Platform Global Terms and Conditions

Platform Global Terms and Conditions

These Global Terms and Conditions, as may be updated by Jibe from time to time, (including its attached schedules, these “GT&Cs”) apply to any proprietary Jibe subscription services or products (each, a “Subscription Service”) provided by Jibe, Inc. (“Jibe”) to the client (“Client” or “Customer”) entering into a Jibe Sales Order which references these GT&Cs (the “Sales Order”).  The parties acknowledge that the terms and conditions of this GT&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 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 (as defined below) to use, the Subscription Service(s) for Client’s or its Affiliate’s employment or recruiting purposes during the Subscription Period as set forth a written Sales Order entered into from time to time by the parties.  “End Users” means (i) Client’s or its Affiliate’s employees and agents assigned a licensed login name and password to access to the Subscription Service(s) under Client’s accounts (“Named Users”), and (ii) individuals using the Subscription Service(s) functionality for recruiting or employment activities with Client or its Affiliates who do not require Named User license credentials, such as job applicants and candidates (“Applicants”), job referrers, and recruiters, but who may be subject to other licensing metrics as set forth in the applicable Sales Order.  Client will be responsible to Jibe for ensuring that its Affiliates and End Users use the Subscription Service(s) in accordance with the terms of the Agreement.

1.2 Subscription Services. Each Sales Order for Subscription Services contains a description of the Subscription Service to be provided by Jibe (“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.  “Subscription Service(s)” shall also include the tools, items and/or components, if any, which may be provided by Jibe to enable Client to use such Subscription Service(s).

1.3 Use of License; Named User Access.  Named Users must access and use the Subscription Service(s) in accordance with the applicable access procedures established by Jibe from time to time.  Unless otherwise stated in the applicable Sales Order, Jibe will assign all Client login credentials for the Subscription Service(s); provided, however, that Client is solely responsible for all access, use, and activities occurring under its accounts, including without limitation, safekeeping Client’s login credentials for the Subscription Service(s), and for maintaining the confidentiality of all Named Users’ usernames and passwords.  Certain Subscription Services are licensed by Jibe based on metrics other than Named Users (e.g., number of licensed e-mails, alerts or job postings). 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.  For Subscription Service(s) that are licensed on a per user, per seat or other per unit/metric 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 Named Users using the Subscription Service.

1.4 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 Service(s) 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 Service(s) (or any copy or part thereof) or any non-Client owned content accessible on the Subscription Service(s), in whole or in part; (iii) using the Subscription Service(s), 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 Service(s) 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 Service(s); (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 Service(s); (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 Service(s); (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 Service(s) to build a competitive service; (xii) bypassing the measures Jibe may use to prevent or restrict access to the Subscription Service(s), including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Subscription Service(s) or the content therein; or (xiii) using any automated system, including without limitation robots, spiders, and offline readers, to access the Subscription Service(s) 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.

1.5 Acknowledgment.  Client acknowledges and agrees that many features and functionalities of the Subscription Service(s) 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.

1.6 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.

2.SERVICES

2.1 Configuration Services.  If a Subscription Service requires configuration and/or other implementation services from Jibe (“Configuration Services”), they will be set forth in the applicable Sales Order.  Configuration Services are performed remotely and may need to be completed before certain Subscription Services can be used by Client. Client understands that continued functionality of the Subscription Service(s) could be impacted by changes to its Career Site, ATS and other talent management systems, and agrees to provide prior written notice to Jibe of any changes to its career and employment website (“Career Site”), third-party applicant tracking system (“ATS”) (including, for example, periodic ATS upgrades) and other talent management systems (collectively, “Client Systems”) in order to allow Jibe sufficient time to implement any necessary modifications to the Subscription Service(s). Client understands that such changes shall be considered additional Professional Services as set forth in Section 2.2.

