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EMPLOYER TERMS OF USE

1. General.
(a) These Employer Terms of Use apply to and govern (i) each Sales Order (other than Sales Orders described in the last sentence of this Section 1(a)) entered into between Customer and Snagajob (“Sales Orders”) and the services described in such Sales Orders, as fully as if the provisions of these Employer Terms of Use were set forth in their entirety in each such Sales Order, and (ii) each other order of services by Customer on or through the Snagajob website without a Sales Order (“Website Orders”) and the services covered by such Website Orders. The services described in Sales Orders and covered by Website Orders are referred to herein collectively as the “Services.” These Employer Terms of Use do not apply to or govern any Sales Orders or Services which are governed by a Master Services Agreement, or any similar written agreement, signed by Customer and Snagajob.

(b) The applicable Sales Order, any related Statement(s) of Work prepared by Snagajob and delivered to Customer in connection with such Sales Order and these Employer Terms of Use constitute the entire contractual agreement of Customer and Snagajob relating to the Services described in such Sales Order. The specific terms agreed to by Customer and Snagajob in connection with ordering Services through a Website Order (the “Website Order Terms”) and these Employer Terms of Use constitute the entire contractual agreement of Customer and Snagajob relating to the Services covered by such Website Order. Unless specifically agreed to in writing by Customer and Snagajob, no other terms or conditions, including, without limitation, no preprinted terms on any Customer purchase order or similar document, will be included in the agreement of the parties or otherwise binding on or enforceable against the parties.

2. Services.
(a) Customer and Snagajob agree that Snagajob will provide to Customer the Services described in each Sales Order or covered by each Website Order, as applicable, for the service period(s) specified in, or to the extent otherwise provided in, such Sales Order or the applicable Website Order Terms (the “Service Periods”). The Services may be provided, as applicable, through the use of the Snagajob website (the “Snagajob Site”) and may involve Snagajob using or making available to Customer certain software and other tools owned by or licensed to Snagajob (the “Software”).

(b) In connection with purchasing the Services, Customer will be responsible for obtaining and maintaining at its expense all computer hardware, software and communications equipment and connections required for Snagajob customers to access the Snagajob Site and to access and use the applicable Services.

(c) Snagajob reserves the right to make modifications to the Services, the Snagajob Site and/or the Software during the term of any applicable Sales Order or Website Order; provided that such modifications do not have a material adverse effect on the functionality of the Services.

3. License; Limitations.
(a) During the applicable Service Periods, Snagajob grants to Customer a limited, nonexclusive, nontransferable and nonsublicenseable license (i) to access and use the Snagajob Site and the Software, and (ii) to use any documentation provided to Customer by Snagajob in connection with the Services, in each case to the extent necessary to access and use the Services for the periods and quantities purchased under the applicable Sales Order or Website Order.

(b) This license is limited to Customer and it may not be resold, sublicensed, leased or otherwise made available to any third party. This license is also limited to the number of locations or quantity of units purchased by Customer under the applicable Sales Order or Website Order.

(c) Customer agrees that it will not (i) modify, adapt, reverse engineer, decompile, disassemble, reverse assemble or otherwise attempt to discover the source code or underlying algorithms or know-how of any of the Services, the Snagajob Site or the Software, (ii) create any derivative works from any of the Services, the Snagajob Site or the Software, (iii) access or use the Services, the Snagajob Site or the Software for any illegal, unlawful, threatening, abusive, harassing or obscene purpose or for any other purpose prohibited by Snagajob’s policies in place from time to time, (iv) post or otherwise provide any false, misleading or dishonest information or other content on, through or in connection with the Services or the Snagajob Site, or (v) attempt to do any of the foregoing.

4. Payment for Services.
(a) Customer agrees to pay for all of the Services described in each Sales Order and covered by each Website Order at the prices and rates specified in such Sales Order or by the applicable Website Order Terms, as applicable, and without offset or deduction. Unless another payment method or other payment terms are agreed to by Customer and Snagajob, all such payments will be due and must be paid within thirty (30) days after receipt by Customer of the applicable Snagajob invoice. If any such payment is not paid when due hereunder, Customer agrees to pay Snagajob interest on such overdue payment at one percent (1%) per month, or the highest rate permitted by applicable law, whichever is lower, and to reimburse Snagajob on demand for all costs of collection incurred by Snagajob, including, without limitation, reasonable attorneys’ fees and costs.

