Welcome to www.HireVault.com (“Site”), which along with the HireVaultServices (defined below), the HireVaultsuite of applications, all content and features contained therein, is owned and operated by Now Checking You, LLC. (“HireVault”). The following terms and conditions of service together with all associated Subscription Order Forms (as defined below) (collectively the “Agreement”), constitute an agreement between HireVaul tand Customer, Authorized User, End User and/or you, if applicable, in your individual capacity and in your capacity as an employee, officer, agent, partner, etc… of each organization you represent, including Customer, in connection with any use of this Site and the HireVault Services.
HireVault may revise this Agreement (including any policies or agreements which are incorporated by reference herein) from time to time without notice to Customer, Authorized User, End User and/or you and such revisions shall be effective immediately upon posting to www.HireVault.com. You acknowledge and agree that (i) HireVault may notify you of such revisions by posting them to www.HireVault.com or any sub domain and (ii) your use of the HireVault Services after such revisions have been made (as indicated by the “Last Revised” date at the top of this page) shall constitute your acceptance of this Agreement as last revised. In addition, HireVault may occasionally notify you of upcoming revisions to this Agreement by email. We therefore recommend that you keep your account information including, but not limited to, your email address, current.
1. Definitions. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2 “Ancillary Software” means software applications offered by HireVault from time to time that may or may not be hosted on HireVault’s servers, for the purpose of accessing, interfacing, communicating with and/or providing functionality to the HireVault Services. Ancillary Software may include software loaded on or accessed by or through a Customer’s system or server, and mobile applications, including applications accessed by or through smart phones, mobile devices, cellular devices, tablets, or other similar devices.
1.3 “Authorized User” means an employee, agent, representative, or individual contractor of Customer or such other party who has been designated and authorized by Customer to have administrative access to and use the HireVault Services under their Company Account subject to these Terms.
1.4 “End User” means an employee, contractor, or candidate of Customer or such party who has been granted non-administrative access by Customer to the HireVault Services subject to these Terms.
1.5 “Customer” means the person or entity (i) who has subscribed to the HireVault Services with us, and/or with respect to whom we have created a Company Account and (ii) has specifically authorized Authorized Users and/or End Users to access certain of the HireVault Services under a Company Account, subject to these Terms.
1.6 “Customer Content” means (i) all documents, images, photographs, videos, data, text, information, content and other materials that Customer or its Authorized Users or End Users store, process, or otherwise transmit through their use of the HireVault Services, (ii) any and all meta-data on the foregoing, and (iii) information about Authorized Users and End Users.
1.7 “Customer Installed Programs” means any third party software or, if applicable, Customer’s or any Authorized User’s own proprietary software that Customer or such Authorized User is required to have installed on their own computers in order to access and properly interact with the HireVault Services.
1.8 “Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the HireVault Services or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines, or mechanisms that would cause the HireVault Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
1.9 “Documentation” means any guides and other documentation for the HireVault Services that HireVault provides to Customer either directly or through publication on the Site, through the HireVault Services or other means made available to the Customer.
1.10 “Intellectual Property Right(s)” means, with respect to any thing, material or work (hereinafter, “Work”): (i) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing (ii) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing (iii) all goodwill associated with the foregoing (iv) all renewals, extensions, reversions or restorations of all such rights (v) all works based upon, derived from, or incorporating the Work (vi) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect thereto (vii) all causes of action, either in law or in equity for past, present or future infringement based on the Work (viii) all rights corresponding to each of the foregoing throughout the world and (ix) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
1.11 “Prohibited Content” means content that: (i) is illegal under applicable law (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets (iii) contains indecent or obscene material (iv)contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights (v) promotes unlawful or illegal goods, services, or activities (vi) contains false, misleading, or deceptive statements, depictions, or sales practices (vii) contains Destructive Elements or (viii) is otherwise objectionable to HireVault in its sole discretion.
1.12 “HireVault Service(s)” means HireVault’s human resources information system (“HRIS”) computer software and related software-as-a-service, hosting, maintenance and/or support services made available by HireVault for remote access and use by Customer and its Authorized Users and End Users, including any Documentation and Updates thereto and any equipment or technology used by HireVault in connection with the foregoing.
