Jibe Inc. Global Terms & Conditions
These Global Terms and Conditions (including its attached schedules, the “GT&Cs“) apply to all Subscription Services provided by Jibe, Inc. (“Jibe“) to the client (“Client” or “Customer“) entering into a Jibe Sales Order which references the GT&Cs (the “Sales Order“). Upon the parties’ execution of the Sales Order, the parties agree that the terms and conditions of the GT&Cs are hereby incorporated by reference into the Sales Order as if they were set forth in full therein. Capitalized terms used but not defined herein will have the respective meanings assigned to them in the Sales Order.
1.1 Subscription Services. Each Services Attachment to the Sales Order contains a description of the Subscription Service to be provided (“Specifications“), as well as additional terms and conditions applicable to such Subscription Service. “Specifications” also include the online or written user instructions and/or documentation (if any) for a Subscription Service as may be made available by Jibe. For clarity, references to the “Subscription Services” include the tools, items and/or components, if any, that may be provided by Jibe to configure or enable Client to use such Subscription Services.
1.2 Configuration. If a Subscription Service requires configuration, training and/or other implementation services from Jibe (“Configuration Services“), they will be set forth in the applicable Services Attachment. Configuration Services are performed remotely and may need to be completed before certain Subscription Services can be used by Client. Unless otherwise set forth in the applicable Services Attachment: (i) Subscription Services are provided in the English language only, and Client will be responsible at its expense for all localization necessary to enable Client to use the Subscription Services in any other language (or Client may request localization from Jibe for an additional fee); (ii) Subscription Services do not include modifications to any non-Jibe applications to enable them to function properly with the Subscription Services; and (iii) additional fees will be charged for Configuration Services provided after the applicable Subscription Period has begun, whether related to changes in Client’s systems (e.g., third-party applicant tracking system (“ATS”), talent management systems), career and employment website (“Career Site“), or otherwise.
1.3 Support. The Subscription Services include support and maintenance as set forth in the Support Schedule attached (“Support“). Jibe reserves the right, in its sole discretion, to make improvements, bug fixes, or modifications, including discontinuing or changing features, to the Subscription Services (collectively, “Changes“), and to update the related user instructions and/or documentation (if any) to reflect such Changes, from time to time; provided however, that Jibe will give Client ninety (90) days’ notice (which may be by e-mail) before discontinuing, or materially reducing the functionality of, any significant feature of a Subscription Service (“Change Notice“). If Client does not agree to such Changes of discontinued or materially reduced functionality described in the Change Notice, Client may terminate the affected Subscription Service by sending Jibe written notice within 45 days after Client’ receipt of the Change Notice. Changes will be provided to Client when they are made generally available to Jibe’s other Clients. Support does not include support or maintenance of any Client or third-party applications, software or hardware. However, Client understands that continued functionality of the Subscription Services could be impacted by changes to its Career Site, ATS and other talent management systems, and agrees to provide Jibe with prior written notice thereof in accordance with the Support Schedule, as well as access to a staging environment to help ensure compatibility.
1.4 Client Responsibilities. Client agrees to perform the tasks and fulfill the responsibilities specified herein and in the applicable Services Attachment (collectively, “Client Tasks“). Client understands that provision of the Configuration Services is dependent on Client’s full and timely performance of the Client Tasks and that Client’s failure to do so may result in delays or inability to complete the Configuration Services. Client Tasks include, without limitation, providing (i) Client’s ATS login credentials, (ii) fully accurate information related to the ATS, Career Site, and other Client systems and applications as requested, (iii) any consents from Client’s vendors that may be required for Jibe to provide services to Client, and (iv) any logos, trademarks, or any other identifying words or marks used by and/or associated with Client to identify Client (“Client Marks“), data, information, links, templates, items and/or samples (e.g., corporate colors) needed for the Configuration Services (collectively, “Client Materials“). Client will 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.
