CAREERSPACE TERMS AND CONDITIONS
These Terms and Conditions, as may be updated by Jibe from time to time, (including its attached schedules, these “T&Cs”) apply to any edition of the proprietary Jibe recruitment marketing services or products provided hereunder (collectively, the “Subscription Services”) described in the Jibe Sales Order which references these T&Cs (the “Sales Order”). The parties acknowledge that the terms and conditions of these T&Cs and the applicable Sales Order are collectively hereinafter referred to as the “Agreement”. Capitalized terms used but not defined herein will have the respective meanings assigned to them in the Sales Order.
1. ACCESS AND USE
1.1.License to Client. Subject to the terms and conditions of the Agreement, Jibe grants to Client a nonexclusive, non-transferable, non-sublicensable, worldwide license to use, and to permit its respective End Users (as defined below) to use, the Subscription Services for Client’s recruitment marketing purposes during the Subscription Period as set forth in a written Sales Order entered into from time to time by the parties. “End Users” mean (i) Client’s employees and agents assigned login credentials so they may use the Subscription Services under Client’s accounts (“Named Users”); and (ii) individuals who are not Named Users, but who use the Subscription Services for recruiting or employment activities with Client, such as job candidates. Client will be responsible for ensuring that its End Users use the Subscription Services in accordance with the terms of the Agreement.
1.2.Use of License; Named User Access. Named Users must access and use the Subscription Services in accordance with the authorized access procedures established by Jibe from time to time. Unless otherwise stated in the Sales Order, Client will assign all Client login credentials for the Subscription Services and is solely responsible for all access, use, and activity occurring under its accounts, including without limitation safekeeping Client’s login credentials for the Subscription Services, and for maintaining the confidentiality of all Named Users’ usernames and passwords. Client will not allow a third party to use any of its accounts, usernames or passwords at any time and will promptly notify Jibe of any actual or suspected unauthorized use or breach thereof.
1.3.Restrictions. Client agrees not to engage in any prohibited activities including without limitation reverse engineering; scraping; mirroring; DDoS or brute force attacks; unauthorized sharing and licensing to those other than End Users; uploading any program, code, or function (including without limitation viruses, Trojan horses, worms, data bombs, time bombs, shut-down devices, keys, robots, or spiders), the purpose of which is to cause the Subscription Services to cease operating or damage, interfere, or hinder the operation of either the Subscription Services or the servers on which the Subscription Services resides (a “Virus”); and fraud.
1.4.Acknowledgment. Client acknowledges and agrees that many features and functionalities of the Subscription Services are dependent on the availability and operability of the Internet as well as the websites, networks, and/or systems of Client and third parties. Client acknowledges and agrees that Jibe has no control over, and will have no obligations with respect to, the Internet or such websites, networks, and/or systems. Client further acknowledges and agrees that it shall be responsible for obtaining and maintaining at its expense all necessary equipment, software, and connections to the Internet required for it to use the Subscription Services.
1.5.Laws. Each party will remain responsible for its own compliance with all applicable laws, statutes, rules, regulations, orders, judgments, decrees, rulings or other enforceable requirements of courts or other governmental bodies of competent jurisdiction, whether domestic or foreign (collectively, “Laws”). Laws shall include without limitation United States employment laws as well as United States and foreign privacy, security, and data protection laws (“Privacy Laws”). Without limiting the foregoing, Client agrees that it will remain solely responsible for ensuring that the content of Client’s job descriptions comply with all Laws applicable to Client.
2.1.Configuration Services . The Subscription Services require configuration and/or other implementation services from Jibe that must be completed before Client may use the Subscription Services (the “Configuration Services”). Upon execution of the Sales Order, Jibe and Client will engage in a one (1) hour design consultation and complete an asset checklist (collectively, the “Project Plan”) to assist the parties in finalizing the Configuration Services, the parties’ respective tasks (including potential additional Client Tasks), and the estimated project schedule. Notwithstanding the foregoing, Jibe may provide additional hours of design consultation prior to commencing the Configuration Services at a mutually agreed upon rate.
