Subscription Agreement

TEXTRECRUIT SUBSCRIPTION AGREEMENT

 

PLEASE READ THIS TEXTRECRUIT SUBSCRIPTION AGREEMENT CAREFULLY. BY SIGNING AN ORDER FORM REFERENCING THIS TEXTRECRUIT SUBSCRIPTION AGREEMENT, CLICKING ON THE “I AGREE” BUTTON, OR USING PRODUCTS OR SERVICES DESCRIBED IN THE TEXTRECRUIT SUBSCRIPTION AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS IN THIS TEXTRECRUIT SUBSCRIPTION AGREEMENT.

TextRecruit, Inc. (“TextRecruit”) and the subscriber identified in the applicable Order Form (“Subscriber”) enter into and agree to be bound by this TextRecruit Subscription Agreement (the “Agreement”).

 

1. DEFINITIONS

 

The capitalized terms below shall have the following meanings for purposes of this Agreement:

1.1 “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.

1.2 “Data Security & Privacy Statement” means the Data Security & Privacy Statement that may be accessed through https://www.textrecruit.com/gc/.

1.3 “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.

1.4 “Order Form” means an order form signed by Subscriber and TextRecruit and expressly designated as an “Order Form,” including the first Order Form and any renewal or other Order Form.

1.5 “Party” means TextRecruit or Subscriber.

1.6 “Recipient” means any person who, by means of the TextRecruit Service, receives a Message from Subscriber, or sends a Message to Subscriber.

1.7 “Statement of Work” means a statement of work signed by TextRecruit and Subscriber setting forth implementation, training or consulting services to be provided by TextRecruit under this Agreement.

1.8 “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.

1.9 “Support & Maintenance Policy” means the Support and Maintenance Policy that may be accessed through https://www.textrecruit.com/gc/.

1.10 “TextRecruit Information” means any product specifications or other information about the TextRecruit Service provided by TextRecruit to Subscriber, whether individually or by publication on the TextRecruit website or within the TextRecruit Service.

1.11 “TextRecruit Service” means the TextRecruit-hosted software components set forth in an Order Form.

1.12 “User” means Subscriber’s or its Affiliate’s employee, contractor, or agent authorized by Subscriber or its Affiliate to use the TextRecruit Service.

2. SUBSCRIPTION

 

2.1 TextRecruit Service Subscription. Subject to the terms and conditions set forth in this 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 this 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 Order Form Limitations. Subscriber may permit access to only the maximum number of Users set forth in the Order Form. Each User will be assigned a unique user identification name and password (“User ID”) for access to and use of the TextRecruit Services. User IDs may not be shared or used by more than one User at a time. Use of the TextRecruit Service is limited to the number of contacts, Messages, and other categories set forth in the applicable Order Form. TextRecruit may impose controls intended to enforce those limitations, and may charge Subscriber for any excess usage at TextRecruit’s then-current rates.

2.3 TextRecruit Services. TextRecruit shall host, support, and maintain the TextRecruit Service in accordance with the Support & Maintenance Policy. Updates (as defined in the Support & Maintenance Policy) are deemed part of the TextRecruit Service. TextRecruit also shall deliver the implementation, training, consulting, and other services set forth in an applicable Order Form or Statement of Work.

2.4 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. TextRecruit does not make any representation regarding or endorse any Third-Party Product. TextRecruit shall have no obligation or liability relating to any Third-Party Product, or any connection to, or interface with, any Third-Party Product.

2.5 Additional Terms. Certain components of the TextRecruit Service or other products or services set forth in an Order Form may be subject to additional terms and conditions as stated in such Order Form or an addendum to the Agreement. The additional terms and conditions set forth in an Order Form or addendum are deemed subject to and incorporated into this Agreement, except as otherwise set forth in such Order Form or addendum.

3. SUBSCRIBER RESPONSIBILITIES

 

3.1 Equipment and Resources. Subscriber is solely responsible for any travel, accommodations, computer equipment, telecommunications, and expenses required for Subscriber or its Users to access or use the TextRecruit Service.

3.2 Use. Subscriber is solely responsible for any use of the TextRecruit Service by Subscriber or its Affiliate or User, including any Message, 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. Subject to TextRecruit’s compliance with Section 4 of this Agreement, Subscriber is solely responsible for and shall ensure that use or disclosure of any Subscriber Data in accordance with this 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 TextRecruit’s good faith judgment. Subscriber and its Users may not import, access or use any contact lists for which all consents required by law or regulation have not 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 TextRecruit 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; (vii) or 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 (an “Unsubscribe Request”). TextRecruit will make a reasonable effort to identify Unsubscribe Requests from Recipients, block Messages by means of the TextRecruit Service from Subscriber to those Recipients, and communicate those Unsubscribe Requests periodically to Subscriber; provided nothing in the foregoing shall be deemed to relieve Subscriber from its sole responsibility for complying with all Unsubscribe Requests both during and after the Term.