1.13 “Severe Infraction” means breach or violation by Customer or any Authorized User or End User of their respective obligations not to (nor authorize, permit, or encourage any third party to) do the following: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the HireVault Services or any Ancillary Software (ii) modify, adapt, or translate the HireVault Services or any Ancillary Software (iii) make any copies of the HireVault Services or any Ancillary Software (iv) resell, distribute, or sub license the HireVault Services, the Usage Data or any Ancillary Software, or use any of the foregoing for the benefit of anyone other than Customer or the Authorized Users (v) use the HireVault Services, the Usage Data, the Ancillary Software, or any part of the HireVault system (1) in violation of any applicable law or regulation, for any illegal purpose, or in a way that violates, infringes, or misappropriates HireVault’s or any third party’s Intellectual Property Rights, as determined by HireVault in its sole and absolute discretion, (2) in order to build a competitive (or substitute) product or service, or (3) for any purpose not specifically permitted in this Agreement (vi) introduce, post, or upload to the HireVault Services, or any Ancillary Software any Prohibited Content (vii) attempt a denial of service attack on the HireVault system or any part thereof, or attempt to hack or break any security mechanism of or on the system or any Service (viii) access or use the HireVault system or any Service, Ancillary Software or Usage Data in a way that poses a security or service risk to HireVault, to any user of Services offered by HireVault, to any third party, or to any of HireVault’s or their respective customers, or may subject HireVault or any third party to liability or damages or (ix) if HireVault determines, in its sole and absolute discretion, that the provision of any of the HireVault Services to Customer or any Authorized User is prohibited by any applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
1.14 “Subscription Order Form” means a document whether not entitled or specifically identified as a “Subscription Order Form” that is signed or otherwise agreed to by authorized representatives of both HireVault and Customer and that sets forth various terms and conditions applicable to the HireVault’s Services subscribed for by the Customer, which may include any or all of the following: (i) the services to be provided by HireVault (ii) the Billing Period (iii) the Account Start Date (iv) any applicable Usage Limitations (v) the applicable fees and (vi) other mutually-agreed upon terms and conditions. Each Subscription Order Form is deemed incorporated into and made a part of this Agreement. To the extent any provision set forth in a Subscription Order Form conflicts with any provision set forth elsewhere in this Agreement, the provision set forth in this Agreement shall govern, unless the Subscription Order Form includes the section numbers of this Agreement that the parties agree no longer govern or are modified for the matters covered thereby.
1.15 “Updates” means any corrections, fixes, patches, workarounds, and minor modifications to the HireVault Services that HireVault provides generally to customers.
1.16 “Usage Data” means data concerning the performance and use of the HireVault Services, excluding any Customer Content and any derivatives thereto.
2.1 HireVault Services.
2.1.1 License to Customer. Subject to the terms and conditions of these Terms, HireVault grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and/or right during the Term (defined below) to access and use, and permit the Authorized Users and End Users to access and use, the HireVault Services offered by HireVault (excluding Ancillary Software), solely for the internal business purposes of Customer and only under the Company Account (defined below). HireVault shall electronically deliver or make available the HireVault Services, such that no tangible media passes to Customer.Customer and its Authorized Users and End Users will be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the HireVault Services.
2.2 License to Ancillary Software. Subject to the terms and conditions of this Agreement, HireVault grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to install, access and use the Ancillary Software in executable object code form on compatible devices or platforms Customer owns or controls solely for the purpose of accessing and providing functionality to the HireVault Services subscribed for by Customer under the Company Account.
2.3 Usage Limitations. Customer’s license here under and subscription, as it applies to a particular HireVault Services, will be subject to any usage limitations (for example, limits on the number of Authorized Users able to use the HireVault Services or storage limits) that are set forth in Customer’s subscription (“Usage Limitations”). Without limiting any other rights or remedies herein or otherwise available to HireVault, HireVault may, but is not obligated to, monitor and/or enforce Usage Limitations using technical measures.
2.4 Documentation. Customer may copy and use (and permit the Authorized Users and End Users to copy and use) the Documentation solely in connection with the use of the HireVault Services under this Agreement.
