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Submitted URL: https://smart.smartrecruiters.com/NjY0LU5JQy01MjkAAAGEDoYj7GV5AK2OiAFe1pAU4JkEcwJiKmk5LVkv4GJk6VtfAEXWOomwpdznh_SIcrz1aLe17xs=
Effective URL: https://www.smartrecruiters.com/terms-and-conditions/?mkt_tok=NjY0LU5JQy01MjkAAAGEDoYj7EUSEIubPdCEDfzUSycD2MxcVbC_WYCKIjwVzL5kCm...
Submission: On April 28 via api from US — Scanned from DE
Effective URL: https://www.smartrecruiters.com/terms-and-conditions/?mkt_tok=NjY0LU5JQy01MjkAAAGEDoYj7EUSEIubPdCEDfzUSycD2MxcVbC_WYCKIjwVzL5kCm...
Submission: On April 28 via api from US — Scanned from DE
Form analysis 3 forms found in the DOM
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<form action="/" method="get">
<label for="search">Search in https://www.smartrecruiters.com/</label>
<input type="text" name="s" id="search" value="" style="font-size:1.4rem;" placeholder="Type to search">
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<div class="mktoHtmlText mktoHasWidth" style="width: 260px;"><strong>Enter your email below to sign up for our newsletter.</strong><br> By filling out this form you agree to our
<a href="https://www.smartrecruiters.com/legal/general-privacy-policy/" style="display: inline; text-decoration: underline;">Privacy Policy</a> and
<a href="https://www.smartrecruiters.com/legal/" style="display: inline; text-decoration: underline;">Terms of Service</a>, as well as express your consent to receive communications from us.</div>
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<option value="Albania">Albania</option>
<option value="Algeria">Algeria</option>
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<option value="Antigua">Antigua & Deps</option>
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<option value="Chad">Chad</option>
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<option value="Denmark">Denmark</option>
<option value="Djibouti">Djibouti</option>
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<option value="East Timor">East Timor</option>
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<option value="El Salvador">El Salvador</option>
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<option value="Fiji">Fiji</option>
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<option value="France">France</option>
<option value="Gabon">Gabon</option>
<option value="Gambia">Gambia</option>
<option value="Georgia">Georgia</option>
<option value="Germany">Germany</option>
<option value="Ghana">Ghana</option>
<option value="Greece">Greece</option>
<option value="Grenada">Grenada</option>
<option value="Guatemala">Guatemala</option>
<option value="Guinea">Guinea</option>
<option value="Guinea-Bissau">Guinea-Bissau</option>
<option value="Guyana">Guyana</option>
<option value="Haiti">Haiti</option>
<option value="Honduras">Honduras</option>
<option value="Hong Kong">Hong Kong</option>
<option value="Hungary">Hungary</option>
<option value="Iceland">Iceland</option>
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<option value="Indonesia">Indonesia</option>
<option value="Iran, Islamic Republic of">Iran</option>
<option value="Iraq">Iraq</option>
<option value="Ireland">Ireland</option>
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<option value="Ivory Coast">Ivory Coast</option>
<option value="Jamaica">Jamaica</option>
<option value="Japan">Japan</option>
<option value="Jordan">Jordan</option>
<option value="Kazakhstan">Kazakhstan</option>
<option value="Kenya">Kenya</option>
<option value="Kiribati">Kiribati</option>
<option value="Korea, Democratic People's Republic of">Korea, Democratic People's Republic of</option>
<option value="Korea, Republic of">Korea, Republic of</option>
<option value="Kosovo">Kosovo</option>
<option value="Kuwait">Kuwait</option>
<option value="Kyrgyzstan">Kyrgyzstan</option>
<option value="Laos">Laos</option>
<option value="Latvia">Latvia</option>
<option value="Lebanon">Lebanon</option>
<option value="Lesotho">Lesotho</option>
<option value="Liberia">Liberia</option>
<option value="Libya">Libya</option>
<option value="Liechtenstein">Liechtenstein</option>
<option value="Lithuania">Lithuania</option>
<option value="Luxembourg">Luxembourg</option>
<option value="Macedonia">Macedonia</option>
<option value="Madagascar">Madagascar</option>
<option value="Malawi">Malawi</option>
<option value="Malaysia">Malaysia</option>
<option value="Maldives">Maldives</option>
<option value="Mali">Mali</option>
<option value="Malta">Malta</option>
<option value="Marshall Islands">Marshall Islands</option>
<option value="Mauritania">Mauritania</option>
<option value="Mauritius">Mauritius</option>
<option value="Mexico">Mexico</option>
<option value="Micronesia">Micronesia</option>
<option value="Moldova">Moldova</option>
<option value="Monaco">Monaco</option>
<option value="Mongolia">Mongolia</option>
<option value="Montenegro">Montenegro</option>
<option value="Morocco">Morocco</option>
<option value="Mozambique">Mozambique</option>
<option value="Myanmar">Myanmar, (Burma)</option>
<option value="Namibia">Namibia</option>
<option value="Nauru">Nauru</option>
<option value="Nepal">Nepal</option>
<option value="Netherlands">Netherlands</option>
<option value="New Zealand">New Zealand</option>
<option value="Nicaragua">Nicaragua</option>
<option value="Niger">Niger</option>
<option value="Nigeria">Nigeria</option>
<option value="Norway">Norway</option>
<option value="Oman">Oman</option>
<option value="Pakistan">Pakistan</option>
<option value="Palau">Palau</option>
<option value="Panama">Panama</option>
<option value="Papua New Guinea">Papua New Guinea</option>
<option value="Paraguay">Paraguay</option>
<option value="Peru">Peru</option>
<option value="Philippines">Philippines</option>
<option value="Poland">Poland</option>
<option value="Portugal">Portugal</option>
<option value="Qatar">Qatar</option>
<option value="Romania">Romania</option>
<option value="Russian Federation">Russian Federation</option>
<option value="Rwanda">Rwanda</option>
<option value="St Kitts & Nevis">St Kitts & Nevis</option>
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<option value="Sao Tome and Principe">Sao Tome and Principe</option>
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</form>Text Content
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Menu
TERMS AND CONDITIONS
Last modified on 31st January 2018
This master subscription agreement (“MSA”) between SmartRecruiters and the
Customer identified on the applicable Order Form sets out the terms and
conditions applicable to the customer’s use of the services provided by
SmartRecruiters. By executing an Order Form, the Customer agrees to the terms of
this MSA. Customers not subscribed to a paid plan are not governed by this MSA.