2.2 Professional Services. Additional services may also be provided by Jibe to Client and such services are in addition to the Configuration Services set forth in the applicable Sales Order and will be provided by Jibe subject to the mutual agreement of the parties (“Professional Services”). Professional Services include, but are not limited to, Configuration Services provided after the Delivery Date, Client Systems changes, additional Client Systems integrations and other services required by the Client.

2.3 Change Management.  All requests for changes or modifications to the Subscription Service(s), the Configuration Services or any agreed upon Professional Services must be made in writing and will be submitted by the requesting party to the other party. The written request will describe in detail the affected terms, including without limitation, applicable revisions to the rates, budget, schedule, and services, including any deliverables as agreed to by Jibe and Client.

2.4 Support.  The Subscription Service(s) include support and maintenance as set forth in the attached Exhibit A Support Schedule (“Support”).  Jibe reserves the right, in its sole discretion, to make improvements, bug fixes, or modifications, including discontinuing or changing features, to the Subscription Service(s) (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 Service(s) 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.

2.4 Acknowledgements; Client Tasks.  Client agrees to perform the tasks and fulfill the responsibilities specified herein and in the applicable Sales Order (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 further acknowledges and agrees that Jibe will not be obligated to begin work on the Configuration Services hereunder unless and until Client has provided Jibe with all of the information and items necessary for configuring the Subscription Service(s) and Jibe will not be liable for any delays resulting from Client’s failure to timely provide such material.  Client Tasks include, without limitation, providing (i) all necessary consents and credentials to access Client’s ATS Sites, (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, customized fonts (to include any required licenses), 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 Service(s).

3. FEES AND PAYMENT

3.1 Fees. Client will pay the fees due under the Agreement, as well as any sales, excise, service, use, value-added or other taxes or duties now or hereafter imposed upon or required to be collected by Jibe by any governmental authority arising from the Subscription Service(s) and any additional Services provided under the Agreement, excluding taxes based upon Jibe’s net income (collectively, “Fees”).  Client will pay any annual license fee for use of the Subscription Service(s) as set forth in the Sales Order (“Annual License Fees”).  If any payment is subject to any withholding tax, Client will reimburse Jibe for such withholding tax.  Client agrees to reimburse and hold Jibe harmless from any deficiency (including penalties and interest) relating to taxes that are Client’s responsibility under this Section.

3.2 Invoices; Payment.  Unless otherwise set forth in the Sales Order, Jibe will invoice Client for all Fees in full and in advance.  Except to the extent set forth in the Agreement, Fees are non-cancelable and non-refundable.  Client will pay all invoices within thirty (30) days of the invoice date.

3.3 Late Fees.  If Client fails to pay any Fees (other than Fees subject to a good faith dispute) when due, then at Jibe’s sole discretion, (i) any overdue amounts will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less, computed and compounded on a daily basis from the date due until the date paid, (ii) in the event of any action by Jibe to collect any overdue amount, Client will pay or reimburse the costs of collection (including reasonable attorneys’ fees and court costs), and (iii) Jibe may condition future subscription renewals and new sales orders on invoice terms shorter than those contained herein.

4. CLIENT DATA; PRIVACY

4.1 Client Data. Some features of the Subscription Service(s) 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 Service(s) (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 Service(s) 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 makes no representations or warranties with respect to the accuracy or completeness of any data provided by Applicants or visitors to Client’s Career Site that is included in the Client Data, and Client acknowledges and agrees that any Personal Information provided to Client by such Applicants or visitors is not owned, controlled, provided by or licensed by Jibe. In addition, 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 Service(s).

4.2 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 Service(s) 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.

4.3 Jibe Privacy and Security. Jibe complies with applicable European Union Privacy Laws regarding the collection, use and retention of personal data. In addition, Jibe reasonably adheres to applicable European Union notice, transfer, security, data integrity, access, and enforcement rules and regulations. 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.

4.4 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 partys 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 Named 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.

4.5 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 Sales Order) the Client Data and the Client Materials for purposes including without limitation (i) providing the Subscription Service(s), Support and Configuration Services as contemplated in the Agreement, and (ii) enforcing its rights under the Agreement. In addition, Client agrees that Jibe may use aggregate statistics about Client Data or related 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.