2.5 Restrictions on Use. Customer, Authorized Users, End Users and you will not (and will not authorize, permit, or encourage any third party or Authorized User to): (i)allow anyone other than Authorized Users and End Users to access and use the HireVault Services, or any Ancillary Software (ii) allow an Authorized User or End User to share with any third party his or her Access Credentials to the HireVault Services (iii) save, store, archive, or create derivative works of any portion of the Usage Data without the prior, written permission of HireVault in each instance, but excluding those reports generated through the intended functionality of the HireVault Services as set forth in the Documentation (iv) remove or modify any proprietary marking or restrictive legends placed on the HireVault Services, the Usage Data, the Documentation or any Ancillary Software or (v) take any action, or fail to act in a way, that results in a Severe Infraction.
2.6 Third Party Websites, Applications, Links, and Resources. The HireVault Services may interface or connect with third party websites or resources, for example CheckR. Customer and its Authorized Users and End Users acknowledge and agree that HireVault is not responsible or liable for (i) the availability or accuracy of such websites or resources or (ii) the content, products, or services on or available from such websites or resources. Links and interfacing to such websites or resources do not imply any endorsement by HireVault of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
2.7 Intellectual Property Rights.
2.7.1 HireVault. As between HireVault on one hand and Customer and its Authorized Users and End Users on the other hand HireVault retains title to and ownership of the HireVault Services, Usage Data, the Documentation, the Ancillary Software and any content, materials, improvements or derivative works thereof, together with all copyrights, trademarks, and other Intellectual Property Rights relating thereto. Customer and its Authorized Users and End Users will have no rights with respect to HireVault Intellectual Property Rights, the HireVault Services, the Usage Data, or the Documentation other than those expressly granted under this Agreement.
- Customer. As between HireVault and Customer and its Authorized Users and End Users, Customer and its Authorized Users and End Users retains title to and ownership of their respective Customer Content and any content, materials, improvements or derivative works thereof, together with all copyrights, trademarks, and other Intellectual Property Rights relating thereto. HireVault will have no rights with respect to the Customer Content other than those expressly granted under this Agreement.
- Customer Content. Subject to the terms and conditions of this Agreement, Customer and its Authorized Users and End Users, as applicable, hereby grant HireVault during the Term of this Agreement a non-exclusive, worldwide, transferable, perpetual, irrevocable, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to HireVault(such as hosting providers), to (i) host, store, cache, use, reproduce, modify, make derivative works of, transmit, distribute and display Customer Content or any part thereof where and as HireVault deems necessary to render or perform any HireVault Service hereunder or otherwise in connection with and in furtherance of the exercise of HireVault’s rights and obligations under this Agreement and (ii) use, reproduce, transmit, distribute or display Customer’s trade names, trademarks or service marks as HireVault deems necessary to render or perform any Services hereunder or otherwise in connection with and in furtherance of the exercise of HireVault’s rights and obligations under this Agreement.
3. Service Modifications & Maintenance.
3.1 Service Modifications. HireVault reserves the right to, and may at any time from time to time, with or without notice: (i) enhance, modify or remove any feature(s) or functionality of any HireVault Service (ii) add additional service offerings or (iii) remove service offerings(parts (i) – (iii) collectively, “Service Revisions”).HireVault may notify Customer and its Authorized Users and End Users of any material Service Revisions that will substantially impact use of the Services by posting notice of such material Service Revisions that will substantially impact use of the Services by posting notice of such material Service Revisions on the HireVault Services, support page or HireVault blog. Unless, and only to the extent, HireVault provides otherwise, any Service Revisions will become effective immediately upon their implementation by HireVault. Customer’s and any Authorized User’s or End User’s continued use of any HireVault Service after any Service Revisions become effective constitutes Customer’s and that Authorized User’s acceptance of the Service Revisions.
3.2 Maintenance. At any time from time to time, with or without notice and without HireVault liability to Customer or any Authorized User or End User, all or part of any HireVault Services may be suspended: (i) in order to maintain (e.g. update, modify, upgrade, patch or repair) the HireVault system or any part or aspect of its infrastructure (ii) as HireVault determines may be required by applicable law (iii) as HireVault determines to be necessary to protect its system or any part thereof, or any other party of its infrastructure, from unauthorized access or any attack or (iv) as the result of technical issues or system failures. HireVault will make a good faith effort to notify Customer and its Authorized Users and End Users in advance of any scheduled suspension of the applicable HireVault Services.