2. ACCESS AND USE
2.1 License to Client. Subject to the terms and conditions in the Agreement, Jibe grants to Client and the entities that are controlled (i.e., more than 50% ownership or the right to direct management of the entity) by or under common control with Client (“Affiliates“) a non-exclusive, non-transferable, non-sublicensable, worldwide license to use, and to permit their respective End Users to use, the Subscription Service for Client’s or its Affiliate’s employment or recruiting purposes during the Subscription Period set forth in the applicable Services Attachment. “End Users” means (i) individuals using the Subscription Services under Client’s accounts (e.g., Client’s or its Affiliate’s employees and agents) (“Admin Users“) and (ii) individuals who are not Admin Users but who are involved in recruiting or employment activities with Client or its Affiliates (e.g., job applicants, job referrers). Client will be responsible to Jibe for ensuring that its Affiliates and Admin Users use the Subscription Services in accordance with the terms of the Agreement.
2.2 End User Accounts. End Users must access and use the Subscription Services in accordance with the applicable access procedures established by Jibe from time to time, which may include issuance by Jibe of usernames and/or passwords for Admin Users and/or Affiliates. Client is solely responsible for all access, use, and activities occurring under its accounts, and for maintaining the confidentiality of all Admin Users’ usernames and passwords. Client will not to 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. For Subscription Services that are licensed on a per user, per seat or other per unit basis, Jibe may, during the Subscription Period and for six (6) months thereafter, at its expense, verify that Client’s use of the Subscription Service complies with the number of licenses purchased. Any such verification will not unreasonably interfere with Client’s business activities, and will be limited in scope to the minimum amount necessary to verify the license fees accurately reflect the number of actual Admin Users using the Subscription Service. If such verification shows that Client is using the Subscription Service in any way not permitted under the Agreement and which would require additional license fees, Client will pay the applicable Fees within thirty (30) days of invoice receipt, with such underpaid fees being the license fees as per Jibe’s then-current license fee list. If underpaid fees are in excess of ten percent (10%) of the value of the license fees then being paid for the Subscription Service, then Client will pay such underpaid fees and Jibe’s reasonable costs of retaining a third party for conducting the verification (if applicable). Jibe reserves the right to suspend or terminate any account or username that Jibe reasonably determines may have been used by an unauthorized third party or otherwise in violation of the terms of the Agreement.
2.3 Restrictions. Client agrees not to engage in any of the following prohibited activities: (i) modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Subscription Services or any part thereof (including any non-Client owned content accessible thereon), except to the extent expressly permitted by applicable law; (ii) marketing, selling, licensing, sublicensing, distributing, publishing, publicly displaying, reproducing, renting, leasing, loaning, disclosing, assigning or otherwise transferring to a third party, the Subscription Services (or any copy or part thereof) or any non-Client owned content accessible on the Subscription Services, in whole or in part; (iii) using the Subscription Services, in whole or in part, for third-party training, commercial time-sharing, commercial solicitation or unlawful purposes, or service bureau use; (iv) copying, framing, or mirroring, any part of the Subscription Services in any medium, including without limitation by any automated or non-automated “scraping”; (v) removing, obscuring, or altering any intellectual property notice related to the Subscription Services; (vi) transmitting spam, chain letters, or other unsolicited e-mail; (vii) attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running, the Subscription Services; (viii) taking any action that imposes, or may impose at Jibe’s sole discretion an unreasonable or disproportionately large load on Jibe’s infrastructure; (ix) uploading viruses, worms, Trojan horses, or other malicious software agents (collectively, “Viruses”) through the Subscription Services; (x) impersonating another person or otherwise misrepresenting Client’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide Client’s identity; (xi) accessing the Subscription Services to build a competitive service; (xii) bypassing the measures Jibe may use to prevent or restrict access to the Subscription Services, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Subscription Services or the content therein; or (xiii) using any automated system, including without limitation robots, spiders, and offline readers, to access the Subscription Services in a manner that sends more request messages to the Jibe servers than a human can reasonably produce in the same period of time by using a conventional online web browser.
2.4 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 (e.g., online social networks), and that Jibe has no control over, and will have no obligations with respect to, the Internet or such websites, networks and/or systems.
