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This TestedRecruits
Subscription Agreement, including its exhibits (“PSA”), governs any
ordering document executed by the customer identified in that ordering document
(“Customer”) and the TestedRecruits company
identified in that ordering document (“TestedRecruits”).
This PSA, the applicable ordering document, and any other incorporated
terms, comprise the complete understanding between the parties on the subject
matter (“Agreement”).
1. ORDERING
1.1
Ordering Services. Customer may access and use the
subscription and advertising services offered via TestedRecruits’s
websites to the extent and for the term stated in the ordering document (“Services”).
Customer may allow its Affiliate to order Services under the terms of this PSA
only if Customer informs TestedRecruits in writing of
the specific Affiliate authorized to do so. That authorized Affiliate will be
(a) deemed a “Customer” for that order only; and (b) jointly and severally
liable with Customer for its use of the Services and compliance with the Agreement.
“Affiliate” means an entity that controls, is controlled by, or is under
common control with, a party.
1.2
Payment and Taxes. Customer will pay the fees for the Services in accordance
with the payment terms stated in the ordering document. For Services that
require payment by credit card, TestedRecruits will
charge Customer’s credit card upon receipt of the credit card information and
upon renewals. Customer’s purchases are non-cancelable and payment for Services
is non-refundable, except as otherwise stated in this PSA. Customer will pay or
reimburse TestedRecruits for all federal, state, and
local taxes, including sales, use, gross receipts, VAT, levy, GST, or similar
transaction taxes imposed on Customer’s purchase of Services, unless Customer
provides TestedRecruits with a valid tax exemption
certificate. All taxes payable by Customer will be separately stated and
exclusive of the fees. Customer will have no liability for taxes that are
statutorily imposed on TestedRecruits, including
taxes or fees measured by TestedRecruits’s net or
gross income.
2. RESPONSIBILITIES
2.1
Use of Services. Customer will use the Services solely for its intended
purpose, and as outlined in TestedRecruits’s
service-specific (“Service Terms”). Unless otherwise stated in the
Agreement, only Customer-designated employees and contractors are authorized to
use the Services (“Customer User”) and must be a Member when accessing
Services through TestedRecruits.com. A “Member” is an individual who
signs-up to use TestedRecruits’s services under TestedRecruits’s user agreement, currently available, as
amended by TestedRecruits from time to time (“User
Agreement”). The terms of the User Agreement are incorporated into this
PSA. Customer will ensure that Customer Users comply with the User Agreement
when using the Service in in a non-personal capacity. Customer may only use the
Services for Customer’s internal use. Customer will not provide access to the
Services to any third party, except that Customer may allow its Affiliates to
access and use the Services if Customer is fully liable for its Affiliates’ use
of the Services and compliance with the Agreement. Customer will notify TestedRecruits immediately upon learning of any
unauthorized use of the Services or any other breach of security related to the
Services. Customer may use information about Members that it collects in
connection with its use of the Services only as needed for use of the Services
and as expressly permitted in this PSA. TestedRecruits
may communicate to Customer Users about the Services, including how to use the
Services.
2.2
Provision of Services. Customer is responsible for
providing TestedRecruits with the information
necessary for TestedRecruits to provide the Services.
Customer is solely responsible for the accuracy, quality and legality of such
information. If a Service must integrate with third-party systems or
applications used by Customer (e.g. an applicant tracking system, “ATS”
or a customer relationship management system, “CRM”), Customer is solely
responsible for the integration and related activities. TestedRecruits
disclaims any and all liability for the use of third-party systems or
applications residing outside TestedRecruits’s
systems.
2.3 Data
Protection. If either party processes Personal Data (as defined in Section 1
of the DPA) on behalf of the other pursuant to this Agreement, then TestedRecruits and Customer will comply with the terms of
the TestedRecruits Data Processing Agreement,
currently available the terms of which are incorporated into this PSA.
2.4
Compliance with Laws. The parties will comply with all
applicable Data Protection Requirements (as defined in Section 1 of the DPA)
and all international, federal, state, provincial and local laws relating to
(a) corruption practice, bribery, and acts contrary to the public
administration including the US Foreign Corrupt Practices Act of 1977, 15
U.S.C. § 78dd-1, et seq.; and (b) discrimination against employees or
job applicants based on race, color, religion, sex, national origin, veteran
status or disability. TestedRecruits is enrolled in
the U.S. Department of Homeland Security’s E-Verify program regarding the
immigration and employment eligibility of newly hired employees.