4. Company Account and Onboarding of Authorized Users and End Users.
In order for Authorized Users and End User to access the HireVault Services to which Customer has subscribed, Customer must first furnish HireVault with such information as HireVault may request in order to set up an account. There may be accomplished through the Site or other means designated by HireVault from time to time. Once HireVault opens Customer’s account (the “Company Account”), either through the Site or otherwise, Customer will be solely responsible for the configuration thereof, including selection of Authorized Users and End User, issuance of passwords, identification numbers, access codes, private keys, or other identification or login credentials (“Access Credentials”). Customer and its Authorized Users and End Users are solely responsible for the accuracy and confidentiality of their respective Access Credentials, as well as for any use, misuse, or communications entered through their Access Credentials. In addition, it is Customer’s sole responsibility to establish the parameters in the Company Account for each Authorized User and End User and to establish control over who can see what Customer Content, who can edit or delete Customer Content, and any other security and confidentiality measures Customer wishes to have in place with respect to the access of its Authorized Users and End Users. HireVault may offer to, but shall in no case be obligated to, assist Customer in setting up the Company Account and/or any Authorized User accounts. Regardless of whether HireVault participates in the setup of the Company Account and/or any Access Credentials, Customer shall remain solely responsible for, and under no circumstance will HireVault be liable for, any actions or omissions that result from settings in the Company Account. HireVault reserves the right to delete or change Access Credentials at any time and for any reason. HireVault will not be liable for any loss or damage caused by any unauthorized use of a Company Account. Customer assumes all responsibility for its actions and the actions of each and every Authorized User and End User or any other party that obtains access or uses the system by or through a any Access Credentials or Company Account. Customer is responsible for updating all information regarding Authorized Users and End User and Access Credentials if any Authorized User or End User is no longer employed or engaged by Customer.Customer must contact HireVault immediately by e-mailing HireVault at [email protected] and promptly providing HireVault with written notice in accordance with this agreement if customer believes that an unauthorized person may be using the Company Account or that Company Account has otherwise been compromised or if any Company Account information or Access Credentials are lost or stolen.
5. Fees and Payment Terms.
5.1 Subscription Fees. HireVault Services are provided to Customer on a subscription basis for a designated “Billing Period,” for example monthly, quarterly, or yearly beginning on the “Account Start Date” as set forth in the applicable Subscription Order Form.The cost of HireVault Services (“Subscription Fee”) will be as set forth in the applicable Subscription Order Form or through other means designated by HireVault from time to time, such through HireVault’s Site, located at www.hirevault.com/pricing. The Subscription Fee will remain fixed during the Subscription Term (defined below) unless you (i) exceed your Usage Limitations or (ii) subscribe to additional features or HireVault Services. Customer agrees to pay HireVault for all Subscription Fees set forth in the applicable Subscription Order Form and otherwise incurred in connection with any HireVault Services rendered in connection with a Customer Account and/or Customer or its Authorized Users’ or End Users’ use of the Site.
5.2 Payments. Customer may be asked to provide customary billing information such as name, billing address and credit card or other payment information either to HireVault or a third party payment processor(s). Customer agrees to pay HireVault for any and all Fees for HireVault Services made in connection with the applicable Company Account and/or use of the HireVault Services in accordance with these Terms by one of the methods described here or through HireVault’s website. Customer hereby authorizes the collection of any and all Fees by charging the credit card or other payment method provided, either directly by HireVault or indirectly, via a third party online payment processor or by one of the payment methods described on the Platform. In furtherance of your use of the Platform, Customer understands and agrees that HireVault reserves the right, in its sole discretion, to (i) obtain a pre-authorization via Customer’s credit card or other payment method for the Fees or (ii) charge Customer’s credit card or other payment method a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which Customer transacting (e.g. one euro or one British pound), to verify Customer’s credit card or other payment method. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of Customer’s credit card or other payment provider may charge a foreign transaction fee or related charges, which Customer will be responsible to pay. HireVault will take reasonable action to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by Customer.
5.3 Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on HireVault’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to HireVault free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to HireVault will be Customer’s sole responsibility, and Customer will, upon HireVault’s request, provide HireVault with official receipts issued by appropriate taxing authorities, or such other evidence as HireVault may reasonably request, to establish that such taxes have been paid.