2.5 Laws. Each party will remain responsible for its own compliance with all applicable foreign, federal, state and local laws, statutes, rules, and regulations, and all judicial, governmental, or administrative orders, judgments, decrees and rulings or other enforceable requirements of courts or other governmental bodies of competent jurisdiction (collectively, “Laws“), including without limitation, U.S. Employment laws, as well as U.S. and foreign privacy, security, data protection, and marketing laws, regulations, and guidelines (“Privacy Laws“). Without limiting the foregoing, Client agrees that it will remain solely responsible for ensuring that the content of the Client’s job postings and the job application processes it uses comply with all Laws applicable to Client.
3. CLIENT DATA; PRIVACY
3.1 Client Data. Some features of the Subscription Services allow Client and/or its End Users to post, upload, submit, transmit, or otherwise provide or make available certain data and content, including Personal Information (collectively, “Client Data“). “Personal Information” means any information relating to an identified or identifiable natural person, regardless of that person’s domicile and all other data and information attributed to the term “Personal Information,” “Personal Data,” or similar terms in applicable Privacy Laws. Jibe will only process Client Data for the purposes of providing the Subscription Services (including Configuration Services and Support) in accordance with the Agreement. As between the parties, Client owns all right, title and interest to all Client Data, and Jibe does not own, control or license Client Data, except so as to provide the Subscription Services as contemplated by the Agreement. Client acknowledges and agrees that, as between the parties, it is solely responsible for any and all Client Data, whether provided by Client or its End Users, and the consequences of providing, posting, or transmitting such Client Data by Client or its End Users. Jibe takes no responsibility and assumes no liability for any Client Data that Client, any End User, or any third party posts, uploads, or sends using the Subscription Services.
3.2 Client Privacy and Security. Client agrees that it is solely responsible for posting all applicable privacy policies or notifications on its Career Site and/or other Client website(s), for making all appropriate disclosures to visitors to its Career Site and/or other Client website(s), and to other End Users, and for obtaining any necessary consent(s) from such individuals, with respect to Client’s collection and use of information, including Client Data and including Client’s disclosure of Client Data to service providers such as Jibe. Client agrees that it will not use the Subscription Services to collect, process, or store bank account information, credit or debit card information, Personal Information pertaining to children under 13, or health or medical information.
3.3 Jibe Privacy and Security. Jibe certifies to the U.S. Department of Commerce under the EU-US Safe Harbor Framework for the transfer of Personal Information to the U.S. Jibe will maintain commercially reasonable administrative, physical and technical measures to help protect the security, confidentiality, and integrity of Client Data. However, Client acknowledges that Jibe cannot guarantee that unauthorized third parties will never be able to defeat those measures, and is not responsible for the security measures of any third parties with whom Jibe interacts (such as social networks) in the course of providing its services.
3.4 Prohibitions. Client agrees not to post, provide or transmit Client Data that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to any person or animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content or otherwise; (iv) contains any information or content that Jibe deems to be unlawful (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets), harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; or (vi) contains any content that Client or its Admin User does not have a right to make available. Jibe reserves the right, but is not obligated, to monitor and/or remove any Client Data that Jibe believes, in its sole discretion, violates this Section.
3.5 Use of Client Data and Client Materials. Client grants, and Client represents and warrants that it has all rights necessary to grant, to Jibe a non-exclusive, royalty-free, worldwide right during the term of the Agreement to use, , transmit, distribute, modify, reproduce, display, create derivative works of, and store (if requested by Client or set forth in the applicable Services Attachment) the Client Data and the Client Materials solely for the purposes of (i) providing the Subscription Services, Support and Configuration Services as contemplated in the Agreement, and (ii) enforcing its rights under the Agreement.
