1. Provision of Services by Work4 Labs
1.1. Services. Work4 will make available to Customer the services identified in an Order Form (the “Services”) during the Subscription Term identified in the Order Form. Customer agrees that its purchases under these Terms and each Order Form are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Work4 regarding future functionality or features.
1.2. Provision of Services. Work4 will provide Customer with a list of information on the Order Form necessary to provision Customer’s access to the Services. Work4 will complete provisioning, setup and, if applicable, customization after receipt of the signed Order Form. If Customer has ordered customized implementation services, Customer shall pay amounts due for such services as set forth on the Order Form. If the Customer does not provide accurate or timely information specified on the Order Form, additional fees may be due in order to complete provisioning and set up in a timely manner.
1.3. Third-Party Sites, Products and Services. The Services may rely on or require that the Customer access or enable access to services made available by third parties, which may include online, Web-based application subscription services, and any associated offline products (collectively, “Third Party Offerings”). Customer represents that such access shall comply with the terms of service governing Third Party Offerings and is solely responsible for such compliance. Customer understands and agrees that the availability of the Service, or certain features and functions of the Service, are dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. Accordingly, Work4 will not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability of the service or any feature or function of the Service.
1.4. Availability. Work4 will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime not to exceed 1 hour per week (b) planned downtime exceeding 1 hour a week of which Customer will be notified in advance (b) any unavailability caused by third parties or by circumstances beyond Work4`s control.
1.5. Enhancements and New Features. Subsequent enhancements to the Services made generally-available to all subscribing customers without additional charge will be made available to Customer so long as Customer is in compliance with this Agreement. However, the availability of new features to the Work4 platform may require the payment of additional fees, and Work4 will determine at its sole discretion whether access to any other such new features will require an additional fee. Unless otherwise set forth in an Order Form, these Terms will apply to any updates, upgrades and new offerings subsequently provided by Work4 to Customer as part of any purchased Services.
2. Use of Services
2.1. Use of Services. Customer understands and agrees that depending on what Services Customer purchases, the Services may include: (i) the publication of branded corporate career sites on Facebook, on Work4 hosted mobile optimized websites, and/or on other social media platforms; and/or (ii) products and/or features and/or services that drive traffic, applications and referrals to those sites and/or specific job listings. Customer is solely responsible for the content (including the accuracy) of such listings and information and for any other material (including but not limited to articles, images, advertisements, personal messages, and discussion posts) made available by Customer through the Services (collectively, “Customer Data”). Customer acknowledges that Work4 does not screen employers or candidates and that Work4 is not a recruiter or employment agency.
2.2. Customer Responsibility. Customer is responsible to ensure that Customer’s employees, independent contractors, and agents who have access to the Services (collectively, “Users”) comply with these Terms, and maintain the confidentiality of their passwords and user names.
2.3. Intended and Lawful Purposes. Customer agrees to use the Services only for purposes that are permitted by these Terms in compliance with applicable law, regulation, and generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). Customer agrees that it shall not use the Services to post or disseminate any material that is infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates the rights of any third party.
2.4. Temporary Suspension. Work4 may temporarily suspend Customer’s or its Users’ access to the Services in the event that: (i) Customer fails to pay amounts when due; or (ii) Work4 determines, in its sole discretion, that Customer or any User is engaged in any unauthorized conduct or is in any violation of these Terms. Work4 will attempt to contact Customer prior to such suspension, provided, however, that Work4’s exercise of the suspension rights will not be conditioned upon Customer’s receipt of any notification. Customer agrees to notify Work4 immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Services.
3. Proprietary Rights
3.1. Reservation of Rights. Each party will maintain all rights, title and interest in and to all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to use the Service under these Terms do not convey any additional rights in the Service or in any Intellectual Property Rights associated therewith.
3.2. Work4 License. Subject to these Terms, Work4 hereby and non-exclusive license to use and access the Services during the Subscription Term solely for Customer’s own use.
3.3. Work4 Marks. Work4™ and other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Work4 (collectively, “Marks”) and Customer may only use such Marks to identify itself as a customer and user of the Service. Customer acknowledges that Work4 may display a “Powered by Work4” or similar language on publications generated through the Services.
3.4. Competitive Service. Customer will not access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services. Customer will not copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.
3.5. Customer License. Customer grants Work4 a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute any material which the Customer and its Users submit, post, or display on or through, the Services or which is required for Work4 to provide the Services. This license is for the sole purpose of enabling Work4 to operate, display, distribute, and promote jobs posted by Customer and to provide the Services. Customer acknowledges that some promotion of Customer job openings, such as through Twitter, may not be removed after publication. If Customer has elected to provide Work4 with access to Customer systems, through an API or otherwise, Customer hereby grants to Work4 all necessary rights to implement and maintain such connections during the Subscription Term.