5.4 Subscription Term, Termination by Customer, and Renewal. The initial subscription term shall begin on the Account Start Date set forth in the applicable Subscription Order Form and expire at the end of the Billing Period selected during the subscription process (“Initial Subscription Term”). Customer’s subscription will renewal automatically for successive periods equal to the Initial Subscription Term unless otherwise terminated by written notice or through election to cancel made through the Customer’s Account. Should Customer elect to cancel any subscription, Customer may continue using HireVault Services until the close of the then-current Billing Period after which access to HireVault services will be terminated.
5.5 Free Trials. In some circumstances HireVault may offer Customers a free trial to access the HireVault Services for a limited period of time (“Free Trial Period”). If you decide that you do not want to become a paying Customer of HireVault Services upon the lapse of the Free Trial Period, you have to terminate your Company Account by the end of the Free Trial Period. Free trials are available to Customer or Affiliates in only one instance. In some circumstances Customer may be asked to provide payment information upon the start of a free trial. In such instances, Customer authorizes HireVault to begin charging Subscription Fees to the applicable credit card or other payment method should Customer fail to cancel the HireVault Services before to the end of the Free Trial Period.
6. Termination by HireVault.
6.1 Termination Generally. HireVault may terminate the Agreement or suspend Customer’s or any Authorized User’s or End User’s access to HireVault Services in HireVault’s sole and absolute discretion if Customer, or any of its Affiliates, employees, contractors, Authorized Users, or End Users: (i) use any of HireVault’s Intellectual Property Rights other than as expressly permitted here in (ii) is in default or breach of any provisions of this Agreement (iii) is in default of any of its payment obligations to HireVault or (iv) commences liquidation or dissolution proceedings, disposes of or attempts to dispose of its assets other than in the ordinary course of business, fails to continue its business, makes an assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
6.2 Termination for Severe Infraction. HireVaultmay, in its sole and absolute discretion, immediately and with or without notice, suspend or terminate the Customer license in whole or in part and with respect to any or all Authorized Users or End Users or otherwise, or terminate this Agreement, if Customer or any Authorized User or End User commits a Severe Infraction.
6.3 Termination for Convenience. HireVault may terminate the Agreement or suspend Customer’s or any Authorized User’s or End User’s access to HireVault Services for any or no reason, at HireVault’s convenience, by providing Customer at least fifteen (15) days prior written notice.
6.4 Termination of Authorized User or End User. HireVault may terminate the right of any Authorized User or End User to access and use the HireVault Services immediately and without notice if: (1) Customer revokes its status as an Authorized User or End User (2) an Authorized User or End User fails to comply with any of the terms or conditions of this Agreement (3) Customer defaults under or breaches any of the provisions of this Agreement or (4) either HireVault or Customer terminate the Agreement, as applicable, for any reason or no reason. Customer may terminate any Authorized User’s or End User’s right to access and use the HireVaultServices by changing the appropriate Authorized User or End User configurations in the Company Account.
6.5 Effect of Expiration or Termination. If this Agreement is terminated for any reason or expires, all licenses and/or subscriptions to the HireVault Services, the Usage Data, the Documentation, and the Ancillary Software will also terminate upon the effective date thereof. Upon any termination of this Agreement and/or any termination or expiration of a license or a subscription, the following provisions will apply (except with respect to any surviving license or subscription): (1) Customer will pay HireVault for any amounts payable hereunder as of the effective date of such termination or expiration and (2) if Customer has not extracted all Customer Content from the HireVault Services prior to the effective date of expiration or termination, then Customer will pay HireVault any fees associated such extraction that HireVault may charge, and which for which HireVault may reasonably require payment before Customer may extract its Customer Content.
6.6 Data Preservation. If HireVault terminates this Agreement due to a Severe Infraction, or if HireVault suspends the Company Account due to a Severe Infraction without terminating the Agreement, as applicable, HireVault may at any time from and after the effective date of such termination erase or delete any Customer Content then stored by HireVault under or in connection with the Company Account or otherwise, whether by removing pointers to such files or data on any of our servers, overwriting or otherwise.
6.7 Copies and archives. Customer acknowledges that upon termination HireVaultshall be entitled (but not obligated) to retain archives and a copy of any and all Customer Content and other materials or data which Customer or any Authorized User or End User may upload to the system.
- Survival. Any provision of this Agreement that by its nature extends beyond the expiration or any earlier termination of the Agreement, or the authorization of any Authorized User or End User hereunder to access or use the HireVaultServices, shall remain in effect.