3.6 Anonymized Data. Client agrees that Jibe may collect, track, analyze and use Client Data or related data, including data about Client’s access and use of the Subscription Services and data and analytics derived from Client Data, for purposes of operating, analyzing, improving or marketing Jibe’s products or services. If Jibe shares or publicly discloses information (e.g., in marketing) that is based on or derived from Client Data, or data related to Client’s access and use of the Subscription Services, such information or data will be aggregated or anonymized to reasonably avoid identification of a specific Client or specific individual (whether by name or otherwise) (“Anonymized Data“). By way of example only, Jibe may (i) track the number of Admin Users on an anonymized aggregated basis as part of Jibe’s marketing efforts to publicize the total number of users of the Subscription Services, (ii) analyze aggregated usage patterns for Jibe’s product development efforts, or (iii) publish or present statistics about recruiting or applicant trends. Client further agrees that Jibe will have the right , both during and after the term of the Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense and create derivative works of the Anonymized Data.
3.7 Breach Notice. Jibe will promptly notify Client after becoming aware of any confirmed breach of Jibe’s network that resulted in unauthorized disclosure of any Client account or Client Data (“Breach Incident“). For each Breach Incident, (i) Jibe will use reasonable efforts to cooperate with Client by providing information regarding such Breach Incident; and (ii) if such Breach Incident triggers any third party notice requirements under applicable Laws, Client agrees that, as the owner of the Client Data, Client will be responsible for the timing, content, cost and method of any such notice and compliance with such Laws.
4.1 Jibe’s Proprietary Rights. Except as provided in Section 2.1, Jibe and its suppliers own and retain all right, title and interest in and to the Subscription Services, and 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 Changes, images, text, graphics, and any content belonging to other Clients, and all IP Rights related to the foregoing and derivative works of the forgoing. “IP Rights” means all patents, copyrights, mask works , moral rights, publicity rights, trademarks, service marks, goodwill, trade secrets and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the Laws of any jurisdiction.
4.2 Client’s Proprietary Rights. Except as provided in Sections 3.5 and 3.6, Client owns and retains all right, title and interest in and to the Client Data and Client Materials, including all IP Rights relating thereto.
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 perform any services or develop any products, provided this is done without use of the other party’s Confidential Information or IP 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 (“Feedback“), Client assigns to Jibe all right, title and interest in and to all Feedback, including all IP Rights therein.
5.1 Definition. “Confidential Information” means any and all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving 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, 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 Receiving Party; (ii) was known to Receiving Party, without restriction, at the time of disclosure; (iii) is disclosed with the prior written approval of Disclosing Party; (iv) was independently developed by Receiving Party without any use of or access to the Confidential Information; or (v) is obtained by Receiving Party without restriction from a third party without breach of any confidentiality obligations.
5.2 Protection. Receiving Party agrees that it will use and reproduce the Confidential Information of 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 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. Receiving Party will not disclose Confidential Information to a third party without the prior written consent of Disclosing Party. 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 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 Receiving Party to disclose Confidential Information to the extent compelled to do so under applicable Laws, provided that, to the extent permitted thereby, Receiving Party has given Disclosing Party prior written notice and reasonable assistance to permit 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 Jibe. Jibe represents and warrants to Client that (i) it has full right, power, and authority to enter into the Agreement; (ii) the Subscription Services will conform in all material respects with the applicable Specifications; (iii) it will perform the Configuration Services in a professional and workmanlike manner in accordance with industry standards; (iv) it will not knowingly introduce any Viruses into Client’s computer systems, and will use industry-standard Virus detection program(s) to process the Subscription Services before making them available to Client so that the Subscription Services will be free of Viruses that were detected by such program(s); (v) the Subscription Services will not infringe any copyright, trademark, or registered United States patent or misappropriate any trade secret of any third party; and (vi) it will comply with all applicable Laws in performing its obligations under the Agreement.
6.2 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 Marks will not infringe any copyright, trademark, or registered United States patent or misappropriate any trade secret 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.
