.
(d) Both during and after the Term, Subscriber shall maintain a list of and comply with any request by a Recipient or any other person or entity not to receive communications from Subscriber.
4.1 Data Use and Disclosure. Reseller may use Subscriber Data only for the purpose of performing under the Agreement or as otherwise set forth in this Agreement. Reseller may disclose Subscriber Data to TextRecruit, and TextRecruit may disclose Subscriber Data to its contractor under a written agreement requiring the contractor to use and disclose the Subscriber Data only for the purposes permitted under the Agreement. Reseller and TextRecruit also may disclose Subscriber Data to Subscriber’s and its Affiliate’s contractors, providers of Third-Party Products, and other third parties, only for purposes of providing the TextRecruit Service or as otherwise directed or permitted by Subscriber or its Affiliate or User. Notwithstanding anything to the contrary in the Agreement:
(a) Reseller and TextRecruit may use and disclose Subscriber Data as reasonably necessary to comply with applicable laws and regulations, cooperate with law enforcement agencies, or attempt to prevent or respond to illegal conduct, fraud, abuse, or a threat to the security or integrity of systems or data including the TextRecruit Service or Subscriber Data.
(b) Reseller and TextRecruit may derive or create benchmarking, transactional, or performance information, and other forms of statistics or analytics on an aggregated basis that may not reasonably be used on its own to distinguish or trace the identity of a Subscriber or its Affiliate, User, or Candidate (collectively, “Analytics”). Reseller and TextRecruit shall maintain policies and procedures, which may include de-identification, aggregation or other steps, reasonably necessary to prevent Analytics from including information that may be used on its own to distinguish or trace the identity of a Subscriber or its Affiliate, User, or Candidate.
(c) Nothing in the Agreement prohibits Reseller and TextRecruit from using Subscriber Data or the same or similar information that: (i) is or becomes publicly available except through violation of the Agreement by Reseller or TextRecruit; (ii) is or was received by Reseller or TextRecruit from a third party that to Reseller’s knowledge or TextRecruit’s knowledge is not under a confidentiality obligation with respect to the Subscriber Data; or (iii) is or was previously known to or independently developed by Reseller or TextRecruit without use of the Subscriber Data.
5.1 Intellectual Property Ownership. TextRecruit retains ownership of and reserves all Intellectual Property Rights in or related to the TextRecruit Service or Analytics (the “IP”). Neither Reseller nor TextRecruit convey to Subscriber or its Affiliate or User any Intellectual Property Right in any IP except for the non-exclusive right to use the TextRecruit Service as set forth in the Agreement. Subscriber shall not reverse engineer, disassemble or copy the IP, or otherwise use the IP to copy or recreate any part of the TextRecruit system, or distribute, rent, lease or provide indirect access to the IP except for use by Users in accordance with this Agreement. Subscriber agrees further that TextRecruit is free to use and incorporate into IP any comment, feedback, review, or other input provided by Subscriber or its Affiliate or User, and that such use or incorporation does not create or give rise to any Intellectual Property Right of Subscriber or its Affiliate or User in such IP.
5.2 Subscriber Data Ownership. Subscriber grants TextRecruit a non-exclusive, non-sublicensable right during the Term to use the Subscriber Data to perform its obligations under or as otherwise set forth in the Agreement.
5.3 Subscriber Marks. Subscriber grants TextRecruit a non-exclusive, non-sublicensable right, during the Term, to use any Subscriber Marks to perform under the Agreement. Reseller and its Affiliates and/or TextRecruit shall comply with Subscriber’s written guidelines for trademark usage provided reasonably in advance.
6.1 Reseller warrants that during the term the TextRecruit Service solely as both provided by Reseller and used in accordance with the TextRecruit Information will not infringe any third-party patent or copyright.