2.2. Acceptance . The Subscription Services will be configured in accordance with the Project Plan. The Subscription Services will be considered delivered upon written notice thereof from Client or seven (7) days from first commercial usage if Client has not first provided written notice of rejection, provided Client may only reject the Subscription Services to the extent that it materially fails to conform to the Project Plan. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Subscription Services’ material failure to conform to the Project Plan. In response to rejection, Jibe may revise and redeliver the Subscription Services, and thereafter the procedures of this Section will repeat.
2.3.Professional Services. After Jibe has delivered the Subscription Services, additional services may also be provided by Jibe to Client subject to the mutual agreement of the parties (“Professional Services”). Unless otherwise described in the Sales Order, Professional Services shall be provided to Client at Jibe’s then-current hourly rate and include without limitation changes to the page contents (e.g., text and image changes) provided by Client for use in the Subscription Services as well as other services requested by Client. All requests for changes or modifications to the Subscription Services must be made in writing. The written request will describe in detail applicable revisions to the rates and the additional or modified page contents as agreed to by Jibe and Client. All requests for Professional Services are considered billable engagements and Jibe reserves the right to refuse any such request for any reason
2.4.1.Support. Support and maintenance for the Subscription Services is included in the License Fees. Jibe accepts email support questions for the Subscription Services 24 hours a day, 7 days a week. Email support responses are provided between 9:00AM to 6:00PM Eastern Standard Time, Monday through Friday, excluding United States national holidays. Jibe attempts to respond to email support questions within one (1) business day; however, Jibe does not promise or guarantee any specific response time. For the avoidance of doubt, support and maintenance does not include support or maintenance of any Client or third-party applications, software, or hardware. Client understands that continued functionality of the Subscription Services could be impacted by changes Client’s systems and agrees to provide Jibe with prior written notice thereof.
2.4.1.Availability. Jibe tries to make the Subscription Services available 24 hours a day, 7 days a week, except for planned downtime for maintenance or emergency outages.
3. CLIENT DATA; PRIVACY
3.1.Client Data . Some features of the Subscription Services allows Client and/or its End Users to upload, submit, or otherwise provide or make available certain data, content, and jobs (collectively, “Client Data”). Jibe will only process Client Data for the purposes of providing the Subscription Services in accordance with the Agreement. As between the parties, Client owns all right, title, and interest in and to all Client Data, including any Intellectual Property Rights (as defined below) therein. Client acknowledges and agrees that, as between the parties, it is solely responsible for any and all Client Data regardless of whether such Client Data was provided by Client or its End Users. Client agrees that it is solely responsible for posting all applicable privacy policies, terms of service, or notifications on its career and employment website (“Career Site”) or other Client website as well as for making all appropriate disclosures and obtaining any necessary consents with respect to Client’s collection and use of information, including Client Data. Jibe makes no representations or warranties with respect to the accuracy or completeness of any Client Data nor takes any responsibility or assumes any liability for such Client Data. Furthermore, Jibe does not guarantee that the jobs provided by file will be accurate, complete, or up-to-date as Jibe’s job integration is reliant on Client to provide updated and accurate files.
3.2. Jibe Privacy and Security . Jibe will maintain commercially reasonable administrative, physical, and technical measures to help protect the security, confidentiality, and integrity of Client Data.
3.3.Aggregate Data. Client agrees that Jibe may use anonymized statistics about Client Data (but not the underlying Client Data) that has been aggregated to reasonably avoid identification of Client or a specific individual for the purposes of sales, marketing, business development, product enhancement, or customer service.
3.4.Prohibitions. CLIENT AGREES NOT TO USE THE SUBSCRIPTION SERVICES TO COLLECT, MANAGE, OR PROCESS SENSITIVE PERSONAL INFORMATION, AS SUCH TERM IS USED IN APPLICABLE PRIVACY LAWS. JIBE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CLIENT’S USE OF THE SUBSCRIPTION SERVICES TO COLLECT OR MANAGE SENSITIVE PERSONAL INFORMATION.