3. CONFIDENTIAL
INFORMATION
3.1
Definition. “Confidential Information” means any
information disclosed under the Agreement that (a) if tangible, is clearly
marked as “Confidential” or with a similar designation; (b) if intangible, is
identified as “Confidential” by discloser at the time of disclosure and
confirmed in writing to recipient as being Confidential Information; or (c)
from the relevant circumstances should reasonably be known by recipient to be
confidential (e.g. pricing, non-public Personal Data, etc.). Confidential Information
does not include any portion of the information that recipient can prove (a)
was rightfully known to recipient before receipt from discloser; (b) was
generally known to the public on the Effective Date; (c) becomes generally
known to the public after the Effective Date, through no fault of recipient;
(d) was received by recipient from a third party without any confidentiality
obligation; or (e) was independently developed by recipient without breach of
this section 3.
3.2
Limited Use and Non-Disclosure. Recipient will (a) use
Confidential Information only for the purposes of furthering the business
relationship between the parties; (b) protect Confidential Information using
the same degree of care it uses to protect its own confidential information of
a like nature, but in no event less than a reasonable degree of care; (c) not
disclose Confidential Information to any third party except (1) to Affiliates
or employees, students, consultants, and agents who (i)
have a need to know it in order to carry out their obligations under the
Agreement, and (ii) are under written confidentiality and non-use obligations
at least as restrictive as those stated in this PSA or (2) as required by law;
and (d) not modify, reverse engineer, decompile, create other works from, or
disassemble any Confidential Information, to the extent applicable, unless
authorized in writing by discloser.
4. INTELLECTUAL PROPERTY
RIGHTS AND OWNERSHIP
No right, title or interest
in any intellectual property right transfers to the other party, except for the
limited rights stated in the Agreement. Customer is not obligated to provide TestedRecruits or its Affiliates with any suggestions,
enhancement requests, or other feedback about the Services or related
technology. However, if Customer does provide any feedback to TestedRecruits, TestedRecruits
may use and modify it without any restriction or payment.
5. TERM AND TERMINATION
5.1
Term. This PSA is effective on the date the first ordering
document is executed by Customer and TestedRecruits
(“Effective Date”) and remains in effect until terminated.
5.2
Termination and Suspension. Either party may terminate this PSA or
an ordering document if the other party materially breaches the Agreement and
fails to cure the breach within 30 days after receiving notice of the breach. TestedRecruits may suspend Customer’s access to the
Services if Customer is in breach of the Agreement and the suspension will
continue for as long as reasonably necessary for Customer to remedy the breach.
If all ordering documents under this PSA have expired or been terminated, then
either party may terminate this PSA for convenience by providing written notice
to the other party.
5.3
Effect of Termination. Termination of this PSA or an
ordering document will not relieve Customer from its obligation to pay TestedRecruits any fees stated in an ordering document,
excluding termination by Customer for TestedRecruits’s
uncured material breach of this PSA. If Customer terminates this PSA or an
ordering document because of TestedRecruits’s uncured
material breach, TestedRecruits will refund a
pro-rata share of any pre-paid fees under the applicable ordering document.
Customer will notify Customer Users that their access to the applicable
Services has terminated and TestedRecruits may remove
or discard all content that Customer uploaded or otherwise made available to TestedRecruits in accordance with TestedRecruits’s
policies. Termination of an ordering document does not terminate this PSA;
however, termination of this PSA will result in the immediate termination of
all ordering documents. The provisions of this PSA that by their nature extend
beyond the termination of this PSA will survive termination.
6. LIMITED WARRANTY;
DISCLAIMER
TestedRecruits
makes no representation or warranty about the Services, including any
representation that the Services will be uninterrupted or error-free. To the
fullest extent permitted under applicable law, TestedRecruits
disclaims any implied or statutory warranty, including any implied warranty of
title, non-infringement, merchantability or fitness for a particular
purpose.
7. INDEMNIFICATION
7.1
Indemnification Scope. TestedRecruits will defend and
indemnify Customer, its Affiliates, and their respective directors, officers
and Customer Users from and against all third party claims to the extent
resulting from or alleged to have resulted from (a) the Services’ infringement
of a third party’s intellectual property right; or (b) TestedRecruits’s
material breach of the Agreement. Customer will defend and indemnify TestedRecruits, its Affiliates, and their respective
directors, officers and employees from and against all third party claims to
the extent resulting from or alleged to have resulted from (y) the infringement
of a third party’s intellectual property right by any content, data or other
information uploaded into TestedRecruits’s system or
otherwise provided by Customer; or (z) Customer’s material breach of the
Agreement.
7.2
Indemnification Procedures. Each party will promptly notify the
other in writing of any third party claim. The indemnifying party will (a)
control the defense of the claim; and (b) obtain the other party’s prior
written approval of the indemnifying party’s settlement or compromise of a
claim. The indemnified party will (y) not unreasonably withhold or delay its
approval of the request for settlement or compromise; and (z) assist and
cooperate in the defense as reasonably requested by the indemnifying party at
the indemnifying party’s expense.