(b) Customer will be responsible for and agrees to pay all sales, use, value-added, excise and other taxes, if any, relating to the Sales Order(s), the Website Order(s) or the Services, other than taxes based on Snagajob’s net income.

5. Term; Termination.
(a) For any Services for which a specific Service Period is described on the applicable Sales Order or provided by the applicable Website Order Terms (a “Subscription Service”), the initial term for the Subscription Service will be the Service Period specified on the applicable Sales Order or by the applicable Website Order Terms. For any Services for which a specified quantity of units is described on the applicable Sales Order or provided by the applicable Website Order Terms (a “Specified Quantity Service”), the initial term for the Specified Quantity Service will begin on the date the applicable Sales Order is signed by the parties or the date Customer makes the applicable Website Order, as applicable, and will end when the specified quantity of the Services has been used or provided.

(b) For a Subscription Service described in Sales Orders or covered by Website Orders which provide for autorenewal, upon the expiration of the initial term or any renewal term for such Subscription Service, the term for such Subscription Service will automatically renew, at Snagajob’s then current pricing and terms (and Snagajob will have the right to continue charging Customer’s credit card, if applicable), for an additional one (1) year (or other agreed) renewal term unless Customer notifies Snagajob in writing of its decision not to renew at least thirty (30) days prior to the expiration of the applicable initial or renewal term.

(c) Customer may terminate a Sales Order or Website Order with respect to one or more Services prior to the applicable scheduled termination date(s) if Snagajob ceases its business activities, makes a general assignment for the benefit of creditors, or becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding.

(d) Snagajob may terminate a Sales Order or Website Order with respect to one or more Services prior to the applicable scheduled termination date(s) if (i) Customer violates or fails to perform or comply with any of its obligations under Section 3(c) or Section 4(a) of these Employer Terms of Use and such violation or failure continues unremedied for five (5) days, (ii) Customer violates or fails to perform or comply with any of its other material obligations under the Sales Order or Website Order, as applicable, or these Employer Terms of Use and such violation or failure continues unremedied for thirty (30) days after Snagajob gives written notice of such violation or failure to Customer, or (iii) Customer ceases its business activities, makes a general assignment for the benefit of creditors or becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding.

(e) Upon the expiration or earlier termination of a Sales Order or Website Order with respect to one or more Services, (i) the license granted to Customer in Section 3(a) above in connection with the applicable Service(s) will automatically and immediately terminate, and Customer will no longer have any right to use the Snagajob Site, the Software or any Snagajob materials in connection with the applicable Service(s), (ii) Snagajob will no longer have any obligation to provide the applicable Service(s), and (iii) Customer will pay to Snagajob all fees and other amounts due with respect to Services provided on or before the expiration or termination date, and, unless the Sales Order or Website Order is terminated under Section 5(c) above, Customer will pay to Snagajob all fees and other amounts payable for Services under the applicable Sales Order or Website Order for the remainder of the current initial or renewal term.

(f) In addition, unless a Sales Order or Website Order has been terminated based on Customer’s failure to pay fees or other amounts due to Snagajob under the Sales Order or Website Order, Snagajob will, upon Customer’s written request within thirty (30) days following termination, provide to Customer an electronic copy of all Customer Materials (as defined in Section 8(a) below) then available in Snagajob’s system, in a standard data format that is reasonably accessible by Customer. After thirty (30) days following termination, Snagajob will have no obligation to maintain or provide any Customer Materials and may thereafter, unless legally prohibited, delete all Customer Materials in its system or otherwise in its possession or under its control.

(g) The terms of these Employer Terms of Use which by their nature continue in effect after the expiration or earlier termination of the Sales Orders and Website Orders, including, without limitation, Sections 4, 5(e), 5(f), 7, 8, 9, 10 and 11, will survive the expiration or earlier termination of any Sales Order or Website Order.