4.1.Jibe’s Proprietary Rights . Except as provided in Section 1.1, Jibe and its suppliers own and retain all right, title, and interest in and to the Subscription Services as well as all materials therein or transferred thereby (excluding Client Data and Client Materials), including without limitation the software and technology incorporated in or used to deliver the Subscription Services, Configuration Services, or any Professional Services, and all Intellectual Property Rights relating to the foregoing. “Intellectual Property Rights” mean all patents, copyrights, moral rights, publicity rights, trademarks, service marks, trade secrets, and other intellectual property rights, applications, renewals, and extensions thereof that may now exist or hereafter come into existence under any applicable Laws.
4.2. Client’s Proprietary Rights . Except as provided in this Section and Section 3.3, Client owns and retains all right, title, and interest in and to the Client Data and Client Materials, including all Intellectual Property Rights relating thereto. Client hereby grants to Jibe a nonexclusive, royalty-free, worldwide right during the Subscription Period and any applicable Renewal Period to use, transmit, distribute, modify, reproduce, display, create derivative works of, and store the Client Data and Client Materials for purposes including without limitation: (i) providing the Subscription Services, Configuration Services, and Professional Services, and any support or maintenance contemplated under the Agreement; and (ii) fulfilling its rights and obligations under the Agreement.
4.3.General Knowledge; Feedback. The Agreement will not be interpreted or construed to prohibit or in any way restrict either party’s right to use its general knowledge, skills, and experience, or either party’s right to perform any services or develop any products, provided this is done without use of the other party’s Confidential Information (as defined below) or Intellectual Property Rights. If Client provides Jibe with any suggestions, ideas, feedback, reports, error identifications or other information related to the Subscription Services or Client’s use and evaluation thereof, Client assigns to Jibe all right, title, and interest in and to all such information provided therein, including all Intellectual Property Rights therein.
5.1.Definition . “Confidential Information” means any and all confidential information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the terms and conditions of the Agreement, trade secrets, inventions, processes, technical information, algorithms, software, financial information, product plans, and other non-public business information. Notwithstanding anything to the contrary in the Agreement, the disclosing party’s Confidential Information will not include information that: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of or access to the Confidential Information; or (v) is obtained by the receiving party without restriction from a third party without breach of any confidentiality obligations.
5.2. Protection . The receiving party agrees that it will use and reproduce the Confidential Information of the disclosing party only for purposes of exercising its rights and performing its obligations under the Agreement and only to the extent necessary for such purposes, and will restrict disclosure of such Confidential Information to the receiving party’s employees, affiliates, consultants, or advisors who have a need to know and are subject to non-disclosure obligations substantially similar to those in this Section 5. The receiving party will not disclose Confidential Information to a third party without the prior written consent of the disclosing party. The receiving party will use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance to prevent disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. Notwithstanding the foregoing, it will not be a breach of the Agreement for the receiving party to disclose Confidential Information to the extent compelled to do so under applicable Laws, provided that, to the extent permitted thereby, the receiving party has given the disclosing party prior written notice and reasonable assistance to permit the disclosing party (at its cost) a reasonable opportunity to object to and/or limit the requirement to disclose under such Laws.
6. REPRESENTATIONS AND WARRANTIES
6.1.By Client . Client represents and warrants to Jibe that (i) it has full right, power, and authority to enter into the Agreement, (ii) the Client Materials will not infringe any Intellectual Property Rights of any third party, and (iii) it will comply with all applicable Laws in its use of the Subscription Services and the collection, use and disclosure of Client Data.
6.2. Disclaimer . THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SUBSCRIPTION SERVICES IS AT CLIENT’S OWN RISK. JIBE DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE AGREEMENT, THE SUBSCRIPTION SERVICES, AND ANY PRODUCTS, SERVICES OR ITEMS IT PROVIDES HEREUNDER, WHETHER ARISING BY LAW, COURSE OF DEALING OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE, OR WARRANTIES THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED BY LAW, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE SUBSCRIPTION PERIOD. THIS DISCLAIMER WILL APPLY EVEN IF IT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7.1. Jibe and Client agree to defend, indemnify, and hold harmless each other and all subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers, and directors from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorney’s fees) arising from: (i) use of and access to the Subscription Services; (ii) violation of any third-party Intellectual Property Rights; and (iii) violation of any applicable Laws.