CUSTOMERS SUBSCRIBED TO A PAID PLAN ARE GOVERNED BY THIS MASTER SUBSCRIPTION
AGREEMENT.
1. DEFINITIONS
“Agreement” means this Master Subscription Agreement; any Order Form(s), the
Description, the DPA, the SLA and any Schedules or documents further attached to
or referred in this Agreement;
“Candidate Content” means any Content provided by a candidate to the Customer
that is uploaded to the Services by the Candidate;
“Confidential Information” means any non-public or proprietary information or
material relating to a Party, whether orally, in writing disclosed to the
receiving Party, in electronic, tape, disk, or any other physical or visual
form, by or on behalf of the disclosing Party, that is marked or designated as
confidential or might reasonably be considered as confidential, including
without limitation, all know-how, trade secrets, scientific, technical,
statistical, strategic, financial or commercial information;
“Content” means any and all content, information, data, images, photos, video,
sound, notes, and works of authorship, articles, or other materials;
“Customer” means the customer as set out in the Order Form;
“Customer Content” means any Content provided, imported or uploaded to the
Services by Customer or Users or on Customer’s behalf;
“Data Processing Agreement” or “DPA” means if applicable, the data processing
agreement attached to the Agreement, which is hereby incorporated by reference;
“Description” means the description of the features subscribed at the Effective
Date, as updated from time to time and attached to the Agreement or made
available at https://help.smartrecruiters.com/;
“Effective Date” means the date of signature of the Order Form by the Customer;
“Feedback” means all comments and suggestions, whether written or oral,
furnished by Customer or Users to SmartRecruiters in connection with the
Services;
“Fees” means the Subscription Fees, the Professional Services Fees and any other
fees set out in an Order Form signed by both Parties;
“Force Majeure” means an event, or a series of related events, that is outside
the reasonable control of the Party affected including failures of the internet
or any public telecommunications network, virus or other malicious software
attacks, disasters, explosions, fires, floods, riots, terrorist attacks and
wars;
“Individual” means any individual, candidate, employee or referrer, who
leverages their own data to assist in the sourcing of candidates or applies or
is sourced as a potential applicant to jobs or companies hosted on the
SmartRecruiters Platform;
“Intellectual Property Rights” or “IPR” means all intellectual property rights
wherever in the world, whether registered or not registered, including: (a) all
patent and patent applications; (b) trademarks, business names and logos
(registered or not registered); (c) trade secrets; (d) copyrights; (e)
proprietary and confidential information, ideas, inventions, techniques,
sketches, drawings, works of authorship, models, inventions, know-how,
processes, apparatuses, equipment, algorithms, software programs, software
source documents; and (f) all other similar proprietary and confidential rights;
“Order Form” means the order form and any additional orders signed by the
Parties;
“Party“ or “Parties” means the Customer contracting party and the
SmartRecruiters company as set forth in the Order Form;
“Personal Data” means any Content or information which related to an identified
or identifiable Individuals and protected by the SmartRecruiters Data Privacy
policy at https://www.smartrecruiters.com/privacy-policy/;
“Professional Services” means the professional services as described in the
package specified in the Order Form or in a statement of work (as applicable);
“Professional Services Fees” means the fees for the Professional Services as set
out in the Order Form(s);
“Schedules” means any schedule attached to the main body of this Agreement;
“Services” means the Subscription Services, the Professional Services and any
further Services mentioned in the Order Form(s);
“Service Level Agreement” or “SLA” means the Service Level Agreement, available
at https://www.smartrecruiters.com/sla/
“SmartRecruiters” means the SmartRecruiters company mentioned in the Order Form;
“SmartRecruiters Content” means any content, data, or recommendations that are
provided by SmartRecruiters to the Customer;
“SmartRecruiters Site” means the website located at www.smartrecruiters.com
and any other URLs owned or operated by SmartRecruiters and designated by
SmartRecruiters for use hereunder;
“SmartRecruiters Platform” means the Talent Acquisition Platform as described in
the Description;
“SmartRecruiters Technology” means the Services and all intellectual property
rights in the Services, the SmartRecruiters Content and any of the
SmartRecruiters’ proprietary technology, including software, hardware, products,
processes, algorithms, user interfaces, know-how, technologies, designs and
other tangible or intangible technical material or information made available to
Customer by SmartRecruiters in providing the Services;
“Start Date” means the start date as set forth in the Order Form;
“Statement of Work” or “SOW” means an agreement specifying the details for the
performance of the Professional Services and signed by both Parties;
“Subscription Fees” means the fees for the Subscription Services as set out in
the Order Form(s);
“Subscription Services” means the usage of SmartRecruiters Talent Acquisition
platform (access, hosting, maintenance and support) available and subscribed at
the Effective Date;
“Term” means the term as defined in section 4 hereunder;
“Third-party Add-on Services” means the third-party add-on services as set out
in section 6 hereunder;
“Travel Fees” means all reasonable travel, accommodation and out-of-pocket
expenses incurred in connection with the performance of the obligations under
this Agreement. The Travel Fees shall include any non-refundable travel fees
payable to third parties by SmartRecruiters resulting from a cancellation or
change requested by the Customer;
“Users” means Customer’s employees, contractors, consultants and representatives
who are authorized by Customer to utilize the Services and who are provided with
access to the Services by virtue of a password or the equivalent thereof. Users
shall not be competitors of SmartRecruiters;
Unless other specified herein: (i) the word “including” means “including but not
limited to”; and (ii) any reference to days will mean calendar days. For the
avoidance of doubt the word “ensure” as used in this Agreement does not
constitute a guarantee, but (only) a contractual obligation.