6. Representations and Warranties; Disclaimers.
(a) Each of Customer and Snagajob represents and warrants to the other party that (i) it is a corporation or other entity duly organized and validly existing in good standing under the laws of the state of its incorporation or organization, and it has the corporate or other power to own its property and to carry on its business as now being conducted, (ii) it has full power and authority to enter into the Sales Orders, the Website Orders and these Employer Terms of Use and to perform its obligations hereunder and thereunder, all of which have been duly authorized by all required corporate or other action by it, (iii) no consent or approval of, notice to or filing with any governmental authority or third party is required as a condition to the validity or enforceability of any Sales Order or Website Order or these Employer Terms of Use as to it, (iv) each Sales Order, each Website Order and these Employer Terms of Use constitutes the valid and legally binding agreement of it enforceable in accordance with its terms, (v) there are no proceedings pending or threatened before any court or governmental or administrative agency that would reasonably be expected to affect the validity or enforceability of any Sales Order, any Website Order or these Employer Terms of Use as to it, and (vi) it is not a party to or otherwise bound by any contract or agreement which in any manner would prohibit it from entering into any Sales Order, any Website Order or these Employer Terms of Use or performing its obligations hereunder or thereunder.

(b) Snagajob further represents and warrants to Customer that (i) it will perform the Services substantially in accordance with any applicable written specifications published by Snagajob and substantially in accordance with any product or services descriptions set forth in any applicable Sales Order or in any related Statement(s) of Work, (ii) it will use commercially reasonable efforts to provide support services in accordance with any service level agreements set forth in any applicable Sales Order or in any related Statement(s) of Work, and (iii) the tests provided as part of any assessment Services have been validated for construct and have criterion-related validity, and the assessment Software, as tested in the aggregate on assessments collected by Snagajob’s licensor and all its and Snagajob’s customers, does not show any evidence of adverse or disparate impact on any legally protected class of people.

(c) Customer further represents and warrants to Snagajob that all of the following comply and will comply with all federal, state and local employment, data protection, privacy and other applicable laws and regulations: (i) the questions and other materials included or used in connection with the job listings posted or submitted by or on behalf of Customer through the Services, (ii) the questions and other materials and technology used by Customer in screening or making hiring decisions regarding potential employees, (iii) Customer’s other hiring practices, including, without limitation, the use of any results of any procurement, screening or assessment Services provided hereunder, and (iv) Customer’s hiring decisions. Without limiting the generality of the foregoing, Customer represents and warrants to Snagajob that it will not use the results of any procurement, screening or assessment Services provided hereunder to discriminate against candidates or current employees in violation of any federal, state or local employment or other applicable laws or regulations.

(d) THE REPRESENTATIONS AND WARRANTIES MADE BY SNAGAJOB IN THIS SECTION 6 OR ELSEWHERE IN THESE EMPLOYER TERMS OF USE ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, NEITHER SNAGAJOB NOR ANY OF ITS LICENSORS REPRESENTS OR WARRANTS THAT (i) ANY OF THE SERVICES, THE SNAGAJOB SITE OR THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, (ii) ANY SPECIFIC RESULTS WILL BE OBTAINED USING THE SERVICES, THE SNAGAJOB SITE OR THE SOFTWARE, OR (iii) ANY ERRORS IN THE SERVICES, THE SNAGAJOB SITE OR THE SOFTWARE WILL BE CORRECTED. IN ADDITION, SNAGAJOB AND ITS LICENSORS EXPRESSLY DISCLAIM LIABILITY FOR CUSTOMER’S IMPROPER OR DISCRIMINATORY USE OF THE SOFTWARE OR SERVICES, INCLUDING CLAIMS AGAINST CUSTOMER MADE BY ANY COURT OR REGULATORY AGENCY BASED IN WHOLE OR IN PART ON FINDINGS OF DISPARATE OR ADVERSE IMPACT TREATMENT REGARDING CANDIDATES OR EMPLOYEES. SNAGAJOB AND ITS LICENSORS MAKE NO WARRANTY THAT THE SOFTWARE OR SERVICES WILL NOT CAUSE AN ADVERSE OR DISPARATE IMPACT ON A LEGALLY PROTECTED CLASS OF PEOPLE IF SUCH SOFTWARE OR SERVICES ARE USED IMPROPERLY OR ARE USED WITHOUT A STATISTICALLY ADEQUATE OR REPRESENTATIVE CANDIDATE POOL. FURTHERMORE, SNAGAJOB AND ITS LICENSORS EXPRESSLY DISCLAIM LIABILITY FOR THE SOFTWARE’S AND/OR THE SERVICES’ COMPLIANCE WITH, OR CUSTOMER’S ABILITY TO USE PROCUREMENT, SCREENING OR ASSESSMENT SERVICES TO EVALUATE CANDIDATES OR EMPLOYEES UNDER, THE EMPLOYMENT LAWS OF ANY JURISDICTION OTHER THAN THE FEDERAL AND STATE LAWS OF THE UNITED STATES.