6.3 Remedies; Exclusions. Jibe will use commercially reasonable efforts to re-perform or correct any services that do not comply with the warranties set forth in Section 6.1(ii), (iii) or (iv); provided that Client gives Jibe written notice of the noncompliance (in reasonable detail). If, after using commercially reasonable efforts, Jibe is unable to correct the noncompliance, Client may terminate the Sales Order as to the non-complying Subscription Service upon prior written notice, and such termination will constitute Client’s sole and exclusive remedy, and Jibe’s sole and exclusive obligation, with respect to any noncompliance with such warranties. Notwithstanding anything to the contrary in the Agreement, the warranties in Section 6.1 will not apply to any noncompliance to the extent caused by (i) any items, products, software, hardware or technology of Client or a third party (including by combination therewith), unless authorized in writing by Jibe, (ii) modification or misuse by Client or a third party (unless authorized in writing by Jibe), (iii) changes in the ATS platform, Career Site or other system of Client (or any portion thereof) after Jibe’s provision of the relevant services, or (iv) problems with Client’s or an End User’s network, desktop, software, hardware or Internet connectivity, including electrical or Internet access disruptions.
6.4 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6.1, 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 By Jibe. Jibe will indemnify and defend Client and its directors, officers, employees and agents against, and will pay any costs or damages that may be finally awarded in respect of, any third party claims, proceedings, liabilities, costs or damages, including reasonable attorneys’ fees and court costs (collectively, “Claims“), arising from the infringement or misappropriation by the Subscription Services of any third party’s copyright, trademark, trade secret or registered United States patent. In addition, if the Subscription Services (or part thereof) is held or believed by Jibe to infringe, Jibe may at its sole expense and option, either (a) obtain the right for Client to continue using it, (b) replace or modify it to avoid the infringement, provided the replacement or modification provides substantially similar functionality, or (c) if none of the foregoing remedies is commercially feasible, terminate the applicable Subscription Service and refund the unused pro-rata portion of the Fees for the terminated Subscription Service.
7.3 Process. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of the Claim (provided however, the failure to give timely notice will not relieve the indemnifying party of its obligations under this Section 7 except to the extent that such failure materially impairs the ability of the indemnifying party to defend); (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such Claim; and (iv) not admitting any fault or liability of the indemnifying party or itself.
7.4 Exclusions. Notwithstanding anything to the contrary in the Agreement, Jibe’s obligations under this Section 7 will not apply to any infringement Claim to the extent the infringement arises from: (i) items, products, software, hardware or technology not provided by Jibe, including by combination therewith, unless the Claim would have arisen solely from the use of the Subscription Services without such combination; (ii) use in a manner contrary to the terms of the Agreement; (iii) modification by Client or a third party (unless authorized in writing by Jibe); (iv) failure to use Changes made available to Client without charge by Jibe; or (v) Client Data.
8.1 For Cause. If a party materially breaches the Agreement, the other party may, upon thirty (30) days’ written notice identifying such breach, terminate the Sales Order as to the Subscription Service(s) thereunder affected by such breach, provided the other party has not cured such breach within such thirty (30)-day period.
8.2 Insolvency. Either party may, upon thirty (30) days’ written notice, terminate the Sales Order 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.
8.3 Suspension. Jibe may suspend Client’s and/or End User’s accounts or access to the Subscription Service(s) in the event of: (i) an order, demand or request from a governmental or other regulatory organization or body; (ii) Client’s failure to pay undisputed amounts due after notice and failure to cure in accordance with the Agreement; or (iii) an allegation that such Subscription Service infringes a third party’s IP Rights. Such suspension will be upon written notice to Client, unless the suspension is necessary to comply with legal process or to prevent imminent harm to Jibe’s systems or the Subscription Service(s), in which case Jibe will provide notice as soon as practicable. Suspending the Subscription Services will not terminate the Sales Order, except that for any period of suspension under clause (iii) above, (A) Client will not be charged any Fees during such period of suspension (or if Fees for such period were pre-paid, Client will receive a credit) and (B) Client may terminate the Sales Order as to the affected Subscription Service(s) upon prior written notice if such period extends for fifteen (15) days or more.