3.3 Compliance Measures. Compliance Measures. TextRecruit may implement technical or other measures in its discretion to limit or prevent any use of the TextRecruit Service in violation of Subscriber’s responsibilities under this Section 3, as determined in TextRecruit’s good faith discretion.

4. SUBSCRIBER DATA

 

4.1 Data Protection. TextRecruit shall maintain administrative, physical and technical safeguards intended to protect the security, privacy and integrity of Subscriber Data as set forth in the Data Security & Privacy Statement. TextRecruit in its discretion also may maintain supplemental or additional safeguards.

4.2 Data Use and Disclosure. TextRecruit may use Subscriber Data only for the purpose of performing under this Agreement or as otherwise set forth in this Agreement. 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 this Agreement, and subject to the Data Security & Privacy Statement. 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 this Agreement:

(a) 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) 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”). 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 this Agreement prohibits TextRecruit from using Subscriber Data or the same or similar information that: (i) is or becomes publicly available except through violation of this Agreement by TextRecruit; (ii) is or was received by TextRecruit from a third party that to 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 TextRecruit without use of the Subscriber Data.

4.3 Data Access and Storage. During the Service Period (as defined below), Subscriber may access and download the Subscriber Data in the manner provided by the TextRecruit Service. TextRecruit is not required to maintain any Subscriber Data after the Term. TextRecruit shall dispose of the Subscriber Data in accordance with the Data Security & Privacy Statement.

5. PAYMENT

 

5.1 Fees and Expenses. Upon signing an Order Form, Subscriber shall pay the total one-time fees set forth in such Order Form. Unless otherwise set forth in the applicable Order Form, TextRecruit will invoice recurring fees in advance, on an annual basis, payable within thirty (30) days of delivery of an invoice. All fees paid under this Agreement are non-refundable. TextRecruit may increase the fees under each any Order Form upon the commencement of any Renewal Period (as defined below).

5.2 Taxes. Subscriber shall be solely responsible for paying any sales, value-added, business use, or other similar taxes relating to the TextRecruit Service or any other product or service provided by TextRecruit, exclusive of TextRecruit’s income taxes. The fees listed in an Order Form are exclusive of taxes, and TextRecruit shall have the right to invoice taxes together with or separately from the fees payable by Subscriber.

5.3 Purchase Orders. Any terms or conditions in any purchase order or other document issued by Subscriber are void and of no force or effect as between Subscriber and TextRecruit. Issuance of a purchase order or other document is not a condition of Subscriber’s payment obligations.

5.4 Overdue Payments. TextRecruit may charge Subscriber overdue payment charges on the unpaid balance from the original due date at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum interest charge allowed by law, and may suspend access and use of the TextRecruit Service by Subscriber and its Affiliates and Users. If any amount due remains unpaid more than forty-five (45) days after the due date, TextRecruit may upon written notice accelerate all amounts due under all Order Forms through their full terms and all of those amounts will become immediately due.

5.5 Invoice Disputes. Any invoice must be disputed within thirty (30) days of delivery. If within that period Subscriber delivers written notice disputing an invoiced amount and describing the basis for dispute with reasonable particularity, the Parties shall make a good faith effort to confer and resolve the dispute within thirty (30) days of delivery of Subscriber’s notice. If Subscriber has paid all undisputed amounts, and engages in good faith negotiations, TextRecruit’ rights under this Agreement to assess overdue payment charges, suspend access to the TextRecruit Service, and terminate the Agreement for material breach based on non-payment of the disputed payment, shall be suspended during that thirty (30) day period.