4.6 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.

5. OWNERSHIP

5.1 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 Service(s), 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 Service(s) 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.

5.2 Client’s Proprietary Rights.  Except as provided in Section 4.5, Client owns and retains all right, title and interest in and to the Client Data and Client Materials, including all IP Rights relating thereto.

5.3 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 Service(s) 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.

6. CONFIDENTIALITY

6.1 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.

6.2 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 6.  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.

7. REPRESENTATIONS AND WARRANTIES

7.1 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 Service(s) 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 Service(s) before making them available to Client so that the Subscription Service(s) will be free of Viruses that were detected by such program(s); (v) the Subscription Service(s) 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.

7.2 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 Service(s) and the collection, use and disclosure of Client Data.

7.3 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 7.1(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 7.1 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.

7.4 Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1, JIBE DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE AGREEMENT, THE SUBSCRIPTION SERVICE(S), 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 SERVICE(S) 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.

8. INDEMNIFICATION 

8.1 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 Service(s) of any third party’s copyright, trademark, trade secret or registered United States patent.  In addition, if the Subscription Service(s) (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.

8.2 By Client.  Client will indemnify and defend Jibe, and its directors, officers, employees and agents against, and will pay any costs or damages that may be finally awarded in respect of, any Claims arising from: (i) the infringement or misappropriation by any Client Marks of any third party’s copyright, trademark, trade secret or registered United States patent; or (ii) Client’s collection or use of the Client Data in a manner that allegedly violates any Privacy Laws or Client’s privacy policy.

8.3 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 8 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.

8.4 Exclusions.  Notwithstanding anything to the contrary in the Agreement, Jibe’s obligations under this Section 8 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 Service(s) 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.

9. TERM AND TERMINATION

9.1 Term.  Unless earlier terminated under this Section 9, or as otherwise set forth in the Sales Order, each Sales Order will have an initial term of three (3) years beginning on the Effective Date, and shall thereafter automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew at least thirty (30) days prior to expiration of the then-current term.

9.2 Subscription PeriodJibe will provide the Subscription Service(s) ordered by Client under the Sales Order during its applicable Subscription Period.  The “Subscription Period” for each Subscription Service, and the renewal terms thereof, will be as set forth in the Sales Order for such Subscription Service.  If the Sales Order includes multiple Subscription Service(s), the Sales Order will remain outstanding (and the applicable GT&C terms will remain in effect) from its Effective Date until the end of the last Subscription Period for the last outstanding Subscription Service ordered hereunder.

9.3 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.

9.4 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.

9.5 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 Service(s) 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 Services upon prior written notice if such period extends for fifteen (15) days or more.

9.6 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 9.3, 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 1.4, 5, 6, 7.4, 8, 9.6, 9.7, 10 and 11 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 9.3, 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 Service(s) 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 9.3, 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 9.6, 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 Service(s) under such Sales Order (if multiple Subscription Service(s) were ordered thereunder) or any other outstanding Sales Orders.

9.7 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, provided Client gives Jibe sixty (60) days’ advance written notice of the expiration of the Subscription Period of a Sales Order (or thirty (30) days’ advance written notice of Client’s intention to terminate a Sales Order for cause pursuant to the Agreement, as the case may be), Jibe will within thirty (30) days after expiration or termination, return to Client the Client Data as of the expiration or termination date, and/or thereafter destroy such data.

10. LIMITATIONS OF LIABILITY

10.1 EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, AND USE OF THE SUBSCRIPTION SERVICE(S) IN VIOLATION OF SECTION 1.4, 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.

10.2 EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, AND USE OF THE SUBSCRIPTION SERVICE(S) IN VIOLATION OF SECTION 1.4, 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.

10.3 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.