8.4 Effect. Upon expiration of the Subscription Period for a Subscription Service or early termination of the Sales Order as to the affected Subscription Service(s) thereunder: (i) all license and rights granted to Client to the affected Subscription Service(s) will immediately terminate; (ii) Client will immediately cease all use of such Subscription Service(s); (iii) if requested by Client, Jibe will provide reasonable assistance to Client in transitioning the Client Data for such Subscription Service(s) in-house to Client at Jibe’s standard rates for such services (unless Client has terminated for cause under Section 8.1, in which case such assistance will be provided at no charge); and (iv) the provisions of the Agreement which reasonably are intended to survive such termination or expiration, including without limitation, Sections 2.3, 3.6, 4, 5, 6.4, 7, 8.4. 8.5, 9 and 10 of the GT&Cs, will remain in effect and survive any such termination or expiration. If the Sales Order (or affected Subscription Service thereunder, as the case may be) is terminated by Client for cause under Section 8.1, Jibe will issue an invoice credit (or refund, if no other Sales Orders remain outstanding) to Client for the unused pre-paid Fees for the terminated Subscription Services pro-rated as of the termination date. If the Sales Order (or affected Subscription Service thereunder, as the case may be) is terminated by Jibe for cause under Section 8.1, all payment obligations under such Sales Order (or for the affected Subscription Service thereunder, as the case may be) 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 Sales Order as to the affected Subscription Service. Expiration or early termination of the Sales Order as to the affected Subscription Service thereunder will not affect any other Subscription Services under such Sales Order (if multiple Subscription Services were ordered thereunder) or any other outstanding Sales Orders.
8.5 Return. Client acknowledges and agrees that after expiration of the Subscription Period or termination of the Sales Order as to the affected Subscription Service, 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. However, Jibe will return or destroy such Client Data to the extent obligated under, and in accordance with, the Services Attachment applicable to the terminated Subscription Service. Notwithstanding any of the foregoing, Jibe may retain Anonymized Data after termination of the Subscription Services.
9. LIMITATIONS OF LIABILITY
9.1 EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, AND USE OF THE SUBSCRIPTION SERVICES IN VIOLATION OF SECTION 2.3, 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.
9.2 EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, AND USE OF THE SUBSCRIPTION SERVICES IN VIOLATION OF SECTION 2.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF, FROM OR IN CONNECTION WITH THE AGREEMENT OR ANY PART THEREOF, OR ANY PRODUCTS OR SERVICES PROVIDED THEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY ON WHICH SUCH LIABILITY IS BASED, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE LAST CLAIM ARISING.
9.3 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 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; and provided further that if use of the Subscription Services by Client’s successor requires any Configuration Services (e.g., new configurations), Jibe will not be obligated to provide such Configuration Services until Jibe and such successor agree in writing to the applicable fees for such services. Any assignment made in conflict with this provision will be void.
10.2 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.
SUPPORT SCHEDULE to the GT&Cs
SERVICE LEVEL AGREEMENT
1. Support Services:
- Contact Methods:
- Telephone: 1-212-380-1771
- Days and Hours of Operation: 24 hours/day, Monday through Sunday including holidays.
Support Services will also include, where applicable, informational webinars for Client’s HR and other employees using the Services, as well as updates (if and as needed) to any applicable instruction manual and informational site related to the Services provided to Client.
2. Issue Reporting: Client is allowed two (2) contacts per Subscription Service, per installation who may report issues with the Services. All issues should be funneled through these contacts. The contacts should verify an issue is valid before reporting it to Jibe’s Technical Support. Issues must be reported with a detailed problem description, a method for repeatedly reproducing the problem, and reasonable access to the contact who reported the issue. Any delay in providing the foregoing will extend the response times set forth in this agreement.
3. Support Response: Jibe provides responses based on issue priority. The following table indicates the target resolution time by priority. These are the goals that the Jibe’s Technical Support strives to achieve. Although there are various circumstances that can prevent the obtainment of these goals, Jibe will strive to meet these goals whenever possible. These targets are subject to change based on revised Jibe needs and historical performance.
Business Day — Business Days are defined as 9:00 a.m. United States (“U.S.”) Eastern Time Zone to 6:00 p.m. U.S. Eastern Time Zone, Monday through Friday excluding U.S. National Holidays.