3.6. Feedback. Any feedback provided by Customer or Users regarding the Services (“Feedback”) is the proprietary and Confidential information of Work4, and Customer hereby assigns all right, title and interest in and to such Feedback, including all intellectual property rights therein, to Work4.
4. Data and Content
4.1. Customer Data. Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data also includes resumes and other information provided to Customer through the Services by applicants. Customer Data is the Confidential Information of Customer under these Terms.
4.2. Safeguarding of Customer Data. Work4 will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data (the same as Work4 uses to protect its data); and provide the Services in accordance with applicable laws and government regulations. However, Customer shall be responsible for maintaining backups, on systems other than those of Work4, of any important files and content; and Work4 shall not be liable for unavailability of Customer Data through the Services if Customer has not made such backups.
5. Fees and Payment Terms
5.1. Fees. Customer agrees to pay all fees specified in all Order Forms. Except as otherwise specified in the Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on Services purchased, (iii) payment obligations are non-cancelable and non-refundable, and (iv) the Services purchased cannot be decreased during the relevant Subscription Term. Subscription pricing may change on renewal or once a year upon thirty (30) days’ prior written notice. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
5.2. Invoices and Payment. All fees will be invoiced in advance and in accordance with the applicable Order Form. Except as otherwise set forth in the applicable Order Form, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.
5.3. Overdue Amounts. If Work4 does not receive fees by the due date, then at Work4’s discretion, (i) Work4 may charge a late fee equal to 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (ii) Work4 may, without limiting Work4’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full. Work4 agrees that it will not exercise its rights under this section if the applicable charges are under reasonable and good-faith dispute and Work4 determines that Customer is cooperating diligently to resolve the dispute.
5.4. Taxes. All fees payable are exclusive of all sales, use, value added, and all other similar taxes imposed by any federal, state, or local governmental entity for items and/or services provided under the Order Form, all of which shall be the responsibility of the Customer, excluding taxes based solely on Work4 income or property.
Each party acknowledges that it will have access to certain information and materials concerning the other party’s business and products that are confidential, including but not limited to the terms of this Agreement, non-public financial information, information about future and proposed services and products, technologies and know-how, and proprietary business processes (“Confidential Information”). Each party agrees that it will not use the Confidential Information of the other party except in performance of this Agreement, or disclose such Confidential Information to third parties except (i) as required by applicable law and provided the receiving party uses reasonable efforts to give the disclosing party advance notice of such required disclosure; and (ii) to its parent company or its parent company’s majority-owned subsidiaries (“Affiliates”) that have a need to know such information and have agreed to protect the Confidential Information in a manner no less protective than this Agreement. The receiving party will also take every reasonable precaution to protect the Confidential Information of the disclosing party with the same care it uses to protect its own Confidential Information, but no less than reasonable care. For purposes of the foregoing obligations, Confidential Information does not include information which (i) was rightfully known to the receiving party prior to its receipt, (ii) is or becomes publicly available without breach of this Agreement or wrongful act of the recipient, (iii) is received by the recipient without an obligation of confidentiality and without breach of this Agreement, or (iv) is developed independently by the recipient without using Confidential Information of the other party.
7.1. Warranties. Each party represents and warrants that (a) it has the requisite corporate power and authority to enter into and perform its obligations under this Agreement; and (b) it shall comply with all applicable privacy, consumer and other laws and regulations. In addition, Work4 represents and warrants that it shall use reasonable commercial efforts to maintain availability of the Services.
7.2. General Disclaimers. EXCEPT AS EXPRESSLY STATED HEREIN, (I) NEITHER PARTY MAKES ANY WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (II) THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND WE MAKE NO REPRESENTATION OR WARRANTY THAT THE WORK4 SERVICES SHALL BE COMPLETELY SECURE OR OPERATE WITHOUT DEFECT, LOSS OF DATA, ERROR OR INTERRUPTION.
8.1. Intellectual Property Indemnification. Work4, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Services in accordance with the terms and conditions of these Terms infringes a third party’s United States copyright or patent issued as of the Subscription Start Date (defined in Section 10.1 below). Work4 retains the option to settle any such claim at any point. The foregoing obligation will not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data (ii) use of the Services in combination with any software, hardware, network or system not supplied by Work4 where the alleged infringement relates to such combination, (iii) any modification or alteration of the Services by the Customer (iv) if Customer continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) Customer’s violation of applicable law or this Agreement.
8.2. Customer Data. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any third party trade secret, trademark, copyright, or patent issued as of the Subscription Start Date; (ii) or arising from occurrence of the conditions set forth in Section 8.1(i)-(v) above. Customer will also indemnify Work4 against any violation of these Terms by Customer’s Affiliate.
8.3. Conditions. The parties’ obligations under this Section 8 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s), at the indemnifying party’s expense. The indemnifying party will not enter into any settlement which requires an admission of liability of the indemnified parties or imposes monetary obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 8 are subject to the limitations and exclusions set forth in Section 9 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of infringement of third party rights by the indemnifying party.