8. TERM AND TERMINATION
8.1.Term . The Agreement shall continue for the Subscription Period and any applicable Renewal Periods set forth in the Sales Order.
8.2. For Cause . If a party materially breaches the Agreement, the other party may, upon thirty (30) days’ written notice identifying such breach, terminate the Agreement provided the other party has not cured such breach within such thirty (30)-day period. In the event Client materially breaches the Agreement, Jibe reserves the right to suspend Client’s access to the Subscription Services with immediate effect until Client cures such material breach. For the avoidance of doubt, suspending the Subscription Services will not terminate the Agreement or affect any of the parties’ rights or obligations under the Agreement.
8.3. Insolvency . Either party may, upon thirty (30) days’ written notice, terminate the Agreement in the event of any action, application, or proceeding being taken in respect of the other party for (i) a voluntary arrangement or composition or reconstruction of its debts; (ii) the presentation of an administration petition; (iii) its insolvency, winding up, or dissolution; (iv) the appointment of a liquidator, trustee, receiver, administrative receiver, or similar officer; (v) a petition for a bankruptcy order, or (vi) any similar action, application, or proceeding in any jurisdiction to which it is subject.
8.4. Effect . Upon expiration or early termination of the Sales Order, in whole or in part: (i) all license and rights granted to Client for the Subscription Services will immediately terminate; (ii) Client will immediately cease all use of the Subscription Services; and (iii) the provisions of the Agreement which reasonably are intended to survive such termination or expiration, including without limitation Sections 1.3, 3.3, 4, 5, 6.2, 7, 8.4, 8.5, 9 and 10 of the T&Cs, will remain in effect and survive any such termination or expiration. If Client terminates the Agreement for cause under Section 8.2, Jibe will issue a refund to Client for the unused pre-paid Fees for the terminated Subscription Service, pro-rated as of the termination date. If Jibe terminates the Agreement for cause under Section 8.2, all payment obligations under the Agreement that are not yet due and payable as of the termination date will immediately become due and payable by Client as of the termination date. Except as set forth in this Section 8.4, Client will not be entitled to any refunds of any pre-paid Fees upon termination of the Agreement.
8.5. Return . Client acknowledges and agrees that after expiration of the Subscription Period or termination of the Agreement, Jibe has no obligation to retain the Client Data related to the terminated Subscription Service and may delete such Client Data per Jibe’s standard operating procedures.
9. LIMITATIONS OF LIABILITY
9.1. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, AND USE OF THE SUBSCRIPTION SERVICES IN VIOLATION OF SECTION 1.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, RELATING TO OR ARISING IN CONNECTION WITH THE AGREEMENT OR ANY PART THEREOF, OR THAT RESULT FROM THE USE OR INABILITY TO USE THE PRODUCTS OR SERVICES PROVIDED THEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF, FROM OR IN CONNECTION WITH THE AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE LAST CLAIM ARISING.
9.2. . Each party acknowledges that the foregoing limitations are an essential element of the Agreement between the parties and that in the absence of such limitations the pricing and other terms set forth in the Agreement would be substantially different.
10.1.Interpretation. Any terms used but not defined herein shall have the meanings ascribed to them in the Sales Order.
10.2. Applicable Law . The Agreement will be governed by the laws of the State of New York, without reference to conflicts of law principles. Each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts of New York County, New York. The United Nations Conventions on Contracts for the International Sale of Goods does not apply to the Agreement.
10.3. Assignment . Neither party may assign the Agreement (including the Sales Order) without the other party’s prior written consent; provided, however, that either party may assign the Agreement, without the other’s consent, to a successor that acquires all or substantially all of the ownership interests in or assets of the assigning party, whether by merger, reorganization, acquisition, sale or otherwise, as long as the assigning party notifies the other party in writing thereof.
10.4. Force Majeure . Neither party will incur any liability to the other party for any delay or failure to perform any obligation under the Agreement (other than payment obligations) if such delay or failure is due to an event, occurrence, or cause beyond its reasonable control, including without limitation, acts of God, acts of terrorism, sabotage, strikes, riots, acts of government, failure of telecommunications, power outages, earthquakes, fire, flood or other casualty.