Business Hour — Any sixty (60) minute period within the aforementioned Business Day.
|P1-HIGH||Immediate if live phone contact; within 1 hour if on email||2 Business Days||20 Business Days|
|P2-MEDIUM||Within 3 Business Hours||5 Business Days||As Appropriate (may be included in the next software release rather than as a patch, depending on the issue)|
|P3-LOW||Within 8 Business Hours||10 Business Days||As Appropriate (typically included in the next software release rather than as a patch)|
|ENHANCEMENT REQUEST||Within 48 Business Hours||N/A||As applicable to the enhancement|
NOTE: The following defines the categories above:
Acknowledgement: Jibe’s Technical Support acknowledges via email that Client has logged an issue and provides the issue number to Client. If Client phones in a Critical issue Jibe’s Technical Support will acknowledge via a returned phone call.
Workaround: If possible, Jibe will implement a temporary workaround to allow Client to move past the issue and continue processing. Client will implement temporary procedures provided by Jibe that enables comparable availability, stability, and/or performance while Jibe works on permanent solutions. If a workaround is not possible, Jibe will move directly to providing a permanent fix.
Permanent Fix: Jibe will deliver a permanent fix that resolves the issue within the stated time frame. When the fix is delivered, Client is expected to test the fix in their environment as soon as possible. Once Client has tested and acknowledged that the fix has resolved the issue, the Help Desk case for the issue will be closed. If the fix does not resolve the issue, Client should notify Jibe’s Technical Support immediately. This contact should include detailed test results documenting the fact that the issue has not been resolved. Jibe’s Technical Support will acknowledge receipt of this issue, investigate, and provide a revised fix (if needed) to Client in a timely manner.
NOTE: If additional information is required from Client to resolve the issue, Jibe’s Technical Support will request that information. The time requirements stated in the table above are suspended during the time the Help Desk is waiting for a response from Client. Once a response is received, the time requirements resume where they left off.
When an issue is logged with Jibe’s Technical Support and further information is requested from Client, Jibe Technical Support requires a timely response. Jibe’s Technical Support will send a follow-up email to Client on the fifth (5th) business day following the initial request for information to remind Client that a response is required. Five (5) business days later a second (2nd) follow-up email will be sent to Client requesting a response.
Definition of standard severity levels:
P1 — High
Examples: Imports/Exports not working except by manual intervention by Client staff; major functionality broken or compromised and a workaround exists; slow performance which severely impedes productivity; exception errors which allow processing and functionality to continue; incorrect calculated values.
P2 — Medium
Examples: Minor functionality broken where a workaround exists; marginal performance which slightly impedes productivity; Help system issues.
P3 — Low
Examples: Cosmetic issues, application inconsistencies where normal business functions are unaffected.
4. Enhancement Requests
Enhancement requests may be made to further enhance the functionality of the Services. Enhancements or code alterations to the Services are considered Change Orders. All Change Orders received from Client are prioritized in terms of their fit with Jibe’s roadmap, the usability of the Change Order across a broader spectrum of Clients, costs, resources, etc. All Change Orders are considered billable engagements and Jibe reserves the right to refuse any Change Orders for any reason.
5. Work plan for open cases:
All cases are initially responded to and owned by the Technical Support team member. The assigned support engineer will continue to work on the case until it is resolved to Client’s satisfaction. Updates will be communicated to Client by the support engineer based upon the frequency and method desired by Client.
6. Closure of Cases:
Once a viable solution to a case is determined by Jibe and confirmed by Client or deployed, the case will be closed in accordance to the following guidelines:
- Closure via support assistance on the first call – At the conclusion of the call, the case will be closed.
- Closure via investigation and resolution of an open support case – Once a viable solution (which meets Client’s requirements) is found and communicated or provided to Client, the case will remain open for five (5) business days pending Client confirmation. If a confirmation from Client is not received within five (5) business days from the solution communication, the case will be closed. After this period, if a case needs to re-opened, a new case will be initiated with reference to the closed case.
