This platform agreement (the “Agreement”) is between We Are Hireable, LLC, a New York limited liability company (“Company”), and the customer who has accepted the terms of this Agreement by using wearehirable.com (the “Customer”). This Agreement will be effective as of the date that register on the account registration page (the “Effective Date”). PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING YOUR ACCEPTANCE AND USING THE PLATFORM, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND AGREE THAT THE COMPANY AND ALL OF THE COMPANY’S EMPLOYEES AND USERS WILL BE BOUND BY THIS AGREEMENT. IF YOU AND YOUR COMPANY DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE WESBITE.
NOW, THEREFORE, the parties agree as follows:
- Ownership of Customer-Furnished Items. Customer hereby grants to Company a limited, worldwide, non-transferable and non-exclusive license to use the Customer-Furnished Items as may be reasonably necessary to perform Company’s obligations under this Agreement. Upon termination of this Agreement for any reason, Company shall use reasonable efforts to delete or destroy all Customer-Furnished Items in its custody or control. “Customer-Furnished Items” means the information and data that (1) is owned or controlled by Customer, as the case may be, and (2) is furnished by Customer to Company for use in connection with Customer’s use of the Platform.
- Subscriptions. The Customer hereby subscribes for, and Company shall provide, Company’s proprietary, SaaS-based job recruitment platform (the “Platform”) according to the terms set forth in this Agreement. Customer acknowledges that the Platform will be (1) hosted in a shared environment on servers under Company’s control on which the data of other Customers and users may be stored; and (2) made available to Customer via the Internet at https://wearehirable.com/. Company retains all rights in the Platform, including all rights under the patent, copyright and trademark laws of the United States or other applicable jurisdictions (“Intellectual Property Rights”).
- Ownership of Inventions. Customer acknowledges that the performance of this Agreement by Company may result in Company or its affiliates developing, creating or using pre-existing, computer programs, Platform, concepts, methods, processes, adaptations, modifications, customizations, derivatives, enhancements and/or ideas, trademarks, trade secrets and proprietary processes and software including the Platform, that may result in improvements, modifications, or enhancements to any of them (“Inventions”). The Company will retain all rights in the Inventions, including all Intellectual Property Rights and trade secrets, and Customer hereby disclaims and waives any rights in any Invention in connection with this Agreement.
- SaaS License. Subject to Customer’s payment to Company of the applicable fees set forth on the [PURCHASE PAGE] (the “Subscription Fees”), Company hereby grants to Customer a limited, non-exclusive, non-sublicensable, and non-transferable license to use and access the Platform during the Subscription Period (as defined below) solely for Customer’s internal business purposes. “Subscription Period” shall mean a period beginning on the Effective Date and continuing until the date this Agreement is terminated by one of the parties as set forth herein
- Limited Reliance. The Platform is provided solely for Customer’s benefit, and Company does not intend for any person or entity other than Customer to rely on it. Customer shall not share Customer’s access to the Platform with any person or entity except to Customer’s employees and Customer’s independent contractors, provided that said contractors access the Platform solely for the purpose of providing services to Customer relating to the subject matter of this Agreement (the “Authorized Users”). Customer shall ensure that all Authorized Users comply with the restrictions on use and disclosure set forth in the Agreement and Customer shall be liable to Company for any non-compliance by any Authorized User that would be a breach of this Agreement if the action were taken by Customer. Company is entitled to immediately terminate or suspend Customer’s access to the Platform if Company believes in good faith that there has been a breach of this Agreement. Company shall provide written notice to Customer as soon as practicable following any such termination or suspension of access.
- Customer shall not, as applicable: (1) sell, re-license, rent, lease, or provide service bureau or timeshare access to, the Platform, (2) use the Platform to provide services to third parties, or (3) upload any false, misleading, or infringing information to the Platform.
- Customer acknowledges that the Platform is confidential and proprietary to Company. Customer shall not share to or permit access to the Platform to any third party, including any individual, customer, company, or other entity, or the employees or agents of any such person, whether on a for-profit, loan, gratuitous, temporary, or other basis, whether through consulting, training, or other services provided by Customer, or in any other manner except upon the express prior written consent of Company.