7. Confidentiality Feedback.
7.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means:the HireVault Services, the Ancillary Software, any and all object code and source code relating thereto, the Documentation, all pricing and fees relating to the HireVault Services as well as any non-public information or material regarding HireVault’s legal or business affairs, finances, technologies, customers, employees, contractors, Affiliates, properties, or data Notwithstanding any of the foregoing, Confidential Information does not include information which:(i) is or becomes public knowledge without any action by, or involvement of, the Customer or its Authorized Users or End Users (ii) is documented as being known to the Customer or its Authorized Users or End Users prior to its disclosure by HireVault (iii) is independently developed by the Customer or its Authorized Users or End Users without reference or access to the Confidential Information of HireVault and is so documented or (iv) is obtained by Customer or its Authorized Users or End Users without restrictions on use or disclosure from a third person who, to the Customer’s or its Authorized Users’ or End Users’knowledge, does not owe a duty of confidentiality to HireVault.
7.2 Use and Disclosure of Confidential Information. Customer and its Authorized Users and End Users will, with respect to any Confidential Information disclosed by HireVault:(i) use such Confidential Information only in connection with the Customer’s or its Authorized Users’ or End Users’performance of this Agreement (ii) subject to Section 7.4 below, restrict disclosure of such Confidential Information within the Customer’s or its Authorized Users’ or End Users’organization to only those of Customer’s employees and consultants who have a need to know such Confidential Information in connection with the Customer’s or its Authorized Users’ or End Users’performance of this Agreement and (iii) not disclose such Confidential Information to any third party unless authorized in writing by HireVault to do so.
7.3 Protection of Confidential Information. Customer and its Authorized Users and End Users will protect the confidentiality of any Confidential Information disclosed by HireVault using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
7.4 Compliance by Personnel. Customer and its Authorized Users and End Users will, prior to providing an employee or consultant access to any Confidential Information of the HireVault, inform such employee or consultant of the confidential nature of such Confidential Information and require such employee or consultant to comply with Customer’s or its Authorized Users’ or End Users’ obligations hereunder with respect to such Confidential Information.
7.5 Required Disclosures. If Customer or its Authorized Users or End Users are requested to disclose any of HireVault’s Confidential Information pursuant to any judicial or governmental order, Customer or its Authorized Users or End Users will not disclose the Confidential Information without first giving HireVault written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
7.6 Feedback. During the term of this Agreement, Customer or its Authorized Users or End Users may elect to provide HireVault with feedback, comments, and suggestions with respect to the Services, or the Usage Data (“Feedback”).Customer and its Authorized Users and End Users agree that HireVault shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer or such Authorized User or End User.
8. Data Protection and Use.
8.1 Data Security. HireVault will use commercially reasonable efforts to protect the security of the Customer Content on the HireVault Services in accordance with industry standards.However, HireVault(and any third-party hosting provider that HireVault may engage) makes no representation or warranty regarding the security, availability, protection and backup of any Customer Content, and Customer and its Authorized Users and End Users acknowledge that they alone bear sole responsibility for backup of any Customer Content. Customer and its Authorized Users and End Users (and not HireVault) are responsible for (i) routinely archiving all Customer Content, and (ii) keeping any Customer Installed Programs or any other software that Customer or any Authorized User or End User use or run in connection with any Service current with the latest security patches or updates. HireVault will have no liability to Customer, any Authorized User or End User, or any third party for or in connection with any unauthorized access or use, corruption, deletion, destruction or loss of any Customer Content.Some of the Customer Content may be subject to governmental regulation or otherwise may require security measures beyond those set forth herein.Customer agrees not to provide HireVault any such data, directly or through the HireVault Services, unless HireVault has first agreed in writing to provide additional required security measures.
8.2 Aggregated Data. HireVault may collect Usage Data in connection with the HireVault Services. HireVault may combine this Usage Data with other data (including the Customer Content), and use such combined data, or a subset thereof, in an aggregate and anonymous manner.Customer hereby agrees that HireVault may collect, use, publish, and vend such aggregated and anonymized data provided such usage does not identify Customer.