6.2 EXCEPT AS PROVIDED IN SECTION 6.1, RESELLER, TEXTRECRUIT, AND THEIR AFFILIATES DO NOT MAKE AND EXPRESSLY DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING AT COMMON LAW, OR OTHERWISE RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, INCLUDING THE TEXTRECRUIT SERVICE, RESELLER CONTENT, TEXTRECRUIT CONTENT, AND ANY SERVICES PROVIDED UNDER THE AGREEMENT. WITHOUT WAIVING THE GENERALITY OF THE FOREGOING, RESELLER, TEXTRECRUIT, AND THEIR AFFILIATES DO NOT MAKE AND EXPRESSLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, DATA OR SYSTEM INTEGRITY, AVAILABILITY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, OR THAT THE TEXTRECRUIT SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR FREE, AND ANY WARRANTY REGARDING SUBSCRIBER’S USE OF THE TEXTRECRUIT SERVICE, DATA OR INFORMATION ACCESSIBLE THEREFROM, ANY DECISION MADE USING THE TEXTRECRUIT SERVICE, UNAUTHORIZED ACCESS TO THE TEXTRECRUIT SERVICE, OR SUBSCRIBER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE TEXTRECRUIT SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, RESELLER, TEXTRECRUIT, AND THEIR AFFILIATES MAY MAKE CHANGES TO THE TEXTRECRUIT SERVICE FROM TIME TO TIME, OR THE CORRESPONDING DOCUMENTATION, AND THOSE CHANGES SHALL NOT BE DEEMED TO GIVE RISE TO BREACH OF WARRANTY OR LIABILITY OF RESELLER, TEXTRECRUIT, OR THEIR AFFILIATES.
7.1 Subscriber Indemnification. Subscriber shall defend Reseller and its Affiliates, officers, directors, shareholders, agents, and TextRecruit and its officers, directors, shareholders, and agents (each, a “Reseller Indemnitee”) from and against any third party claim, demand, lawsuit or legal action arising from: (i) Subscriber’s gross negligence or willful misconduct; (ii) alleging that Subscriber Data or, Subscriber Marks infringe or violate an Intellectual Property Right of a third party; (iii) use of the TextRecruit Service not in accordance with the Agreement; (iv) any matter for which Subscriber is responsible under Section 3 (Subscriber Responsibilities) above; or (v) Subscriber’s breach of its compliance with laws obligations under the Agreement (each of (i), (ii), (iii), (iv), and (iv), a “Subscriber Indemnified Claim”), and indemnify each Reseller Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with a Subscriber Indemnified Claim.
8.1 IN NO EVENT WILL RESELLER OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, OR ANY OTHER LEGAL THEORY, FOR: LOST REVENUE, LOST PROFITS, LOST DAMAGES, LOSS OF DATA, LOSS OF USE, ANY CLAIM OR ACTION OF ANY THIRD PARTY (EXCEPT UNDER SECTION 7 (INDEMNIFICATION) OF THE AGREEMENT), OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER OR NOT RESELLER OR ITS AFFILIATES MAY HAVE ANTICIPATED OR BEEN ADVISED OF SUCH DAMAGES.
8.2 THE TOTAL CUMULATIVE LIABILITY OF RESELLER OR ITS AFFILIATES AND REPRESENTATIVES ARISING OUT OF OR RELATED TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY SUBSCRIBER DURING THE THREE HUNDRED AND SIXTY-FIVE (365) DAYS PRIOR TO THE DATE THE FIRST OF ANY SUCH LIABILITIES AROSE. IN NO EVENT WILL RESELLER OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THE AGREEMENT UNLESS SUBSCRIBER FIRST PROVIDED TO RESELLER OR ITS AFFILIATES THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE OF SUCH BREACH AND AN OPPORTUNITY FOR RESELLER OR ITS AFFILIATES TO CURE SUCH BREACH WITHIN THOSE THIRTY (30) DAYS.
8.3 NOTWITHSTANDING THE FOREGOING, SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT TEXTRECRUIT SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, AND THAT SUBSCRIBER’S SOLE REMEDY WITH RESPECT TO ANY TEXTRECRUIT SERVICE SHALL BE AGAINST RESELLER DIRECTLY.
8.4 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
9.1 Third Party Beneficiaries. The Parties hereby designate TextRecruit and its Affiliates as third-party beneficiaries of the Agreement. Subscriber hereby understands, acknowledges, and agrees that TextRecruit and its Affiliates, as third-party beneficiaries of the Agreement, may enforce the provisions hereof as if they were a party hereto may enforce the provisions hereof as if they were parties hereto.