2. PROVISION OF THE SERVICES BY SMARTRECRUITERS
2.1. SmartRecruiters will provide access to the
SmartRecruiters Platform and the Services subscribed by the Customer as
specified in one or more Order Forms signed by the Parties.
2.2. SmartRecruiters will make the Subscription Services for
the Term available to the Customer via Internet. Availability of the
Subscription Services is governed by the terms of the Service Level Agreement,
available at https://www.smartrecruiters.com/sla/.
2.3. The Customer must ensure that a valid Order Form
properly covers its use of the Services at all times.
2.4. In the event that use or size of Customer (i.e. total
Customer’s full-time employees) exceeds the amount specified in the Order Form,
Customer will be responsible for upgrading Customer’s subscription promptly and
pay any additional Subscription Fees accordingly. SmartRecruiters is entitled to
monitor the number of Customer’s full-time employees and shall invoice any
increase of the original full time employees number specified in the Order
Form(s) at the next invoicing interval.
3. FEES, INVOICING AND PAYMENT
3.1 The Customer agrees to pay SmartRecruiters all Fees set
forth in each Order Form.
3.2 Unless otherwise specified in the Order Form, the
Subscription Fees shall be invoiced annually in advance at each anniversary
date. Unless otherwise specified in the Order Form, the first invoice shall be
issued on the Start Date. The Subscription Fees cannot be decreased during the
Term.
3.3 The Professional Fees are provided on either a fixed fee
basis or a time and materials basis as set out in the Order Form.
3.3.1 The Professional Fees on a fixed fee basis shall be invoiced
upfront on the Start Date. Once the fixed Professional Fees defined in the Order
Form are consumed, SmartRecruiters is entitled to invoice additional
Professional Fees on a time and materials basis as defined in the purchased
Package.
3.3.2 The Professional Fees on a time and materials basis shall be
invoiced monthly in arrears. The Professional Fees on a time and materials
basis are based on an estimate and SmartRecruiters cannot guarantee that the
Professional Services will be completed for that amount. If the estimated amount
of Professional Services is exceeded, SmartRecruiters is entitled to invoice the
Customer under the same rates and terms.
3.4 Travel Fees shall be invoiced monthly in arrears together
with 5% standard administration fee. On request SmartRecruiters will provide the
Customer with relevant receipts.
3.5 All other Fees shall be invoiced as defined in the relevant
Order Form(s).
3.6 Payment obligations are based on the Services subscribed in
the relevant Order Form(s). All Fees shall be paid within thirty (30) days from
date of the invoice. If the Customer has specified a credit card or direct
withdrawal from a bank account as an applicable payment mechanism under this
Agreement, the Customer authorizes SmartRecruiters to charge the credit card or
debit the bank account provided to SmartRecruiters for all Fees incurred under
this Agreement.
3.7 Except as expressly set forth herein, all Fees will be
non-refundable once paid to SmartRecruiters (including upon any termination or
suspension of this Agreement). Until paid in full, all past due Fees not subject
to a good faith dispute will bear an additional charge of the lesser of eight
tenths of one percent (0.8%) per month or the maximum amount permitted under
applicable law. SmartRecruiters may condition provision or renewal of Services
upon payment of past-due Fees, subject to the cure period set forth in section
4.2.
3.8 At each renewal term SmartRecruiters may increase any
portion of the Fees, provided that such increase does not exceed seven percent
(7%) of the Fees paid during the immediately preceding term. Furthermore, in the
event that the total Customer’s full-time employees number exceeds the amount
specified in the Order Form, SmartRecruiters shall increase the Fees to reflect
the additional Customer’s full-time employees accordingly and the per-unit
pricing mentioned in the Order Form shall be increased by the same
above-mentioned percentage (i.e. seven (7) % maximum).
3.9 If SmartRecruiters requires use of collection agencies,
attorneys, or a court of law for collection on Customer’s account, the Customer
will be responsible for those expenses.
3.10 All Fees stated in or in relation to this Agreement are
exclusive of any applicable value added taxes imposed by all local, state,
federal or foreign authorities, which will be added to the Fees. All taxes
imposed by all local, state, federal or foreign authorities shall be paid by the
Customer. The Customer will be responsible for all use, sales, and other taxes
imposed on the Services provided under this Agreement other than taxes on
SmartRecruiters’ income, employees or similar taxes.
4. TERM AND TERMINATION
4.1 This Agreement starts on the Effective Date and remains in
effect as long as an Order Form is in effect under this Agreement (“Term”).