6. TERM AND TERMINATION

 

6.1 Term. The term of each Order Form (the “Service Period”) commences on the Contract Start Date (as defined in the applicable Order Form) and expires on the day prior to the Renewal Date (as defined in the applicable Order Form); provided that the term of each Order Form shall automatically renew for successive one (1) year renewal periods (each, a “Renewal Period”) unless either party provides thirty (30) days’ prior written notice of its intent not to renew. TextRecruit may require any TextRecruit Service added to this Agreement to end on the same date as the first TextRecruit Service (or renewal thereof) under this Agreement so that all TextRecruit Services will share the same renewal date, and TextRecruit will prorate the fees for the Service Period of each renewed TextRecruit Service accordingly. The term of this Agreement (the “Term”) commences on the last date of signature of the first Order Form, and expires upon the expiration of all Order Forms, unless terminated earlier pursuant to this Agreement. All Order Forms terminate immediately upon the termination of this Agreement

6.2 Termination for Cause.

(a) Either Party (the “Non-Breaching Party”) may terminate this Agreement upon written notice to the other Party (the “Breaching Party”) if the Breaching Party does not cure its material breach of the Agreement within thirty (30) days of written notice from the Non-Breaching Party stating its intent to terminate and describing the breach with reasonable particularity. Nonpayment by Subscriber of any amount within thirty (30) days of the due date constitutes material breach, subject to the overdue payment resolution procedures set forth in Section 5.5 above. Reference to the unpaid amount and invoice constitutes sufficiently reasonable particularity for the notice of breach.

(b) TextRecruit may terminate this Agreement upon written notice in the event of filing of a petition in bankruptcy of Subscriber, or commencement of a receivership or similar proceeding based on the insolvency of Subscriber.

(c) Termination by TextRecruit for cause will not relieve Subscriber of its obligation to pay all fees that would have otherwise been due had the Agreement not been terminated for breach, and all such fees shall become immediately due.

6.3 Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted by a Party under the Agreement immediately terminate, and Subscriber and its Affiliates and Users shall immediately cease use of the TextRecruit Service and TextRecruit Information. Termination by either Party will not relieve Subscriber of any obligation to pay fees due for periods prior to termination TextRecruit may provide post-termination or expiration assistance services as further agreed by the Parties in writing, including the fees payable for such assistance. Notwithstanding this Section 6.3, TextRecruit may continue to use the Subscriber IP and Subscriber Marks (as defined below) to satisfy its post-termination or expiration obligations or as otherwise set forth in this Agreement or the Data Security & Privacy Statement. Sections 6.3, 8.1, 8.2, 10, 11 and the provisions of Section 13 that by their terms naturally survive shall survive expiration or termination of the Agreement. The Receiving Party’s obligations under Section 7 of this Agreement with respect to Confidential Information received during the Term shall survive: (i) with respect to Confidential Information that constitutes a trade secret of the Disclosing Party, as long as that Confidential Information remains a trade secret; and (ii) with respect to all other Confidential Information, for a period of five (5) years after the expiration or termination of the Agreement.

7. CONFIDENTIAL INFORMATION

 

7.1 Confidential Information Defined. “Confidential Information” as used in this Agreement means any information that during the Term is disclosed by or on behalf of a Party or its Affiliate (the “Disclosing Party”) to the other Party or its Affiliate (the “Receiving Party”) and at the time of disclosure: (i) is designated in writing as confidential or proprietary; (ii) is designated orally as confidential or proprietary, and embodied by the Disclosing Party in written or other tangible form, including meeting minutes, memos, diagrams, flow charts, and software; or (iii) should reasonably be understood by the Receiving Party to be confidential to the Disclosing Party under the circumstances. Notwithstanding the absence of any designation of confidentiality, the Parties agree that any Order Form, TextRecruit Information and Analytics are the Confidential Information of TextRecruit.

7.2 Obligations. Except as approved by the Disclosing Party in writing, the Receiving Party shall not: (i) use the Confidential Information of the Disclosing Party except to perform or exercise its rights and obligations under this Agreement; or (ii) disclose the Confidential Information of the Disclosing Party to any third party except to the Receiving Party’s Affiliates, contractors, agents, or corporate directors or officers (each, a “Representative”) who are under a duty in substance and effect to use and disclose the Confidential Information only as permitted under this Agreement. The Receiving Party shall be responsible for any use by its Representative of the Confidential Information it discloses to its Representative. Upon termination of the Agreement, each Party shall cease use of, and within thirty (30) days of termination shall destroy or return, all Confidential Information of the other Party, except that: (a) TextRecruit may retain Confidential Information of Subscriber as needed to comply with any post-expiration or termination obligation under this Agreement; (b) each Party may retain Confidential Information as required to comply with its obligations under applicable laws or regulations; and (c) Confidential Information may be stored on secured backup media that are destroyed no more than twelve (12) months after the month in which the Agreement terminates or expires.