7. Browsers Supported For Authorized Users: Jibe will support use of Internet Explorer (“IE”) browsers by authorized users. When a new version of an IE browser is commercially released, Jibe will continue to support the previous version and, for at least six (6) months, the next-previous version (i.e., two (2) versions back); provided that Microsoft is still providing support for the previous versions. New versions of IE browsers will be fully supported by Jibe as soon as possible, but in no event later than twelve (12) months after the general availability of a new version. Note newer versions of IE running in IE 7 compatibility mode will not be supported either. Jibe will also support Firefox >= 10, Chrome and Safari >=5.
8. Mobile Devices Supported: Jibe will support webkit enabled mobile browsers with a native webkit browser version of 534 or greater and with a greater than 2% market share. In addition, Jibe will support IE Mobile 10 for mobile browsers.
9. For External Users: At a minimum, Jibe will at all times support browser versions which comprise at least ninety percent (90%) of the total browser usage in the marketplace. Browser usage percentages will be based on actual measurement of browsers attempting access and accessing Client’s servers in the immediately preceding calendar quarter.
10. Client systems’ upgrades: Incremental updates (i.e., version 1.1 to version 1.2) to Client’s ATS are supported by Jibe provided that Jibe is provided three (3) weeks advanced notice and access to a staging environment to ensure quality of services is maintained. Major updates will require five (5) weeks advanced notice and access to a staging environment that mirrors Customer’s production environment to ensure compatibility.
11. Scheduled Downtime for Maintenance: Jibe retains the right to have 6 hours of downtime every year for maintenance. Scheduling of downtime will be outside high traffic times to minimize the impact. All Clients will receive two (2) weeks of notice before any downtime is conducted.
12. Unscheduled Downtime: If the Client is unable to access the Service for fewer than 99.9% of the total hours in any calendar month as a result of Downtime (as defined below), the Client shall be entitled to apply for Service Credits as follows:
12.1 For each complete hour of Downtime, the Client shall be entitled to a Service Credit of equivalent hours added to the life of their contract
12.2 Claims made pursuant to clause 12.1 above are subject to the following: a) Claims must be made within one calendar month of the month to which it relates and b) the Claim for any given month must be at a minimum 1 hour.
12.3 “Downtime” means a period of time commencing when the Client reports to Jibe via telephone, and Jibe acknowledges the report, that the Client Equipment is unable to utilize the Service, by reason of a failure on the part of Jibe to provide the Service, which includes the following:
i) Connectivity Services (internet access): total loss of connectivity between the whole Internet and the Service Demarcation Point
ii) Connectivity Services (site to site): total loss of connectivity between the Service Demarcation Points at each Site
iii) Power Service: Power failure of all power supply Demarcation Point which are available to the Client
12.4 “Service Demarcation Points” means Jibe’s web application.
12.5 “Client Equipment” includes, depending on the service purchased, Client’s applicant tracking system, Client’s job feed and any 3rd party assessments or 3rd party hosted assets with which Jibe is integrated as part of the service.
12.6 Downtime excludes for the avoidance of doubt periods of apparent downtime when the reason is (a) failure of the Client Equipment, (b) the Client Equipment has caused a power or network failure, (c) the failure would have been avoided if the Client had elected, as part of the Services, to take advantage of the availability of more than one power or network supply, (d) during periods of Planned Outages or Emergency Outages, or (e) an event as defined by clause 8.4 of the Master Services Agreement (Force Majeure). Downtime must be reported by the Client at the time of the Downtime to allow Jibe to reasonably fulfill its obligations under this Service Level Agreement.
13. Exclusions from Support Services: Notwithstanding anything to the contrary in this Exhibit or the Agreement, Support Services will not include, and Jibe will not be obligated to address, problems or Errors due to any of the following: (a) any items, products, software, hardware or technology of Client or a third party, (b) modification or misuse of the Services other than by Jibe, (c) problems with Client’s, an applicant’s or an authorized user’s network, desktop, third party software applications, hardware or network connectivity to the Services, including electrical or internet access disruptions, or (d) problems with any social network (e.g., Facebook) that can be accessed by an applicant using the Services, including service disruptions or delays.