Except as otherwise specified in the Order Form, Subscription Services will
automatically renew for additional periods equal to the expiring term or one
year (whichever is shorter), unless either Party gives the other notice of
nonrenewal at least thirty (30) days before the end of the relevant Term. At
that time, the Customer authorizes SmartRecruiters to collect the applicable
Fees, allowing SmartRecruiters to use any valid payment source of yours that
SmartRecruiters has on record.
4.2 Either Party may terminate this Agreement immediately upon
written notice in the event that the other Party materially breaches the
Agreement and thereafter: (a) in the case of material breach resulting from
non-payment of amounts due hereunder, has failed to pay such amounts within
thirty (30) days after receiving written notice thereof; or (b) has failed to
cure any other material breach (or to commence diligent efforts to cure such
breach that are reasonably acceptable to the terminating party) within thirty
(30) days after receiving written notice thereof.
4.3 Each Party may terminate this Agreement if the other Party
becomes the subject of a voluntary petition in bankruptcy, any voluntary
proceeding relating to insolvency or liquidation or any other proceeding
relating to insolvency or liquidation.
4.4 Upon termination or expiration of this Agreement for any
reason: (a) all rights and subscriptions granted to the Customer under this
Agreement will terminate; (b) the Customer will immediately cease all use of and
access to the Services; (c) all Fees then owed by the Customer will become
immediately due and payable; (d) SmartRecruiters may delete any of the
Customer’s content held by SmartRecruiters within thirty (30) days after the
date of termination and (e) if such termination is due to breach of the
Agreement by SmartRecruiters, then SmartRecruiters shall promptly refund to the
Customer all prepaid unearned Subscription Fees.
4.5 Upon written request by the Customer within 30 days from
effective date of termination or expiration of this Agreement, SmartRecruiters
will leave – with no charge – access to Customer’s public API, so that the
Customer can retrieve their data, including, Customer Content, Candidate
Content, in a format described on
https://dev.smartrecruiters.com/customer-api/overview/. Upon the expiration of
the 30 days’ period mentioned above, the Customer agrees and acknowledges that
no access to the Customer’s public API will be granted to the Customer anymore
and SmartRecruiters is entitled to delete Customer’s access and data.
The Customer agrees and acknowledges that SmartRecruiters will delete such
Customer Content, Candidate Content at any time on or after the thirty-first
(31st) day following termination or expiration of this Agreement.
4.6 If the Customer fails to pay undisputed amounts in
accordance with this Agreement or, if and as necessary to protect the Candidate
Content, Customer Content in the event of a threat to the security of the
Services, SmartRecruiters will have the right, in addition to any of its other
rights or remedies, to immediately suspend the provision of the Services to
Customer or any particular User without liability to the Customer until such
amounts are paid in full or such breach is cured, as applicable. In the event of
any suspension for the purpose of protecting Candidate Content or Customer
Content from unauthorized third-party access, SmartRecruiters shall provide
notification in advance to the Customer and in agreement with the Customer,
SmartRecruiters may suspend the service. SmartRecruiters will commit to
re-activating the service as quickly as possible assuming the access issues are
resolved and will still honor the terms of its SLA with the Customer.
4.7 The sections “Fees and Payment”, “Representations and
Warranties”, “Confidentiality”, “Intellectual Property Rights”,
“Indemnification”, “Liability”, “Priority among the documents”, “Severability”,
“Governing Law and Jurisdiction”, “Miscellaneous” shall survive any termination
or expiration of this Agreement.
5. ACCESS GRANT AND RESTRICTIONS
5.1 Subject to the terms and conditions of the Agreement,
SmartRecruiters grants Customer a worldwide, non-exclusive, non-transferable
right to permit the Customer and the Users to do the following solely for the
purposes of locating and hiring potential employees for the Customer:
a. access the features and functions of the Services ordered under an Order
Form and subscribed solely for Customer’s internal business purposes during the
Term; and
b. view, download, reproduce, and print job & Candidate Content made
available to Customer through the Services.
The Customer shall undertake reasonable efforts to make all Users aware of the
provisions of this section 5. SmartRecruiters may suspend access for any User
who violates this Agreement, provided that such violation is not cured within
thirty (30) days of the Customer receiving written notice thereof as set forth
in section 4.2.
5.2 The Customer agrees that the Customer will not: (a)
permit any third party to access and/or use the Services, other than the Users
authorized under the Agreement or in the case of application programming
interface access granted by a third party; (b) rent, lease, loan, or sell access
to the Services to any third party; (c) interfere with, disrupt, alter,
translate, or modify the Services or any part thereof, or create an undue burden
on the Services or the networks or services connected to the Services; (d)
reverse engineer, decompile, disassemble or otherwise attempt to obtain or
perceive the source code from which any software component of the Services are
compiled or interpreted, and the Customer acknowledges that nothing in this
Agreement will be construed to grant the Customer any right to obtain or use
such code; (e) access the Services in order to build or create a derivative,
competitive or similar product or service or copy any ideas, features, functions
or graphics of the Services; or (f) introduce software or automated agents or
scripts to the Services so as to produce multiple accounts, generate automated
searches, requests and queries, or to strip or mine data from the Services.
5.3 The Customer agrees not to attempt to access any of
the Services by any means other than through the interface that is provided by
SmartRecruiters nor to engage in any activity that interferes with or disrupts
the Services or infringes on SmartRecruiters’ and/or its third-party vendors’
brand or intellectual property rights. The Customer will use the Services and
all Candidate Content in conformance with all applicable laws.