11. MISCELLANEOUS

11.1 Modification; Interpretation.  Any terms used but not defined herein shall have the meanings ascribed to them in the Sales Order.  All modifications or amendments to any term of the Agreement must be in writing and signed by both parties.  There are not third-party beneficiaries of the Agreement.  If any provision of the Agreement is held invalid or unenforceable, it will be modified so that it is valid and enforceable to the maximum extent permitted by law and the remaining provisions of the Agreement will remain in full force and effect.

11.2 WaiverNo delay or failure by a party to exercise any right or remedy under the Agreement will constitute a waiver of such right or remedy.  All waivers must be in a writing signed by the waiving party and a waiver of any breach or provision will not be construed as a waiver of any future breach or any other provision.

11.3 Applicable LawThe 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.

11.4 Independent ContractorJibe and Client are independent contractors, and nothing in the Agreement creates any partnership, joint venture or agency relationship.  Neither party will have any right to create any obligation, liability or responsibility on behalf of or in the name of the other party.

11.5 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 Service(s) 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.

11.6 Notices.  All notices and other communications required under the Agreement will be made in writing to the parties at their addresses set forth in this Agreement.  Notice will be deemed given: (i) when delivered in person; (ii) on the delivery date reflected by the overnight courier; or (iii) five (5) business days after being sent by registered or certified mail (postage prepaid, return receipt requested).  Either party may change its contact information by providing the other with notice of the change in accordance with this Section.  Notwithstanding the foregoing, routine operational and administrative communications between the parties (e.g., requests by Jibe for information needed to provide services), may be made by e-mail or phone.

11.7 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.

11.8 Counterparts; Order of Precedence.  The Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one instrument.  Any different or additional terms in any Client purchase order, confirmation or other similar document is hereby rejected by Jibe as null and void and will have no effect.  In the event any term of the Sales Order conflicts with anything contained in the GT&Cs, the Sales Order will control for purposes of that Sales Order only. THE PARTIES EXPRESSLY CONSENT AND AGREE THAT THIS AGREEMENT MAY BE ELECTRONICALLY SIGNED AND THE ELECTRONIC SIGNATURES APPEARING ON THIS AGREEMENT WILL BE TREATED, FOR ALL PURPOSES THE SAME AS WRITTEN SIGNATURES. 

 Exhibit A

Support Schedule to the JIBE Global Terms and Conditions

Jibe Service Level Agreement (“SLA”)

1. SUPPORT SERVICES:

a. Telephone Support. Jibe maintains telephone support 24 hours a day, 7 days a week, 365 days per year. After Business Hours and on U.S. holidays, support is provided via pager for Priority P-1 issues.

b. E-Mail Support. Jibe provides e-mail support in English through the Jibe Technical Support email. Jibe also accepts Client feedback and comments through the email address.

c. Support Process. Jibe makes Support Services available to Client according to the following process:

i. Client will assign one (1) contact per Subscription Service, per installation, to report issues with the Subscription Service. All issues will be funneled through this contact.

ii. The contacts should verify an issue is valid before reporting it to Jibe Technical Support. Issues must be reported with a detailed problem description, a method for repeatedly reproducing the problem, and reasonable access to the Client-appointed contact. Any delay in providing the foregoing will extend the response times set forth in this SLA.

iii. Jibe Technical Support will open a support ticket, and provide an issue number to Client.

iv. Jibe Technical Support will communicate status updates (Acknowledgements, Workarounds, and Resolutions) to Client via email or telephone.

2. SEVERITY AND RESPONSE TIME: Jibe’s responses to all issues reported to Jibe Technical Support by Client are provided based on issue priority. Response times are measured from the time Client has spoken with Jibe Technical Support, left a voice message on Technical Support line, or sent an e-mail to Technical Support.

a. Initial Priority Level: The following table indicates the target resolution time by priority. These are the goals that Jibe’s Technical Support strives to achieve. Although there are various circumstances that can prevent Jibe from obtaining these goals (particularly, issues with Client’s use of the Services, or issues related to a third party service), Jibe will strive to meet these goals whenever possible. These targets are subject to change based on revised Jibe needs and historical performance.

b. Upgrade/Downgrade of Priority Level: If conditions change, and the issue no longer has the correct priority level assigned to it based on priority levels defined in the table below, then the priority level will be upgraded or downgraded to the appropriate level.