(e) WITHOUT LIMITING THE GENERALITY OF SECTION 6(d) ABOVE, THE PARTIES SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE JOB SEEKER RESUMES AND OTHER JOB SEEKER INFORMATION PROVIDED ON OR THROUGH THE SERVICES AND/OR THE SNAGAJOB SITE ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS AND THAT SNAGAJOB MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY SUCH RESUMES OR OTHER INFORMATION OR THEIR ACCURACY OR COMPLETENESS.

7. Confidentiality.
(a) Each party will take commercially reasonable steps to protect the confidentiality of the Confidential Information and Trade Secrets (as such terms are defined below) of the other party disclosed to or otherwise received by such party in connection with the Sales Order(s), the Website Order(s), the Services or these Employer Terms of Use. Neither Customer nor Snagajob will copy, duplicate, use, disclose or transfer any such Confidential Information or Trade Secrets of the other party except as required to access and use or provide the Services, as applicable.

(b) For purposes of these Employer Terms of Use, (i) “Confidential Information” means all proprietary or confidential information of a party and/or its affiliates, other than Trade Secrets, which is of value to the party and/or its affiliates and which is not generally known by or available to the party’s competitors, whether or not such information is specifically designated by the party as being confidential, and (ii) “Trade Secrets” mean all trade secrets of a party as defined under applicable law. The pricing and other specific terms relating to the Services included in the Sales Orders or the Website Order Terms constitute the Confidential Information of Snagajob.

(c) The confidentiality provisions contained in this Section 7 will apply (i) with respect to Confidential Information, at all times while any Services are being provided hereunder and for a period of two (2) years after all such Services cease being provided hereunder, and (ii) with respect to Trade Secrets, at all times that the applicable Trade Secret constitutes a “trade secret” under applicable law.

8. Ownership of Property.
(a) As between Customer and Snagajob, any Customer job postings and information and related materials provided by Customer for placement, storage and/or use in or in connection with the Services or on or in connection with the Snagajob Site (“Customer Materials”) are and will remain the property of Customer. Customer grants Snagajob an irrevocable, royalty-free, nonexclusive license to use, copy, display and distribute Customer Materials to the extent necessary to provide the Services and/or to administer or maintain the Snagajob Site.

(b) Except for the limited license granted in Section 3(a) above, Customer has and will have no right, title or interest in or to any of the Services, the Snagajob Site or the Software, and Snagajob or its applicable licensor will retain ownership of and full and exclusive rights in and to the Services, the Snagajob Site and the Software and all enhancements and modifications thereto and thereof, including, without limitation, ownership of and full and exclusive rights to all related copyrights and other intellectual property rights and full and exclusive rights to sell, license, market, assign and modify the Services, the Snagajob Site and the Software.

9. Intellectual Property Indemnity.
(a) Provided that Customer complies in each instance with Section 9(b) below, Snagajob agrees to indemnify Customer from and against any damages, costs and expenses (including reasonable attorneys’ fees) incurred by Customer as a result of a final judgment in favor of a third-party in connection with a claim that the Services, the Snagajob Site or the Software infringe or otherwise violate any U.S registered patent, copyright, trademark or service mark of that third party.

(b) If any third-party claim is made against Customer for which Snagajob may be required to provide indemnification under Section 9(a) above, (i) Customer will promptly notify Snagajob in writing of such claim, in no event later than ten (10) days prior to the date on which a response to the claim is required, (ii) Snagajob will have full authority, at its option, to defend such claim and Customer will provide reasonable assistance in such defense, and (iii) Snagajob will have full authority, at its option, to control the defense of such claim at its expense and all negotiations for the compromise and settlement of such claim.

(c) If Snagajob determines that any third-party claim that the Services, the Snagajob Site or the Software infringes or otherwise violates any U.S. registered patent, copyright, trademark or service mark of a third party is valid, Snagajob will have the right, at its expense (i) to obtain for Customer the right to continue using the Services, the Snagajob Site or the Software, as applicable, under these Employer Terms of Use, (ii) to modify the Services, the Snagajob Site or the Software, as applicable, provided hereunder so that they are no longer infringing with no materially adverse effect on their functionality, or (iii) to terminate the Sales Order(s) and/or Website Orders with respect to the infringing Services, Snagajob Site or Software and refund to Customer any related prepaid fees for the remainder of the current initial or renewal term.