5.4 In addition, the Customer agrees not to use, or
encourage or permit others to use, the Services to: (a) stalk and/or harass
another; (b) harm minors in any way; (c) impersonate any person or entity, or
falsely state or otherwise misrepresent the Customer’s affiliation with a person
or entity; (d) forge headers or otherwise manipulate identifiers to disguise the
origin of any Content posted on or transmitted through the Services; (e) use the
Services or Content such that it will mislead a third party into believing that
he or she is interacting directly with SmartRecruiters or the Services; (f)
engage in any chain letters contests, junk email, pyramid schemes, spamming,
surveys or other duplicative or unsolicited messages (commercial or otherwise);
(g) access or use the Services in any manner that could damage, disable,
overburden or impair any SmartRecruiters server or the networks connected to any
SmartRecruiters server; (h) harvest, collect, gather or assemble information or
data regarding other users without their consent; or (i) market any goods or
services for any business purposes (including advertising and making offers to
buy or sell goods or services), unless specifically allowed to do so by
SmartRecruiters.
5.5 The Customer agrees not to store any illegal content
or content which violates applicable law, or material rights of third parties
within the provided storage space. The Customer is obliged to scan the Customer
Content and the content for viruses and other harmful components before storing
them on the server and to use appropriate virus protection programs.
5.6 The Customer shall ensure that each username and
password issued to a User will be used only by that User. The Customer is
responsible for making commercially reasonable efforts to maintaining the
confidentiality of all Users’ usernames and passwords. The Customer agrees (a)
other than third parties who are authorized pursuant to the definition of
“Users” as set forth in section 1 (Definitions), not to allow a third party to
use Customer’s account, usernames or passwords at any time; and (b) to notify
SmartRecruiters promptly of any actual or suspected unauthorized use of the
Customer’s account, usernames or passwords. SmartRecruiters reserves the right
to terminate any username and password, which SmartRecruiters reasonably
determines may have been used by an unauthorized third party or for an unlawful
purpose. SmartRecruiters shall notify the Customer of any actual or suspected
unauthorized use of the Customer’s account, usernames or passwords.
6. INTEGRATIONS – THIRD-PARTY ADD-ON SERVICES
6.1 The Order Form may include the provision of integrations to
third-party services. SmartRecruiters shall make all reasonable efforts to
ensure the successful operation of the integration. However, as the integration
to third-party services is dependent upon the technical setup of third-party
systems, which are not under SmartRecruiters’ control, SmartRecruiters shall not
be liable for any failures relating to the integration resulting from actions or
omissions of the Customer or this third-party.
6.2 The Subscription Services are pre-integrated with a number
of Third-party Add-on Services. These Third-party Add-on Services are provided
by third party vendors on their own behalf and on their own accounts, i.e. such
third-party vendors are not acting as SmartRecruiters’ subcontractors or
sub-processors. When the Customer purchases such Third-party Add-on Services
through the SmartRecruiters Platform, the terms and conditions of those
third-party vendors including the data protection terms apply to the Customer.
The Customer agrees that SmartRecruiters (i) is not responsible for the content
and the operation of any Third-party Add-on Services and makes no representation
and (ii) has no liability whatsoever to the Customer.
The Customer is urged to review such terms and conditions before purchasing or
otherwise accessing any such Third-party Add-on Services. Such Third-party
Add-on Services’ terms and conditions, and not this Agreement, will govern the
Customer’s use of such Third-party Add-on Services. SmartRecruiters cannot and
does not take any responsibility for, nor makes any warranty on behalf of, such
Third-party Add-on Services. If a third-party vendor ceases to make them or any
data or functions therein available for interoperation with the Subscription
Services on reasonable terms, SmartRecruiters may cease providing those features
without entitling Customer to any refund, credit, or other compensation (except
for a refund of third-party services purchased in the situation where Customer
has pre-bought Third-party Add-on Services that are no longer available).
Default payment for the Third-party Add-on Services (e.g. Marketplace) is the
credit card specified by the Customer and Customer shall give credit card
details at the time of subscription. If the Customer does not pay the invoices
linked to the Third-party Add-on Services, SmartRecruiters is entitled to charge
the said credit card for the amounts subscribed by the Customer. The Customer
acknowledges that any prepaid but unused Third-party Add-on Services purchased
on the SmartRecruiters Platform will expire 1-year from the date of purchase of
the Third-party Add-on Services. In addition, Customer agrees and acknowledges
that the third-party vendor may change or amend its guidelines or functionality
and/or the Subscription Services’ interface with it at any time, and
SmartRecruiters will not be liable to the extent any resulting issue is outside
SmartRecruiters’ reasonable control. Per Customer’s request, SmartRecruiters may
act on the Customer’s behalf to procure Third-party Add-on services.
6.3 Job Distribution
As set forth in the Order Form, the Customer may elect to subscribe
to SmartRecruiters “advanced job distribution” services to (i) manage job
posting online and (ii) distribute jobs to third party job boards and
aggregators supported by SmartRecruiters
(https://marketplace.smartrecruiters.com/category/job-boards/). In either case,
SmartRecruiters will not be liable to the extent any resulting issue is outside
SmartRecruiters’ reasonable control or may be able to remove supported job
boards if the third-party job board or aggregator ceases to provide these job
distribution services.
6.4 Any exchange of data between the Customer and Third-party
Add-on Services’ vendors (including job boards and aggregators) is solely
between the Customer and Third-party Add-on Services’ vendor and SmartRecruiters
is not responsible for any disclosure, modification or deletion of the
Customer’s data resulting from access by such Third-party Add-on Services’
vendor.