7.3 Exceptions. Neither Party’s obligations under this Section 7 apply to: (i) information which is or becomes publicly available except through any act or omission of the Receiving Party in violation of a duty to the Disclosing Party; (ii) information received by the Receiving Party from a third party that to the Receiving Party’s knowledge is not under a confidentiality obligation with respect to the Confidential Information; or (iii) information previously known to or independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information in accordance with a subpoena, judicial or other governmental order, or requirement of any law, regulation or the rules of any applicable stock exchange, provided that where legally permissible the Receiving Party must give the Disclosing Party reasonable written notice prior to such disclosure and seek confidential treatment for the disclosed Confidential Information. Subscriber shall reimburse TextRecruit for its reasonable costs (including but not limited to attorneys’ fees) incurred in connection with any response to a subpoena, judicial or other governmental order, or requirement of any law or regulation requesting or requiring the disclosure of any Subscriber Data.

8. INTELLECTUAL PROPERTY

 

8.1 TextRecruit IP Ownership. As used in this Agreement, “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. TextRecruit retains ownership of and reserves all Intellectual Property Rights in or related to the TextRecruit Service, TextRecruit Information or Analytics (collectively, “TextRecruit IP”). TextRecruit does not convey to Subscriber or its Affiliate or User any Intellectual Property Right in any TextRecruit IP except for the non-exclusive right to use the TextRecruit Service as set forth in this Agreement. Subscriber shall not reverse engineer, disassemble or copy the TextRecruit IP, or otherwise use the TextRecruit IP to copy or recreate any part of the TextRecruit system, or distribute, rent, lease or provide indirect access to the TextRecruit IP except for use by Users in accordance with this Agreement. Subscriber agrees further that TextRecruit is free to use and incorporate into TextRecruit 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 TextRecruit IP.

8.2 Subscriber Data Ownership. Subscriber retains ownership of and reserves all Intellectual Property Rights in or related to the Subscriber Data. Subscriber does not convey to TextRecruit any Intellectual Property Right in any Subscriber Data, except as set forth in this Agreement. 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 this Agreement.

8.3 Subscriber Marks. Subscriber grants TextRecruit a non-exclusive, non-sublicensable right, during the Term, to use any Subscriber trademark, service mark or tradename designated or otherwise identified by Subscriber for use in the TextRecruit Service (the “Subscriber Marks”), to perform under this Agreement, and to identify Subscriber in TextRecruit’s customer lists and other marketing and promotional materials and communications referencing Subscriber as a customer of TextRecruit. TextRecruit shall comply with Subscriber’s written guidelines for trademark usage provided reasonably in advance.

9. WARRANTIES AND LIMITATIONS

 

9.1 Warranty. TextRecruit warrants that during the Term the TextRecruit Service solely as both provided by TextRecruit and used in accordance with the TextRecruit Information will not infringe any third-party patent or copyright. TextRecruit’s warranty does not apply to any: (i) Third-Party Product; (ii) use of the TextRecruit Service not in accordance with the TextRecruit Information TextRecruit’s published policies, or this Agreement; or (iii) failure of Subscriber or its Affiliate or User to follow reasonable support or maintenance instructions provided by TextRecruit (each of (i), (ii), and (ii) above, an “Excluded Condition”). Subscriber’s sole remedy for breach of this warranty is that it may immediately terminate this Agreement and receive a refund of any pre-paid but unused amounts, if TextRecruit does not cure the infringement within sixty (60) days of receipt of Subscriber’s written notice of intent to terminate identifying the alleged infringement.

9.2 Limitations. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, TEXTRECRUIT DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING AT COMMON LAW, OR OTHERWISE RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE TEXTRECRUIT SERVICE, TEXTRECRUIT CONTENT AND ANY SERVICES PROVIDED UNDER THE AGREEMENT. WITHOUT WAIVING THE GENERALITY OF THE FOREGOING, TEXTRECRUIT DOES NOT MAKE AND EXPRESSLY DISCLAIMS 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 THIS AGREEMENT, TEXTRECRUIT MAY MAKE CHANGES TO THE TEXTRECRUIT SERVICE FROM TIME TO TIME, OR THE CORRESPONDING TEXTRECRUIT INFORMATION, AND THOSE CHANGES SHALL NOT BE DEEMED TO GIVE RISE TO BREACH OF WARRANTY OR LIABILITY OF TEXTRECRUIT.

