(a) Customer and Snag agree that Snag will provide or make available to Customer the services or other offerings 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 Snag website (the “Snag Site”) and/or the “Snag for Employers” mobile application (the “App”) and may involve Snag using or making available to Customer certain software and other tools owned by or licensed to Snag (the “Software”).
(c) 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, including mobile devices and wireless data services, required for Customers to access the Snag Site and/or the App and to access and use the applicable Services. By using the App, Customer consents to receive, at its cost, electronic communications from Snag.
(d) Snag reserves the right to make modifications to the Services, the Snag Site, the App 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.
(a) During the applicable Service Periods, Snag grants to Customer a limited, nonexclusive, nontransferable and nonsublicenseable license (i) to access and use the Snag Site, the App and the Software, and (ii) to use any documentation provided to Customer by Snag 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 and specified on 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 Snag Site or the Software, (ii) create any derivative works from any of the Services, the Snag Site, the App or the Software, (iii) access or use the Services, the Snag Site, the App or the Software for any illegal or 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, the Snagajob Site or the App, or (v) attempt to do any of the foregoing.
(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, plus taxes, 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 in a Sales Order, all such payments will be due and must be paid within thirty (30) days of the invoice date. If any such payment is not paid when due hereunder, Snag may suspend the delivery of Services to Customer until payment is made, without extending the term of the Services, and Customer agrees to pay Snag 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 Snag on demand for all costs of collection incurred by Snag, 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 Snag’s net income.
(c) Snag will have the right to modify the prices and rates it charges for the Services in connection with the auto-renewing of Sales Orders or Website Orders by providing not less than ninety (90) days prior written notice to Customer. Such modified prices and rates will become effective at the beginning of the next renewal term for the applicable Services.
(a) 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 Snag 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.
(c) 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 Snag Site, the App, the Software or any Snag materials in connection with the applicable Service(s); provided that, access to the E-Verify Services shall be provided until notice of the cancellation or termination of the E-Verify account has been received from the U.S. government, (ii) Snag will no longer have any obligation to provide the applicable Service(s), and (iii) Customer will pay to Snag 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(a) above, Customer will pay to Snag 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.
(d) Unless a Sales Order or Website Order has been terminated based on Customer’s failure to pay fees or other amounts due to Snag under the Sales Order or Website Order, Snag will, upon Customer’s written request within thirty (30) days following termination, provide to Customer an electronic copy of Customer Materials (as defined in Section 8(a) below) then available in Snag’s system, in a standard data format that is reasonably accessible by Customer. If Customer requests Snag to provide an electronic copy of Customer Materials, Customer agrees to pay Snag’s then standard rates for such service. After thirty (30) days following termination or expiration, Snag will have no obligation to maintain or provide any Customer Materials and may thereafter, unless legally prohibited, delete all Customer Materials and/or Basic Hiring Manager employee data in its system or otherwise in its possession or under its control.
(b) Snag further represents and warrants to Customer that (i) it will perform the Services substantially in accordance with any applicable written specifications published by Snag and substantially in accordance with any product or services descriptions set forth in the 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 the 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 Snag’s licensor and all its and Snag’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 Snag 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 application 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 application 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 application questions, 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 Snag 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.
(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, THE SNAG SITE AND/OR THE APP ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS AND THAT SNAG MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY SUCH RESUMES OR OTHER INFORMATION OR THEIR ACCURACY OR COMPLETENESS.
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREUNDER, CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT SNAG IS NOT THE PROVIDER OF THE THIRD-PARTY OFFERINGS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH THIRD-PARTY OFFERINGS. CUSTOMER REPRESENTS THAT IT IS NOT RELYING ON ANY STATEMENTS OR SPECIFICATIONS REPRESENTING THIRD-PARTY OFFERINGS THAT MAY BE PROVIDED BY SNAG. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT SNAG HAS NO OBLIGATION OR LIABILITY ARISING FROM THE PROVISION, OPERATION AND/OR PERFORMANCE OF THIRD-PARTY OFFERINGS. ANY THIRD-PARTY OFFERINGS MADE AVAILABLE UNDER THIS AGREEMENT ARE MADE AVAILABLE ON AN “AS IS” BASIS. SNAG HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES WITH RESPECT TO SUCH THIRD-PARTY OFFERINGS (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION: (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THE PURPOSE IS KNOWN TO SNAG), NONINFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT, OR ACCURACY; AND (ii) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY.
(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.
(a) As between Customer and Snag, 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 Snag Site and/or the App (“Customer Materials”) are and will remain the property of Customer. Customer grants Snag 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, maintain or improve the Snag Site and/or the App, and to use the Customer Materials, after anonymizing all Customer and personally identifiable information, for research and development purposes.
(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 Snag Site, the App or the Software, and Snag or its applicable licensor will retain ownership of and full and exclusive rights in and to the Services, the Snag Site, the App 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 Snag Site, the App and the Software.
(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, (excluding any Third-Party Offerings), the Snag 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 Snag may be required to provide indemnification under Section 9(a) above, (i) Customer will promptly notify Snag 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) Snag 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.
(d) The agreements contained in this Section 9 constitute the exclusive liability and responsibility of Snag for, and the exclusive remedy of Customer regarding, any claim that the Services, the Snag Site or the Software infringes or otherwise violates any patent, copyright, trademark or service mark of a third party.
Customer agrees to indemnify, defend and hold Snag and its licensors harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) incurred by Snag 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 application, including but limited to any questions regarding criminal convictions, or any 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.
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 SNAG UNDER THE APPLICABLE SALES ORDERS OR WEBSITE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT CAUSING THE LIABILITY. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT SNAG SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER, INCLUDING FOR INDIRECT OR DIRECT DAMAGES, WITH RESPECT TO THIRD-PARTY OFFERINGS.
(b) Customer grants to Snag a limited, non-exclusive, nontransferable, royalty free right and license during the Term to use Customer’s tradename and logo (collectively, the “Customer Marks”) on its website or customer list to identify Customer as a client of Snag and in a mutually approved press release to announce that Customer is a client of Snag. Snag will comply with Customer’s trademark usage guidelines in using Customer’s Marks. Snag shall not use Customer Marks in a manner that dilutes, tarnishes or blurs the value of the Customer Marks. Any goodwill accrued as a result of Snag’s use of the Customer Marks inures solely for the benefit of Customer.
(e) During the initial or any renewal term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement, Customer shall not, without the prior written consent of the Snag, either directly or indirectly, solicit or attempt to solicit, divert or hire away any person employed by Snag.
(f) 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 Snag may assign any Sales Order or Website Order to any purchaser of all or substantially all of Snag’s assets. Any attempted assignment by a party not in accordance herewith will be null and void and of no force or effect.
(i) 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 Snag.
(k). Snag hereby objects to and rejects the inclusion in any purchase order, routine business form, supplier registration site or similar form or website used by the Customer of any pre-printed terms or website terms and conditions that have not been separately negotiated and agreed to in writing by the parties and made a part of this Agreement to the extent that such are inconsistent with or in addition to the provisions of this Agreement.