7. CUSTOMER CONTENT
7.1 Customer grants SmartRecruiters a non-exclusive, worldwide,
royalty-free and fully paid license to: (a) use, reformat, display, modify and
create derivative works of the Customer Content solely for the purpose of and to
the extent necessary to provide the Services hereunder to the Customer
(including, where applicable, sharing and providing such Customer Content with
candidates & employees); and (b) use Customer’s trademarks, service marks, and
logos to provide the Services to Customer and the candidates as set forth
hereunder. All rights in and to the Customer Content not expressly granted to
SmartRecruiters in this Agreement are reserved by the Customer. As between the
Parties, Customer retains all right, title and interest in and to the Customer
Content and SmartRecruiters acknowledges that it neither owns nor acquires any
additional rights in and to the Customer Content not expressly granted by this
Agreement. SmartRecruiters further acknowledges that Customer retains the right
to use the Customer Content for any purpose in the Customer’s sole discretion.
7.2 The Customer shall be responsible for and assumes the risk,
responsibility and expense of: (i) any problems resulting from, the accuracy,
quality, integrity, legality, reliability, and appropriateness of all such
Customer Content; and (ii) acquiring, installing and maintaining all
connectivity equipment, hardware, software and other equipment as may be
necessary for it and its Users to connect to, access, and use the Services.
7.3 SmartRecruiters and the Customer acknowledge and agree that
Individuals own and control certain Personal Data, and SmartRecruiters’ use
thereof, and may have certain rights in such Personal Data (as opposed to
Customer or SmartRecruiters having such rights), notwithstanding anything to the
contrary in this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1 Each Party warrants and represents that it has legal
rights and authority to enter into this Agreement and to perform the obligations
herein.
8.2 Each Party warrants and represents that it shall
respect all applicable laws and regulations (including any export laws and
regulations and customs regulations) related to this Agreement.
8.3 SmartRecruiters represents and warrants that it has
all rights to license the Services to the Customer and it has and will maintain
all necessary third-party licenses necessary for the performance of the
Services.
8.4 SmartRecruiters represents and warrants that, during
each subscription Term under this Agreement, it will: (a) provide the Services
substantially in accordance with the Agreement and the Description; and (b)
implement and maintain backup, security and business continuity measures, in
accordance with industry practices.
8.5 The Customer represents and warrants that it shall
own all right, title and interest in and to all of the necessary Customer
content, copyrights and IPR required for it to comply with its obligations under
this Agreement.
8.6 The Customer represents and warrants not to use the
Services for any purpose that is unlawful and prohibited by this Agreement and
by any regulations.
8.7 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS
IS,” AND SMARTRECRUITERS MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES,
REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,
NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE,
MISUSE, OR INABILITY TO USE THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER
PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY SMARTRECRUITERS. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, SMARTRECRUITERS DOES NOT WARRANT THAT ALL
ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED
OR ERROR-FREE.
9. CONFIDENTIALITY
9.1 Each Party agrees to: (a) use the Confidential
Information of the other Party only for the purposes described and as permitted
herein; and (b) restrict access to the Confidential Information to such of its
personnel, agents, and/or consultants, if any, who have a need to have access
and who have been advised of and have agreed in writing or are otherwise bound
to treat such information in accordance with the terms of this Agreement.
9.2 The foregoing provision will not apply to
Confidential Information that (a) is publicly available or in the public domain
at the time disclosed; (b) is or becomes publicly available or enters the public
domain through no fault of the recipient; (c) is rightfully communicated to the
recipient by persons not bound by confidentiality obligations with respect
thereto; (d) is already in the recipient’s possession free of any
confidentiality obligations with respect thereto at the time of disclosure; (e)
is independently developed by the recipient; or (f) is approved for release or
disclosure by the disclosing party without restriction.
9.3 Notwithstanding the foregoing, each Party may
disclose Confidential Information to the limited extent required (a) in order to
comply with the order of a court or other governmental body, or as otherwise
necessary to comply with applicable law, provided that the Party making the
disclosure pursuant to the order will first have given written notice to the
other Party and made a reasonable effort to obtain a protective order; or (2) to
establish a Party’s rights under this Agreement, including to make such court
filings as it may be required to do.
10. DATA PROTECTION
10.1 Each Party undertakes to comply with its obligations
under the applicable Data Protection regulations with respect to its activities
under this Agreement.
10.2 To the extent that is requested by the Data Protection
legislation, the terms of the DPA shall apply and the Parties agree to comply
with the terms.
10.3 The Customer (data controller) is responsible for the
assessment of the legitimacy of the data collection, processing, use and for the
protection of the rights of the Individuals. To the extent that SmartRecruiters
(data processor) processes Personal Data disclosed by the Customer,
SmartRecruiters will act only on instructions from the Customer in relation to
the processing of that personal data.
10.4 Notwithstanding the foregoing, each Individual has the
option to set up a personal account. With this personal account, the Individual
controls and is able to coordinate different application profiles and
application processes for different job offerings of the Customer and of other
companies. The collection, processing and use of data for creating and using
this personal account is not done on behalf of the Customer, but lies in the
sole responsibility of the Individual and SmartRecruiters and is therefore not
regulated by this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Nothing in this Agreement shall operate to assign or
transfer any Intellectual Property Rights from a Party to the other Party.