SaaS Subscription Services

 

Severity/Priority

Level

Definition Initial Response Time Goal Resolution
P-1 Critical/High Error or issue in a production down situation which cannot be reasonably circumvented and which so substantially impairs the performance of the Services or any components of the Services, which are critical to the Client’s business, as to effectively render them unusable Within 2 hours via return phone call Jibe will work to resolve an issue with Services within 24 hours or where further resolution time is required continue to provide Workaround until final resolution
P-2 Medium Minor functionality broken where a known Workaround exists; marginal performance which slightly impedes productivity Within 4 Business Hours As appropriate (may be included in the next software release rather than as a patch, depending on the issue)
P-3 Low Cosmetic issues, application inconsistencies where normal business functions are unaffected Within 8 Business Hours Next scheduled patch release or acceptable Workaround

Job Distribution

 

Severity/Priority

Level

Definition/ Examples Initial Response Time Goal Resolution
P-1 Critical/High
  • Users unable to access the system
  • Feed Processing is down
  • Posting is not working
  • ATS synchronization is not working
  • Outbound Feeds (Job Distribution) are not working

FOR MORE DETAILED EXAMPLES PLEASE SEE ATTACHED SCHEDULE 1

Within 2 hours via return phone call Jibe will work to resolve an issue with Services within 24 hours or where further resolution time is required (e.g., issue with 3rd party Job Board) continue to provide Workaround until final resolution
P-2 Medium Minor functionality broken where a known Workaround exists; marginal performance which slightly impedes productivity Within 4 Business Hours As appropriate (may be included in the next software release rather than as a patch, depending on the issue)
P-3 Low Cosmetic issues, application inconsistencies where normal business functions are unaffected Within 8 Business Hours Next scheduled patch release or acceptable Workaround

c.Definitions: The following defines categories and terms used above:

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.

Initial Response – Initial response goals are based on priority as set forth in the table above. Jibe will use commercially reasonable efforts to respond according to the Initial Response specifications set forth in the table with respect to each Priority level.

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 use commercially reasonable efforts to 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 Technical Support 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.

d. Exclusions from Listed SLA Response Time Goals: When an issue is logged with Jibe’s Technical Support and further information is requested from Client to resolve the issue, Jibe Technical Support requires a timely Client response. Failure to provide a timely response, to include sufficient detail to identify and replicate the issue will delay Jibe’s Response. The targeted goals stated in the table above are suspended during the time the Jibe Technical Support is waiting for a response from Client. Once a response is received, the time requirements will restart.

It should also be noted that Jibe’s ability to provide a satisfactory Workaround may be impacted when the root cause of the issue is a third party service/ system issue. Regardless of root cause, Jibe will use commercially reasonable efforts to work with the Client to implement a satisfactory Workaround or resolution in a timely manner.

3. CHANGE REQUESTS: Change requests may be made to further enhance the functionality or “look and feel” of the Services. Requests for branding or cosmetic changes, enhancements or code alterations to the Services are examples of 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.

4. WORK PLAN FOR OPEN CASES: All cases are initially responded to and owned by a Technical Support team member. Jibe will continue to work on the case until it is resolved to Client’s satisfaction. Technical Support will communicate updates to Client as they become available.

5. 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: If Jibe Technical Support is unable to provide a viable Workaround or Permanent Fix during the first call, then Jibe Technical Support will investigate and resolve the open support case. 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.

6. AVAILABILITY: The Jibe Systems and Services will, subject to the provisions of this SLA, be available 99% of the time following the Services Delivery Date.

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. Jibe will also support Firefox 10, Chrome and Safari 5. Supported browsers must represent one percent (1%) or more of the browsers used by authorized users across all Jibe Clients.