8.3 Digital Millennium Copyright Act. HireVault will remove infringing materials in accordance with the Digital Millennium Copyright Act if we are properly notified that the content infringes copyright. If you believe that your content has been used by HireVault or any other Customer or Authorized User or End User in a way that constitutes copyright infringement, please notify us in writing and by Certified Mail at: Now Checking You, LLC, 1591 E. Atlantic Blvd., Suite 102,Pompano Beach, FL 33060. Your message must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the material that you claim is infringing is located on the Site or within the HireVault Services, sufficient for HireVault to locate the material.
- Your address, telephone number, and email address.
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you that the information in your notice is accurate and, under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you believe that your work has been removed or disabled by mistake or misidentification, please notify our Copyright Agent by sending us notice at the address specified above or by e-mail to [email protected].
9. Representations and Warranties Disclaimer.
9.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement, if it is an entity (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party (if an entity) and have been duly authorized by all necessary corporate action on the part of such party, if and as applicable, and constitute a valid and binding agreement of such party and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
9.2 Additional Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 9.1, Customer represents, warrants and covenants to HireVault that: (i) the Customer Content contains no Prohibited Content and that Customer has the right to provide HireVault the Customer Content in accordance with this Agreement (ii) no Customer Content violates, misappropriates, or infringes any rights of any third party (iii) each Authorized User and End User agrees to comply with the terms and conditions set forth in this Agreement (iv) it will not use or attempt to use any HireVault Services, or any part thereof, or any Customer Content, to engage in any impermissible or unlawful advertising, marketing or other activities, or in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms, or other data subject to export limitations, or in any other way that violates any applicable laws and (v) it is not a person on any list barring it from receiving HireVault Services, including the Denied Persons or Entity Lists, or any other list issued by the U.S. Department of Commerce, Bureau of Industry and Security, detailed at http://www.bis.doc.gov/complianceandenforcement/liststocheck/htm (or successor sites thereto).Customer shall not appoint, authorize or designate any individual to act as an Authorized User or End User under the Company Account if that individual resides in any country on the United States Office of Foreign Assets Control Sanctions List, and no such individual may post any Customer Content to or access any HireVault Service made available by HireVault.
9.3 Disclaimer. THE HIREVAULT SERVICES, THE USAGE DATA, THE ANCILLARY SOFTWARE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER HIREVAULT NOR ITS SUPPLIERS MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.THE HIREVAULT SERVICES MAY FROM TIME TO TIME CONTAIN OR COMPRISE, OR OTHERWISE REQUIRE USE OF, THIRD PARTY SOFTWARE LICENSED TO HIREVAULT PURSUANT TO ONE OR MORE THIRD PARTY LICENSE AGREEMENTS. NEITHER CUSTOMER NOR ANY AUTHORIZED USER ACQUIRES ANY RIGHT OR LICENSE IN OR TO ANY SUCH THIRD PARTY SOFTWARE BY VIRTUE OF THIS AGREEMENT OR OTHERWISE, NOR MAY UNDER ANY CIRCUMSTANCE DIRECTLY OR INDIRECTLY COPY, MODIFY, ALTER, TAMPER WITH, CREATE ANY DERIVATIVE OF, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCERN OR DERIVE THE SOURCE CODE OR ANY UNDERLYING ALGORITHM OF ANY SUCH THIRD PARTY SOFTWARE, OR ATTEMPT TO DO ANY OF THE FOREGOING. HIREVAULT MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.NEITHER HIREVAULT, NOR ANY OF ITS AFFILIATES, THIRD PARTY LICENSORS OR SUPPLIERS IS RESPONSIBLE FOR ANY ACCESS TO OR USE OF THE COMPANY ACCOUNT OR ANY AUTHORIZED USER OR END USER ACCOUNT OR ANY ACTIVITIES THEREUNDER INCLUDING ANY ALTERATION, DELETION, DESTRUCTION, DAMAGE, LOSS OR ANY FAILURE TO STORE ANY CUSTOMER CONTENT.TO THE EXTENT THAT EITHER PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10. Limitation of Liability.
10.1 Generally. IN NO EVENT WILL HIREVAULT OR ANY OF ITS AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES, THIRD PARTY LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER OR END USER, OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. HIREVAULT’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (I) US $500.00 OR (II) THE AVERAGE MONTHLY FEE PAID BY CUSTOMER TO HIREVAULT, CALCULATED BY AVERAGING THE ACTUAL FEES PAID BY CUSTOMER DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM. NO ACTION ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN SIXTY (60) DAYS AFTER THE INCIDENT GIVING RISE TO SUCH ACTION HAS OCCURRED.