- Updates and Upgrades. Company is entitled to produce or make available, in its discretion Updates, Upgrades, or Modifications to the Platform. Any such Updates, Upgrades, or Modifications will be provided to Customer as and when they are commercially released. “Update” means a set of procedures or new program code implemented by Company (1) to correct errors or implement bug fixes in a Platform, (2) to allow a Platform to continue to function under supported versions of an applicable operating system, or under a newly available operating system, or (3) that includes modifications and enhancements to improve functioning of a Platform. “Upgrade” means a new version or release of a Platform or a particular component of a Platform provided by Company that improves the functionality of, or that adds functional capabilities to the Platform. “Upgrade” includes a version or release of any successor or next-generation product to a Platform that contains or performs comparable or similar functionality and performance as the Platform. “Modifications” means any changes to the features or functionality of the Platform other than Updates or Upgrades.
- Availability. Company will use commercially reasonable efforts to make the Platform available online to Customer in a continuous manner (except as set forth in this Agreement), to correct services outages in a timely manner, and to minimize periods during which the Platform cannot be accessed by Customer as a result of circumstances under Company’s control. Customer acknowledges that Company uses industry-standard third-party data center, hosting, and similar platform as a service services, and in spite of the improved overall availability of such services over self-hosted servers, Company cannot guarantee any specific level of uptime or availability or that the Platform will be available at any specific time.
- Annual Subscription. If Customer selected an annual subscription on the [PURCHASE PAGE], Customer shall bill, and Customer shall pay, the Subscription Fees in advance, on an annual basis, beginning on the date immediately following the end of the Trial Period and automatically recurring on the twelve (12) month anniversary of such date thereafter, until this Agreement is terminated according to its terms.
- Trial Period; Subscription Plans. Beginning on the Effective Date, Customer shall be granted a free fourteen (14) day trial period to use and access the Platform (the “Trial Period”). Unless customer terminates this Agreement prior to the end of the Trial Period, upon conclusion of the Trial Period, Customer shall be charged as follows:
- Credentials. Company shall create a Customer account, which will consist of a unique user ID and password (a “Credential”). Customer will receive one Credential under this Agreement. The Credential will permit Customer to access and use the Platform in accordance with the terms of this Agreement. Customer shall protect the security and integrity of the Credential. Customer shall immediately notify Company if (1) a Credential has become compromised or improperly disclosed or (2) Customer no longer intends to use the Platform, so that Company can issue a new Credential or take steps to limit unauthorized access, as the case may be.
- Assumptions. Customer shall (1) maintain all software, hardware, and other equipment used by Customer to access and use the Platform; (2) secure and maintain all rights required for use of any Customer-Furnished Items in connection with the Platform, and (3) obtain and provide the Customer-Furnished Items in accordance with applicable laws. Customer acknowledges that Company’s performance depends on Customer’s timely performance of its obligations under this Agreement.
- Fees. Customer hereby authorizes Company to charge the credit card provided by Customer for all applicable Subscription Fees as set forth in this Section 6. If Company does not receive any payments when due or Customer’s credit card is not valid or otherwise not authorized for payment, Company will be entitled to (1) assess interest at the rate of one and one-half percent (1½%) per month, (2) recover all costs of collection, including reasonable attorneys’ fees and costs of suit, and (3) terminate the Agreement. Prepaid Subscription Fees are non-refundable.
- Monthly Subscription. If Customer selected a monthly subscription on the [PURCHASE PAGE], Company shall bill, and Customer shall pay, the Subscription Fees in advance, on a monthly basis, beginning on the date immediately following the end of the Trial Period and automatically recurring every thirty (30) days thereafter, until this Agreement is terminated according to its terms.
- Taxes. Each party is responsible for its own Taxes assessed by a tax or other authority except as otherwise set forth in this Agreement. “Taxes” means all present and future income taxes and other governmental charges relating to a party’s income and any related penalties and interest thereon. Customer shall pay any taxes imposed in connection with this Agreement, other than taxes imposed by employment withholding for Company personnel or on Company’s income or property.