10. INDEMNIFICATION

 

10.1 TextRecruit Indemnification. TextRecruit shall defend Subscriber and its Affiliates, officers, directors, shareholders and agents (each, a “Subscriber Indemnitee”) from and against any third party claim, demand, lawsuit or legal action: (i) alleging that the TextRecruit IP infringes or violates an Intellectual Property Right of a third party; (ii) arising from TextRecruit‘s failure to perform under Section 4.1 (Data Protection) or 4.2 (Data Use and Disclosure) above; or (iii) arising from TextRecruit‘s violation of its obligations under this Agreement with respect to Confidential Information (each of (i), (ii) and (iii), an “TextRecruit Indemnified Claim”), and indemnify each Subscriber Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with an TextRecruit Indemnified Claim. TextRecruit’s obligations under this Section 10.1 do not apply to any Excluded Condition.

10.2 Subscriber Indemnification. Subscriber shall defend TextRecruit and its Affiliates, officers, directors, shareholders and agents (each, an “TextRecruit Indemnitee”) from and against any third party claim, demand, lawsuit or legal action: (i) alleging that Subscriber Data or, Subscriber Marks infringe or violate an Intellectual Property Right of a third party; (ii) arising from any matter for which Subscriber is responsible under Section 3 (Subscriber Responsibilities) above; or (iii) arising from violation by Subscriber of its obligations under this Agreement with respect to Confidential Information (each of (i), (ii) and (iii), a “Subscriber Indemnified Claim”), and indemnify each TextRecruit Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with a Subscriber Indemnified Claim.

10.3 Conditions.

(a) As a condition of any Party’s duty to defend or indemnify under this Section 10, the person or entity seeking defense or indemnification must: (i) give the defending and indemnifying Party prompt written notice of the applicable claim, demand, or legal action; (ii) allow the defending and indemnifying Party sole control of the defense and settlement; and (iii)  reasonably cooperate in the defense and settlement at the defending and indemnifying Party’s reasonable cost, except that the indemnified person or entity will not be required to make any settlement payment unless the defending and indemnifying Party agrees to include that payment as an indemnified expense.

(b) In the event of any claim, demand, legal action, or notice alleging infringement of TextRecruit IP, TextRecruit may either: (i) replace or modify the TextRecruit IP in whole or in part in a manner that does not materially degrade the TextRecruit Service; (ii) obtain a license or other grant necessary to continue to provide the TextRecruit IP in accordance with the Agreement, or (iii) terminate the Agreement upon written notice to Subscriber. In such event, TextRecruit’s sole liability will be its obligations under Section 10.1 above and a refund to Subscriber of any pre-paid but unused fees.

11. LIMITATIONS OF LIABILITY

 

11.1 IN NO EVENT WILL TEXTRECRUIT OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS 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 10 (INDEMNIFICATION) OF THIS AGREEMENT), OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER OR NOT TEXTRECRUIT OR ITS AFFILIATE MAY HAVE ANTICIPATED OR BEEN ADVISED OF SUCH DAMAGES.

11.2 THE TOTAL CUMULATIVE LIABILITY OF TEXTRECRUIT AND ITS AFFILIATES AND REPRESENTATIVES ARISING OUT OF OR RELATED TO THIS 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 TEXTRECRUIT BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THIS AGREEMENT UNLESS SUBSCRIBER FIRST PROVIDED TO TEXTRECRUIT THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE OF SUCH BREACH AND AN OPPORTUNITY FOR TEXTRECRUIT TO CURE SUCH BREACH WITHIN THOSE THIRTY (30) DAYS.

11.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.

12. INSURANCE

 

12.1 During the Term, TextRecruit shall maintain the following insurance: Worker’s compensation insurance, as applicable; combined single limit automobile liability insurance of at least One Million Dollars ($1,000,000); commercial general liability insurance of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in annual aggregate; excess/umbrella liability insurance of at least Five Million Dollars ($5,000,000) in annual aggregate; and professional liability insurance, including cybersecurity liability, of at least Fifteen Million Dollars ($15,000,000) per occurrence and in annual aggregate. TextRecruit shall deliver a certificate of insurance evidencing the coverages set forth above no more than thirty (30) days after written request by Subscriber. Neither the requirement to maintain, nor failure to maintain, the specified insurance policies shall relieve TextRecruit of its responsibility for its defense or indemnity obligations under Section 10 above or liability for breach of this Agreement.

13. GENERAL TERMS

 

13.1 Relationship of the Parties. Both Parties agree that they are independent entities and that nothing in this Agreement creates a partnership, joint venture, fiduciary, agency, or affiliate relationship between the Parties. Each Party is solely responsible for the supervision, management, direction, and payment of compensation and benefits to its own employees.