9. Limitation of Liability
9.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
9.2. Exclusion of Consequential Damages. IN NO EVENT WILL WORK4 AND/OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY LOSS OF CUSTOMER DATA OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF WORK4 AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
10. Term and Termination
10.1. Initial Subscription Term. For all Work4 products and services subscriptions, the Initial Subscription Term begins 15 days after the date the Order Form is executed by the parties (the “Subscription Start Date”) and continues for the period set forth in the Order Form (each a “Subscription Term”). The customer is solely responsible for providing the required information and documents to get the product or service live, no later than 2 days after the date Order form is executed by the parties.
10.2. Acceptance Period. On or before the Subscription Start Date, Work4 will notify the customer in writing (email to suffice) stating that the deliverables outlined in the Order Form have been completed and delivered. Delivery is defined by Work4 as the time at which the Service is fully operational and ready to be used by the Customer without consideration of the Customer’s internal processes or availability of third party accounts (Facebook, Google, Twitter, etc.), such as advertising, hosting, branding, and other third party services. The deliverables are deemed accepted by the Customer within 5 days from the date of Work4’s notice unless rejected by the Customer within such 5-day period, in which case the Customer shall itemize and detail in written notice (email to suffice) to Work4 each deliverable which is not operational and ready to be used by the Customer. Work4 will use diligent efforts to make corrections and promptly deliver the deliverables for re-test and acceptance subject to the foregoing process.
10.3 Renewal Term. The contract will automatically renew for successive Subscription Terms of the same duration unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current Subscription Term.
10.4. Termination for Cause. These Terms may be terminated by either party: (i) for cause upon thirty (30) days written notice if the other party breaches or defaults under any material provision of these Terms and does not cure such breach prior to the end of such thirty (30) day period; and (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations.
10.5. Effect of Termination. If Work4 and the Customer have issued a single Order pursuant to these Terms, termination of that Order Form will automatically terminate these Terms. If Work4 and the Customer have issued multiple Order Forms pursuant to these Terms, termination of one Order Form will not terminate any other Order Form or these Terms.
10.6. Survival. Except to the extent expressly provided to the contrary herein, all payment obligations and the terms of Sections 3.1, 3.6, 4.1, 5.4, 7, 8, 9, 10.6 and 11 will survive the expiration or termination of these Terms.
11. General Provisions
11.1. Complete Agreement. These Terms and all Order Forms issued under this Agreement set forth the entire agreement between the parties and supersede all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of these Terms and Order Forms. To the extent of any conflict or inconsistency between the provisions in the body of these Terms and any Order Form, the Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation (excluding Order Forms) will be incorporated into or form any part of these Terms, and all such terms or conditions will be null and void. These Terms may be modified or amended only by a writing signed by the parties with the exception of unilateral written notice-address changes.
11.2. Relationship. The parties are independent contractors. Nothing in these Terms will be deemed or construed to create or imply any agency, representative, joint venture, partnership, or employer-employee relationship between the parties for any purpose, including but not limited to taxes or employee benefits.
11.3. Public Use. Customer acknowledges and agrees that Work4 products will be installed on Customer’s public Facebook page and the fact that the Customer uses the Service is public information. Work4 may reference Customer and its use of the Services in private customer and prospect communications and on Work4′s website. Customer also agrees that Work4 may reference Customer’s use of Services in marketing and public relations materials, including a press release announcing Company as a new customer. Customer grants Work4 a nonexclusive, worldwide license, during the Term, to use and display Company trademarks, trade names and logos solely in connection with the foregoing uses.
11.4. Governing Law and Venue. These Terms will be governed by and construed under the laws of the United States and the State of California without regard to its conflict of law rules. The state and federal courts located in San Francisco, California, will have exclusive jurisdiction to adjudicate any dispute relating to these Terms. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
11.5. Assignment. Either party may assign these Terms in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph will be, at the non-assigning party’s election, termination of these Terms upon written notice to the assigning party. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6. Force Majeure. Neither Party nor any Affiliate will be liable to the other for non-performance or delay in performance caused by anything beyond its reasonable control, including without limitation, acts of God, acts or omissions of the other, acts of government, war, strikes, lockouts or embargoes.
11.7. Notice. Any notice, report, approval or consent required under these Terms will be in writing and will be deemed to have been given upon receipt (i) delivered personally, by courier or by express service or (ii) mailed by registered or certified mail postage prepaid to the respective addresses of the parties. The Customer’s address will be the Customer address on record in Work4 account information. The Work4 address will be the address of record at the time, currently:
Work4 Labs Inc. 118 2nd Street 6th Floor San Francisco, CA 94105 USA
Customer Terms of Service effective November 15, 2012 can be found here.