- Confidentiality. To the extent that, in connection with this Agreement, Customer comes into possession of any Confidential Information, Customer shall not disclose Confidential Information to any third party without Company’s consent. Customer shall maintain the confidentiality of the Confidential Information using at least the same degree of care as Customer employs in maintaining the confidence of its own confidential information of a similar nature, but in any event no less than a reasonable degree of care. “Confidential Information” means information posted to the Platform by Company, its customers or other users, including information relating to job opportunities, compensation, and user profiles. The Company or its third-party users, as the case may be, will retain all rights in the Confidential Information.
- Termination. This Agreement begins on the Effective Date and will remain in effect until terminated according to its terms. Customer may terminate this Agreement at any time. Either party is entitled to terminate this Agreement on account of the other party’s material breach fifteen (15) days following written notice of breach given to the other party, provided that the other party has not cured the breach within that fifteen-day (15-day) period. Upon termination for any reason Customer’s license to the Platform will immediately terminate and Customer will have no further right to access to the Platform. If Customer has been reported for any reason by multiple users, Customer’s account will immediately be terminated.
- Surviving Obligations. Termination or expiration of this Agreement for any reason will not affect or negate any obligations of the parties which arose prior to the effective date of such termination or expiration. Additionally, the provisions and obligations set forth in Sections 2, 8, 9, 10, 11 and 12 shall survive and be binding on the parties after termination of this Agreement for any reason.
- Limited Use. Customer shall use the Confidential Information only in connection with its use of the Platform. Company hereby consents to Customer’s disclosure of such Confidential Information (1) as expressly permitted by this Agreement, (2) as may be required by law, or to the limited extent necessary in connection with any litigation relating to this Agreement, or (3) to the extent such information (A) is or becomes publicly available other than as the result of a disclosure in breach of this Agreement, (B) becomes available to Customer on a non-confidential basis from a source that is not prohibited from disclosing such information, (C) is already known by Customer without any obligation of confidentiality with respect to that specific Confidential Information, or (D) is developed by Customer independent of any disclosures or use of Confidential Information.
Limitations of Liability, Warranty, and Damages.
- OTHER THAN THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE PLATFORM IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. COMPANY HEREBY DISCLAIMS ANY AND ALL IMPLIED OR EXPRESS WARRANTIES WHATSOEVER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO GUARANTEES AS TO THE TRUTHFULNESS OR ACCURACY OF ANY INFORMATION POSTED TO THE PLATFORM BY ANY OF ITS THIRD PARTY USERS INCLUDING, BUT NOT LIMITED TO, USER PROFILES AND THE QUALIFICATIONS, EDUCATION AND SKILLS DESCRIBED THEREIN.
- the Platform will perform substantially in accordance with its written specifications.
- it has the right to grant the license to the Platform as set forth in this Agreement; and
- the execution, delivery and performance of this Agreement by Company will not conflict with, breach, or cause a default under, any material contract with any third party;
- Company Warranties. Company warrants that:
- Customer warrants that it has the right to provide the Customer-Furnished Items.
- Customer warrants that the Customer-Furnished Items are true.
- Customer Warranties.
- Limitation of Liability. Neither party, nor their respective employees and contractors, will be liable to the other party for any claims, losses, or liabilities relating to this Agreement (“Claims”) for an aggregate amount in excess of the fees paid by Customer to Company during the 12-month period immediately preceding the date on which the initial act or omission giving rise to the liability first occurred. IN NO EVENT WILL EITHER PARTY, OR ITS EMPLOYEES OR CONTRACTORS, BE LIABLE FOR ANY LOSS OF USE, DATA, GOODWILL, REVENUES, OR PROFITS (WHETHER OR NOT DEEMED TO CONSTITUTE A DIRECT CLAIM), OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY LOSS, DAMAGE, OR EXPENSE RELATING TO THIS AGREEMENT. The provisions of this Section a do not apply to (1) any Claim for which one party has an express obligation to indemnify the other under this Agreement, (2) a breach of Section 2 or Section 8, (3) any amounts owed by Customer to Company for the Subscription Fees provided under this Agreement, or (4) the extent resulting from a party’s bad faith or intentional misconduct. In circumstances in which any limitation on damages or indemnification provision under this Agreement is unavailable, the parties shall ensure that the aggregate liability of each party, its employees, and its contractors, for any Claim does not exceed an amount that is proportional to the relative fault that such party’s conduct bears to all other conduct giving rise to the Claim.