13.2 Federal Government Provisions. If Subscriber is directly or indirectly acquiring the TextRecruit Service on behalf of the U.S. Government, the software object code and source code that is delivered as part of the TextRecruit Service is classified as “Commercial Computer Product” and “Commercial Computer Documentation” developed at private expense and  containing confidential information and trade secrets of TextRecruit, Inc. and its Licensors, and is subject to “Restricted Rights” as that term is defined in the U.S. Federal Acquisition Regulations. Manufacturer is: TextRecruit, Inc., 225 West Santa Clara Street, Suite 1150, San Jose, CA 95113, U.S.A.

13.3 Force Majeure. No Party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are materially delayed or prevented by reason of any event that is beyond the reasonable control of that Party and could not reasonably have been foreseen and protected against by that Party, including any act of nature (including fire, earthquake or natural disaster) or act of government (such as war, terrorism or embargo), provided that the non-performing Party must give the other Party prompt written notice of the event. In the event the delay or nonperformance by TextRecruit as described in this Section 13.3 continues for a period of forty-five (45) consecutive days, Subscriber may elect to terminate this Agreement by written notice no more than thirty (30) days’ after the end of the forty-five (45) day period, and receive a refund of any pre-paid fees for unused portions of the remaining Term. This Section 13.3 does not apply to payment obligations.

13.4 Notices. Notices required under this Agreement to be in writing must be made by, and notice is deemed to have been duly given when, sent by confirmed email or deposited with an overnight courier with a reliable system for tracking delivery. TextRecruit shall deliver any written notice to the email or office address of Subscriber listed in the most recent Order Form. Subscriber shall deliver any written notice to: legal@textrecruit.com with a simultaneous copy to generalcounsel@icims.com. Either Party may from time to time change the address for written notices by giving the other Party prior written notice of the change.

13.5 Assignment. Neither Party may assign any of its rights or obligations under this Agreement without prior written consent from the other Party, provided that a Party may assign this Agreement to an Affiliate or successor in interest by merger, acquisition of all stock or of substantially all assets, or reorganization. Any purported assignment in violation of this paragraph is void and constitutes a material breach of this Agreement. In the event of a permitted assignment, the assigning Party shall provide written notice of the assignment to the other Party. This Agreement inures to the benefit of and is binding on each of the Parties, their successors, permitted assigns, and legal representatives.

13.6 TextRecruit Information and Policy Changes. TextRecruit may make changes to the TextRecruit Information or any policy referenced in this Agreement, or the hyperlink or other means of access to the TextRecruit Information or policy, except that TextRecruit may not make changes to the Data Security & Privacy Statement that materially diminish the protections for Subscriber Data set forth in such policy.

13.7 Third Party Beneficiaries. No other person has any rights, interest, or claims hereunder, or is entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.

13.8 Law and Forum. This Agreement is governed by, and will be construed in accordance with, the laws of the State of California without regard to its conflict of law provisions, the United Nations Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act. Any lawsuit related to this Agreement or its subject matter will be heard only in the federal courts located in the U.S. Northern District of California or the state courts located in Santa Clara County, California, and the Parties hereby submit to the personal jurisdiction of and venue in those courts.

13.9 Rules of Interpretation. It is the intention of the Parties that if a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, the remaining provisions of the Agreement will remain in full force and effect. In the event of any conflict between this Agreement and an Order Form, statement of work, addendum or exhibit, the Agreement will be given precedence, except as expressly set forth in the applicable Order Form, statement of work, addendum or exhibit. Unless explicitly specified to the contrary, the word “including” wherever used herein means “including, but not limited to”.

13.10 Entire Agreement; Amendment; and Waiver. No Order Form, statement of work, or addendum to this Agreement is binding on the Parties unless agreed by both Parties in writing. Each binding Order Form, statement of work, and addendum is incorporated into and made part of this Agreement. This Agreement supersedes all prior discussions, statements, representations, and agreements, oral or written, between the Parties relating to the subject matter of the Agreement, and constitutes the entire agreement between the Parties relating to its subject matter. This Agreement may be amended, modified, or supplemented only by a written document signed by an authorized representative of each Party. The failure of either Party, at any time, to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach or failure by the other Party does not constitute a waiver of such right or remedy with respect to any other breach or failure by the other Party.

13.11 Counterparts. This Agreement may be executed by facsimile or other electronic means, and in one or more counterparts, each of which is deemed to be an original, but all of which together constitute one and the same Agreement.

 

Subscription Agreement 1APRIL2019

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