10.2 Interruption of Service. Neither HireVault nor any of its agents, representatives, contractors, Affiliates, third party licensors or suppliers shall have any liability whatsoever to Customer or any Authorized User or End User for or with respect to any delay, outage or interruption of the Services or the unavailability in whole or in part of the Services in any respect.
Customer will defend, hold harmless, and indemnify HireVault and its officers, directors, and employees from and against any and all claims, actions, and lawsuits brought by a third party (“Third-Party Claims”) to the extent the Third-Party Claim is based on: (i) an assertion that the Customer Contentor a Customer Installed Program infringes or misappropriates any patent, copyright, trade secret or other intellectual property right of a third party (ii) Customer’s or its Authorized Users’ or End Users’ breach of this Agreement or violation of any applicable laws or (iii) any act, omission, or misconduct of Customer, any of its employees, contractors, or any Authorized User or End User. HireVault will promptly notify Customer of any claim which HireVault becomes aware of and which HireVault believes to be subject to indemnification under this section provided that failure to promptly notify Customer shall not affect Customer’s indemnification obligations hereunder except to the extent that such failure to promptly notify Customer materially prejudices Customer’s ability to defend the claim. At HireVault’s option, Customer will have the right to defend against any such claim(s) with counsel of Customer’s own choosing (subject to a conflicts assessment), and to settle such claim as Customer deems appropriate, provided that Customer (nor any person acting on Customer’s behalf) may not enter into any settlement without HireVault’s prior written consent (which may be conditioned or withheld in its sole and absolute discretion) and provided that HireVault may, at any time, elect to take over control of the defense and settlement of any claim.
12. General Provisions.
12.1 Notices. Unless otherwise specified herein, all notices and other communications between the parties required or permitted by this Agreement or by applicable law (other than routine operational communications), will be deemed properly given, if given by (i) personal service (ii) registered or certified mail, postage prepaid, return receipt requested (iii) nationally recognized private courier service or (iv) facsimile, to the respective addresses of the parties set forth in the Subscription Order Form or such other addresses as the respective parties may designate by like notice from time to time.Notices so given will be effective upon (i) receipt by the party to which notice is given or (ii) on the fifth (5th) business day following mailing, whichever occurs first:
12.2 Relationship of the Parties. Each party is an independent contractor of the other party.Nothing herein will constitute a partnership between or joint venture by the parties, or constitute either party the agent of the other.
12.3 Assignment. This Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the other, which consent will not be unreasonably withheld or denied, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void.However, either party may, without the consent of the other party, assign this Agreement to any person or entity that is acquiring all or substantially all of its assets or which is a successor by merger, consolidation, acquisition of stock or assets, or other business combination to such party (a “Permitted Assignment”) provided that such party provides written notice of the Permitted Assignment to the other party.This Agreement will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assignees.
12.4 Force Majeure. Nonperformance of any party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control of and not caused by the negligence of such party.
12.5 Choice of Law. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of law.
12.6 Exclusive Forum. All parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Broward County, Florida for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including, but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
12.7 Modification. HireVault may modify any policy or other terms referenced in this Agreement or posted on the HireVault Services from time to time, including by modification, deletion, or addition of any part(s) thereof.Except as set forth in the preceding sentence, no modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties.
12.8 No Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative.No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged.Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
12.9 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent.
12.11 Publicity. During the term of this Agreement, HireVault may refer to Customer as a customer of the HireVault Services. In connection therewith, HireVault may use Customer’s name and corporate logos.Any goodwill arising from the use of such name and logos shall inure solely to Customer’s benefit.All other publicity regarding this Agreement shall be mutually agreed to and coordinated by the Parties.
12.12 U.S. Government. With respect to the procurement or use of any HireVault Services or Ancillary Software by or for any agency or part of the U.S. Government, any software provided in connection with any Service and any related explanatory written materials are “commercial items” as that term is defined at 48 CFR Section 2.102, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR Section 12.212 or 48 CFR Section 227.7202, as applicable.Consistent with 48 CFR Section 12.212 or 48 CFR Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computers Software Documentation are being licensed to Customer and its Authorized Users and End Users (i) only as Commercial Items and (ii) with only those rights as are granted to Customer or its Authorized Users pursuant to the terms, conditions and restrictions of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.