- Time Limit for Bringing Actions. Any action, regardless of form, arising out of, or relating to, this Agreement must be brought not later than one year after the cause of action has accrued, except that an action for non-payment must be brought not later than two years after the due date of the last payment owed to the party bringing the action.
- Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Company, its directors, officers, shareholders, employees, and agents, and any person or entity that controls any of them, against any and all claims, liabilities, demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising from any claims asserted by a third party (“Liabilities”) arising out of (1) any willful misconduct or negligent act, or omission of the Customer, (2) any violation by the Customer of any local, state, or federal law, rule, or regulation applicable to the performance of the Customer’s obligations under this Agreement; (3) material or information created or provided by the Customer, including any Liabilities arising from the Customer-Furnished Items; and (4) any Liabilities arising from Customer’s misleading or unauthorized use of the Platform.
- Indemnification Procedures. As a condition to the indemnity obligations contained in this Agreement, Company shall provide Customer with prompt written notice of any claim for which indemnification is sought under this Agreement and shall cooperate in all reasonable respects with Customer in connection with any such claim. Customer will be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing, however Customer shall not enter into any settlement which would require Company to admit to any liability, without Company’s prior written consent.
- Whenever under this Agreement notice is required or permitted to be given, the notice must be in writing. Notice will be deemed given (1) upon receipt when hand delivered or sent by a reputable commercial overnight courier, or (2) and three business days following mailing by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the addressee at its address set forth in this Agreement. Notices to Customer will be provided via the contact information provided by Customer upon creation of Customer’s Platform account. A party may change its address for notice by giving prior written notice of the new address in conformity with the foregoing and the date upon which such new address will become effective.
We Are Hireable, LLC
- Force Majeure. Neither party will be liable to the other party for damages arising out of delays or failures to perform under this Agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected, such as fire, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, any reasonably unforeseeable change in state or national law, decree or ordinance, or any executive or judicial order provided that the affected party promptly informs the other of all relevant information.
- Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR PROVISION OF THE PLATFORM.
- Independent Contractor. Each of Company and Customer is an independent contractor and neither party is, nor will be considered to be, nor shall purport to act as, the other’s agent, partner, fiduciary, joint venturer, or representative.
- Interpretation. Each provision of this Agreement will apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence) or otherwise, notwithstanding the failure of the essential purpose of any remedy.
- Assignment. Neither party may assign any of its rights or obligations under this Agreement (including, interests or claims relating to this Agreement) without the prior written consent of the other party. Company is entitled to assign this Agreement to any affiliate or subsidiary without consent, or in connection with a change of control or other similar transaction of Company.
- Entire Agreement. This Agreement, together with its attachments, constitutes the entire agreement with respect to its subject matter and supersedes any other oral or written representations, understandings, or agreements relating to its subject matter. Customer represents that Customer is not relying on any representation of Company that is not reflected in this Agreement.
- Severability. If any provision of this Agreement is found unenforceable, the provision will not affect the other provisions, but the provision will be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permitted the intent of Company and Customer set forth in this Agreement.
- Waivers and Amendments. No delay or omission by Company or Customer in enforcing its rights or remedies under this Agreement will impair such right or remedy or be deemed to be a waiver of the rights or remedies. No waiver of any right or remedy under this Agreement with respect to any occurrence or event on one occasion will be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion. No amendment or waiver of this Agreement will be valid unless in writing and signed by both parties.
- Section Headings. The section headings contained in this Agreement are for convenience of reference only and will not affect the meaning or interpretation of this Agreement.
- Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of the state of New York, without regard to its principles of choice of law. A party must bring and maintain any action arising out of this Agreement exclusively in any state or federal court located in New York County in the state of New York. Each of Customer and Company hereby expressly and irrevocably submits to the personal jurisdiction of such courts for the purposes of any such action. Each of Customer and Company hereby expressly and irrevocably waives, to the fullest extent permitted by law, any objection to the venue of any such action brought in any such court, any claim that any such action has been brought in an inconvenient forum, or any similar objection or argument.