8. LIMITATION OF LIABILITY
8.1
Damages Waiver. To the fullest extent permitted by law, neither party, including
its respective Affiliates, will be liable to the other in connection with the
Agreement for lost profits or lost business opportunities, loss of data, or any
indirect, incidental, consequential, special or punitive damages. Subject to
Sections 8.3(b) and (e), TestedRecruits will not be
liable to Customer for any Personal Data Breach (as defined in Section 1 of the
DPA).
8.2
Liability Cap. Neither party, including its respective Affiliates, will
be liable to the other in connection with the Agreement for an amount that
exceeds the total fees paid or payable to TestedRecruits
during the 12-month period before the event giving rise to the liability.
8.3
Exclusions. The limitations of liability stated in sections 8.1 and 8.2 do
not apply to a party’s (a) confidentiality or indemnification obligations; (b)
liability for fraud, gross negligence or intentional misconduct; (c) liability
for death or personal injury; (d) violation of the other party’s intellectual
property rights; or (e) liability for a Personal Data Breach caused by the Data
Processor’s (as defined in Section 1 of the DPA) negligent acts or omissions.
9. DISPUTE RESOLUTION
If an issue arises under the
Agreement and the applicable ordering document was signed by (a) TestedRecruits Corporation, then the Agreement is governed
by the laws of the State of California, and any action or proceeding (including
those arising from non-contractual disputes or claims) related to the Agreement
will be brought in a federal court in the Los Angeles Superior Court of California; (b) TestedRecruits Ireland Unlimited Company, then the
Agreement is governed by the laws of Ireland, and any action or proceeding
(including those arising from non-contractual disputes or claims) related to
the Agreement will be brought in Dublin, Ireland; or (c) TestedRecruits
Singapore, then the Agreement is governed by the laws of Singapore, and any
action or proceeding related to the Agreement will be brought in Singapore.
Each party irrevocably submits to the jurisdiction and venue of the applicable
courts. The prevailing party in any litigation may seek to recover its legal
fees and costs.
10. MISCELLANEOUS
If a conflict exists between
any of the terms in the Agreement, then the DPA will govern, followed by this
PSA, the ordering document, the Service Terms, and finally the User Agreement.
Neither party relies on any undertaking, promise, assurance, statement,
representation, warranty or understanding of any person relating to the subject
matter of the Agreement, other than as stated in the Agreement. Notices will be
provided in writing and delivered by commercial overnight courier to the
address of the other party stated on the ordering document, unless otherwise
stated in the Agreement. Notices are effective on the date of delivery as
indicated in the records of the courier. The Agreement does not create a
partnership, agency relationship, or joint venture between the parties. Neither
party has the power or authority to bind the other or to create any
obligation or responsibility on behalf of the other. Under no circumstances
will any employee of one party be deemed to be the employee of the other. TestedRecruits may name Customer as a customer of TestedRecruits’s in its marketing and promotional
materials. Neither party will assign the Agreement in whole or in part without
the other party’s prior written consent (which consent will not be unreasonably
denied, delayed or conditioned), except to an Affiliate or a successor that is
not a competitor of the non-assigning party, made in connection with a merger
or sale of all or substantially all of a party’s assets or stock. Any attempted
assignment in violation of this restriction is void. The Agreement shall bind
and inure to the benefit of the parties, their respective successors and
permitted assigns. Customer will provide TestedRecruits
written notification if Customer is purchasing Services through a TestedRecruits approved agency. If Customer is an agency
binding a client under this PSA, Customer (a) represents and warrants that it
has the authority to bind the client under this PSA; (b) will notify TestedRecruits in writing of the name and address of its
client that will access and use the Services; and (c) remains jointly and
severally liable for all of Customer’s obligations under the Agreement. If the
Agreement is translated into a language other than English, the translation is
for convenience only, and the English language version will govern. TestedRecruits may remotely monitor Customer’s use of the
Services to ensure compliance with the Agreement. If any provision of the
Agreement is unenforceable, that provision will be modified to render it
enforceable to the extent possible to give effect to the parties’ intentions
and the remaining provisions will not be affected. The parties may amend the
Agreement only in a written amendment signed by both parties, except for the
User Agreement and Service Terms, which may be modified in accordance with
their terms. If this PSA will be executed then it can be executed
electronically and in counterparts, each of which is deemed to be an original
and together comprise a single document. Each party represents and warrants
that the individual binding a party under this PSA is authorized to do so.
TestedRecruits
Confidential and Proprietary
Last Updated: February 17, 2018