11.2 SmartRecruiters Technology is the exclusive property of
SmartRecruiters or its suppliers. Except as expressly set forth herein, no
express or implied license or right of any kind is granted to the Customer
regarding the Services or the SmartRecruiters Technology, or any part thereof,
including any right to obtain possession of any source code, data or other
technical material relating to the SmartRecruiters Technology. All rights not
expressly granted to the Customer are reserved to SmartRecruiters. Ownership of
all work product, developments, inventions, technology or materials provided by
SmartRecruiters under this Agreement will be solely owned by SmartRecruiters.
SmartRecruiters, in its sole discretion, may utilize the Feedback furnished by
either the Customer or the Users to SmartRecruiters in connection with the
Services. The Customer hereby grants SmartRecruiters a worldwide, non-exclusive,
irrevocable, perpetual, royalty-free right and license to incorporate the
Feedback into SmartRecruiters products and services.
11.3 For any inventions or others made within the frame of
this Agreement which are patentable or which can be registered otherwise, only
SmartRecruiters shall be entitled to undertake the respective registrations in
its own name.
11.4 For the avoidance of doubt, know-how such as procedures,
methodologies, processes used for the performance of the Services which exist at
SmartRecruiters before Effective Date as well as know-how which exists before
but was further developed by SmartRecruiters during the Term of this Agreement
shall be and remain the sole ownership of SmartRecruiters.
12. OPEN SOURCE SOFTWARE
The Services provided by SmartRecruiters include certain free and/or open source
software (components) (hereinafter together referred to as “Open Source
Software”). The Open Source Software are governed by the respective/relevant
Open Source Software terms. The license terms of the Open Source Software that
are included in SmartRecruiters’ Services, and the relevant categories and
components, are available under the following link: Open Source Projects
available at https://www.smartrecruiters.com/terms-and-conditions/FOSS-2/.
Customer is obliged to comply with the Open Source Software terms.
13. LIABILITY
13.1 TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN
NO EVENT SHALL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR
COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, PERSONAL OR PROPERTY DAMAGE
RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF
ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN
IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. UNLESS
OTHERWISE SPECIFIED, IN NO EVENT SHALL SMARTRECRUITERS BE LIABLE FOR COSTS
INCLUDING PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
13.2 Nothing in this Agreement will limit or exclude (i) any
liability for death or personal injury resulting from negligence, (ii) limit or
exclude any liability from fraud or fraudulent misrepresentation, (iii) limit
any liabilities in any way that is not permitted under applicable law, or (iv)
excluded any liability that may not be excluded under applicable law.
13.3 Each Party’s aggregate liability under or in relation to
this Agreement shall be limited to the Fees paid by the Customer under this
Agreement for the then-current subscription year, regardless of whether such
liability arises from a material breach of contract, tort breach of statutory
duty or otherwise.
13.4 The Parties agree that the limitations of liability set
forth in this section shall survive and continue in full force and effect
despite any failure of consideration or of an exclusive remedy. The Parties
acknowledge that the Fees have been set and this Agreement entered into in
reliance upon these limitations of liability and that all such limitations form
an essential basis of the bargain between the Parties.
13.5 Any damage claims or claims in reimbursement of expenses
regardless of the legal grounds, shall become statute-barred no later than one
year (i) after the discovery of the circumstances giving rise to the claim or
(ii) from the effective date of the termination or expiration of this Agreement.
14. INDEMNIFICATION
14.1 Subject to section 14.5, SmartRecruiters will defend at
its expense any suit brought against the Customer, and will pay any final
written settlement or final decision SmartRecruiters makes or approves, or any
damages finally awarded in such suit, insofar as such suit is based on a claim
by any third party alleging that the Services misappropriates any trade secret
recognized under the Uniform Trade Secrets Act or infringes any United States
copyright, patent, or other intellectual property right.
14.2 If any portion of the Services becomes, or in
SmartRecruiters’ opinion is likely to become, the subject of a claim of
infringement, SmartRecruiters may, at SmartRecruiters’ option: (a) procure for
Customer the right to continue using the Services; (b) replace the Services with
non-infringing Services which do not materially impair the functionality of the
Services; (c) modify the Services so that it becomes non-infringing; or (d)
terminate the Services and refund any Fees actually paid by Customer to
SmartRecruiters for the remainder of the subscription Term then in effect, and
upon such termination, the Customer will immediately cease all use of the
Services.
14.3 Notwithstanding the foregoing, SmartRecruiters shall have
no obligation under this section or otherwise with respect to any infringement
claim based upon (a) any use of the Services not in accordance with this
Agreement or the Description; or (b) Customer Content; or (c) the negligence and
willful misconduct of the Customer. This subsection states the Customer’s sole
and exclusive remedy for intellectual property infringement claims and actions.
14.4 Subject to section 14.5., the Customer will defend at its
expense any suit brought against SmartRecruiters, and will pay any final
settlement or final decision Customer makes or approves, or any damages finally
awarded in such suit, insofar as such suit is based on (i) any use of Customer
data or Customer Content within the Services, (ii) any use of third party
application provided by the Customer, or (iii) any use of the Services in an
unlawful manner or in violation of the Agreement.
14.5 The indemnifying party’s obligations as set forth above
are expressly conditioned upon each of the following: (a) the indemnified party
shall promptly notify the indemnifying party in writing of any threatened or
actual claim or suit; (b) the indemnifying party shall have sole control of the
defense or settlement of any claim or suit; (c) the indemnified party shall
cooperate with the indemnifying party to facilitate the settlement or defense of
any claim or suit; (d) the indemnified party shall not make any admissions of
liability or compromise in relation to the claim without the Indemnifying
party’s prior consent (such consent not to be unreasonably withheld; and (e) the
indemnified party shall use its reasonable endeavours to mitigate its and the
indemnifying party losses, liability, costs and expenses in respect of the
claim.