(d) The agreements contained in this Section 9 constitute the exclusive liability and responsibility of Snagajob for, and the exclusive remedy of Customer regarding, any claim that the Services, the Snagajob Site or the Software infringes or otherwise violates any patent, copyright, trademark or servicemark of a third party.

10. Customer Indemnification.
Customer agrees to indemnify, defend and hold Snagajob and its licensors harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) incurred by Snagajob or a licensor as a result of or in connection with any third-party claim that (i) any of the Customer Materials infringes or otherwise violates any patent, copyright, trademark, service mark, trade secret or other intellectual property right of a third party, and/or (ii) Customer’s employee procurement, screening, testing, assessment, hiring or firing policies or practices, or improper use of the Software or Services, violates any applicable employment, data protection, privacy or other law or regulation.

11. Liability Limitations.
EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 9 AND 10 ABOVE, AND WITHOUT IN ANY WAY LIMITING CUSTOMER’S OBLIGATION TO PAY FOR THE SERVICES AS PROVIDED IN THE APPLICABLE SALES ORDERS OR WEBSITE ORDER TERMS, (i) NEITHER PARTY WILL BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO COLLECT ANY SUCH DAMAGES, AND (ii) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES HEREUNDER WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO SNAGAJOB UNDER THE APPLICABLE SALES ORDERS OR WEBSITE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT CAUSING THE LIABILITY.

12. Miscellaneous.
(a) Each party and its employees and representatives are and will be independent contractors with respect to the other party, and neither party by virtue of any Sales Order, any Website Order or these Employer Terms of Use will have any right, power or authority to act or create any obligation on behalf of the other party.

(b) The Sales Orders, the Website Orders and these Employer Terms of Use will be governed by and construed in accordance with the laws of the Commonwealth of Virginia. The parties agree that any dispute, claim or controversy arising out of or in connection with these Employer Terms of Use, any Sales Order, any Website Order and/or the Services will be brought, tried and litigated exclusively in the Circuit Court of the County of Henrico, Virginia or in the United States District Court for the Eastern District of Virginia (Richmond Division). Each party hereby voluntarily submits to personal jurisdiction in each such court, and each party expressly waives any right to object to personal jurisdiction or improper venue, or to assert the doctrine of forum non conveniens or any similar doctrine, with respect to either such court in connection with any dispute, claim or controversy arising out of or in connection with these Employer Terms of Use, any Sales Order, any Website Order and/or the Services.

(c) All communications, notices and disclosures required or permitted by these Employer Terms of Use will be in writing and will be deemed to have been given on the date when delivered personally, by messenger, by overnight delivery service or otherwise, (i) to Customer, at the address described on the applicable Sales Order or provided in connection with the applicable Website Order, and (ii) to Snagajob, at Snagajob.com, Inc., 4851 Lake Brook Drive, Glen Allen, Virginia 23060, Attention: Contract Administrator.

(d) Neither party may assign any Sales Order or Website Order, in whole or in part, without the prior written consent of the other party; provided that Snagajob may assign any Sales Order or Website Order to any purchaser of all or substantially all of Snagajob’s assets. Any attempted assignment by a party not in accordance herewith will be null and void and of no force or effect.

(e) These Employer Terms of Use will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

(f) The section headings contained herein are for the convenience of the parties only and will not be interpreted to limit or affect in any way the meaning of the language contained in these Employer Terms of Use.

(g) The Sales Orders and any other documents included as part of or relating to the Sales Orders or Website Orders may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. The Sales Orders and any other documents included as part of or relating to the Sales Orders or Website Orders may be executed by exchange of manually signed originals or facsimile copies or by exchange of electronic signatures through any electronic signing service or process approved by Snagajob.

(h) Except as otherwise provided herein, (i) these Employer Terms of Use, together with the applicable Sales Order and any related Statement(s) of Work prepared by Snagajob and delivered to Customer in connection with such Sales Order, contains the entire agreement and understanding between Customer and Snagajob concerning the Services described in such Sales Order, and (ii) these Employer Terms of Use, together with the applicable Website Order and Website Order Terms, contains the entire agreement and understanding between Customer and Snagajob concerning the Services ordered through such Website Order. No waiver by either party hereto of any term or provision of these Employer Terms of Use or of any default hereunder will affect such party’s rights thereafter to enforce such term or provision or to exercise any right or remedy in the event of any other default, whether or not similar.