8. MOBILE DEVICES SUPPORTED: To the extent that a Service is provided by Jibe for mobile devices, 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 Customer’s servers in the immediately preceding calendar quarter.

10. CLIENT SYSTEMS’ UPGRADES: When applicable to the Jibe Services licensed by Client, incremental updates (i.e., version 1.1 to version 1.2) to Client’s Applicant Tracking System (“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 six (6) weeks advanced notice and access to a staging environment to ensure compatibility. Client’s failure to provide Jibe with advanced notice as set forth in this Section 7 may result in a billable Change Order as outlined in Section 3. A migration by Client from one ATS to another, or the addition of ATS(s) shall be a Change Request.

11. MAINTENANCE: Jibe retains the right to have 2 hours of downtime every week (generally during Jibe’s standard maintenance window Saturdays between 6 am – 8 am EST) 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 outside of the Jibe standard maintenance window.

12. 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: i) any items, products, software, hardware or technology of Client or a third party, ii) modification or misuse of the Services other than by Jibe, or iii) 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.

13. ESCALATION PROCEDURES: If Client believes that it has not received quality or timely assistance in response to an issue that it has communicated to Jibe Technical Support in accordance with the Support Process outlined in this SLA, or that Jibe has not met the agreed upon service levels, the Client-appointed contact may request to escalate the issue by contacting the Jibe Customer Success Manager. The Client’s Customer Success Manager will work with the Client to develop an action plan in order to: i) develop a Workaround and/or Permanent Fix to the given issue and ii) assess the resources allocated to the Client to ensure that the defined response times are being met and the responses resolve the issues.

Schedule 1

Examples of P-1 Critical/ High Priority Job Distribution Issues

  • Users unable to access the system:
    • Recruiters can’t log in to jibepost.com to post jobs.
    • Users can’t log in to the SFTP server to upload feeds.
  • Feed processing is down:
    • Feeds uploaded to the SFTP server are not processed within four (4) hours from schedule.
    • Feeds cannot be processed at all (when run by our client services team).
  • Posting is not working:
    • Posts are failing to go up, in significant quantities (e.g., all CareerBuilder posts, 1,000 Monster posts).
    • Posts or listings are missing important data (e.g., job title is missing, description is missing, apply URL is missing).
    • Apply URLs are not working (e.g., all redirecting to the wrong place, or not redirecting at all).
  • ATS synchronization is not working:
    • We do not pick up deletions to jobs, and therefore leave closed postings up indefinitely.
    • Jibe picks up a significant number of jobs as deleted, erroneously.
  • Outbound feeds (job distribution) are not working:
    • A feed (e.g., feeds.jibepost.com/feeds/company.xml) is inaccessible.
    • A feed (e.g., feeds.jibepost.com/feeds/company.xml) is erroneously empty
  • Users unable to access the system:
    • Recruiters can’t log in to jibepost.com to post jobs.
    • Users can’t log in to the SFTP server to upload feeds.
  • Feed processing is down:
    • Feeds uploaded to the SFTP server are not processed within four (4) hours from schedule.
    • Feeds cannot be processed at all (when run by our client services team).
  • Posting is not working:
    • Posts are failing to go up, in significant quantities (e.g., all CareerBuilder posts, 1,000 Monster posts).
    • Posts or listings are missing important data (e.g., job title is missing, description is missing, apply URL is missing).
    • Apply URLs are not working (e.g., all redirecting to the wrong place, or not redirecting at all).
  • ATS synchronization is not working:
    • We do not pick up deletions to jobs, and therefore leave closed postings up indefinitely.
    • Jibe picks up a significant number of jobs as deleted, erroneously.
  • Outbound feeds (job distribution) are not working:
    • A feed (e.g., feeds.jibepost.com/feeds/company.xml) is inaccessible.
    • A feed (e.g., feeds.jibepost.com/feeds/company.xml) is erroneously empty