14.6 This section 14 states the exclusive right and remedy for
any type of claim described in this section.
15. PROFESSIONAL SERVICES
15.1 The Customer may ask and SmartRecruiters may provide
Professional Services to assist with the implementation, training and
integration of the Subscription Services. Ownership of all work product created
by SmartRecruiters’ as part of the Professional Services will be considered
SmartRecruiters Technology.
15.2 The Professional Services are described either in the
package specified in the Order Form or in a SOW signed by both Parties.
15.3 SmartRecruiters will perform the Professional Services in
a manner consistent with industry standards applicable to the provision thereof.
15.4 The Customer shall collaborate and provide
SmartRecruiters with the sufficient resources, materials and other information
that is required to execute the respective Professional Services.
15.5 Any delays caused by the Customer may result in
additional applicable Professional Fees.
15.6 Daily rates correspond to an eight (8) hours workday.
Travel time is charged at half time.
16. ASSIGNMENT / SUBCONTRACTING
16.1 Neither Party shall assign, subcontract, delegate, or
otherwise transfer this Agreement, or its rights and obligations herein, without
obtaining the prior written consent of the other Party, and any attempted
assignment, subcontract, delegation, or transfer in violation of the foregoing
will be null and void. However, either Party may assign this Agreement in
connection with a merger, acquisition, reorganization or sale of all or
substantially all of its assets, or other operation of law, without any consent
of the other party provided that the assignee is not a competitor of the other
Party.
16.2 Notwithstanding the foregoing, SmartRecruiters may
subcontract any of its obligations under this Agreement. SmartRecruiters shall
remain responsible to the Customer for the performance of the subcontracted
obligations.
16.3 This Agreement shall be binding upon the Parties and
their respective successors and permitted assigns.
17. ANTI-BRIBERY
Neither Party shall receive or offer any bribes, gifts, things of value in
connection with this Agreement.
Each Party hereby undertakes that, at the Effective Date, itself, its directors,
officers or employees have not offered, promised, given, authorized, solicited
or accepted any undue pecuniary or other advantage of any kind (or implied that
they will or might do any such thing at any time in the future) in any way
connected with the Agreement and that it has taken reasonable measures to
prevent subcontractors, agents or any other third parties, subject to its
control or determining influence, from doing so.
18. PRIORITY AMONG THE DOCUMENTS
18.1 This Agreement, including any Order Form(s) and the
documents referred to in it, constitutes the entire agreement between the
Customer and SmartRecruiters and governs the Customer’s use of the Services and
supersedes all prior and written agreements, arrangements, communications and
representations. Any term or condition specified in a Customer’s purchase order
and/or any Customer’s terms and conditions are void and not applicable to the
Services.
18.2 If there is any conflict among the following documents,
the order of precedence shall be (i) the Order Form(s), (ii) this MSA, (iii)
this SLA, (iv) the Description, (v) the fixed package or the SOW and (vi) the
DPA (if applicable).
19. SEVERABILITY
If any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain enforceable
and the invalid or unenforceable provision will be deemed modified so that it is
valid and enforceable to the maximum extent permitted by law.
20. GOVERNING LAW AND JURISDICTION
20.1 This Agreement will be governed by the laws of the State
of Delaware, without giving effect to any conflicts of laws principles that
require the application of the law of a different jurisdiction. The United
Nations Convention on Contracts for the International Sale of Goods does not
apply to this Agreement.
20.2 The Parties agree to submit to the exclusive jurisdiction
of the courts of the State of Delaware to resolve any legal matter arising from
this Agreement.
21. MISCELLANEOUS
21.1 Any waiver or failure to enforce any provision of this Agreement
on one occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.
21.2 Any delay in the performance of any duties or obligations of
either Party (except the payment of money owed) will not be considered a breach
of this Agreement if such delay is caused by any Force Majeure event, provided
that such Party uses reasonable efforts, under the circumstances, to notify the
other Party of the cause of such delay and to resume performance as soon as
possible.
21.3 Any modification or variation of this Agreement shall be in
writing and duly executed by each of the Parties.
21.4 Given the public nature of the relationship between the Parties,
SmartRecruiters may refer to the Customer on its customer’s list, press
releases, marketing materials, and on its website.
Both Parties may agree to write a Hiring Success case study. The Customer will
not unreasonably withhold or delay its consent.
Any press releases or public announcements shall be approved by the Customer.
The Customer will not unreasonably withhold or delay its consent.
21.5 Each of the components that constitute the Services is a
“commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of
“commercial computer software” and/or “commercial computer software
documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48
C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government
end users acquire the Services with only those rights set forth herein.
21.6 Each Party’s relationship to the other Party is that of an
independent contractor, and neither Party is an agent or partner of the other.
Neither Party will have, and will represent to any third party that it has, any
authority to act on behalf of the other Party.
21.7 The Customer is responsible for updating Customer’s data to
provide SmartRecruiters with the Customer’s most current email address.
21.8 Notices will be only validly served pursuant to this Agreement
where the notice has been sent by tracked delivery and/or by email where receipt
of the notice is acknowledged in writing by the other Party.
Any notice provided to the Customer pursuant to this Agreement shall be sent to
the Customer’s address mentioned in the Order Form.
Any notice provided to SmartRecruiters pursuant to this Agreement shall be sent
to SmartRecruiters, Inc., 225 Bush Street, Suite #300, San Francisco, CA 94104,
Attn: Chief Executive Officer.
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