Employer terms of service
Last Updated: June 7, 2024
THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE SERVICES PROVIDED BY CAREERPUCK, INC. (“CAREERPUCK”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF CAREERPUCK’S SERVICES OR SOFTWARE, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ONTHE DATE IT IS AGREED TO BY CUSTOMER (SUCH AS BY EXECUTION OF AN ORDER DOCUMENT– AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN CAREERPUCK AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES OR SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
1. THE SERVICE
1.1. Provision of theService. Subject to all the terms of this Agreement, CareerPuck grants Customer the non-sublicensable, non-transferrable (except with an assignment of this Agreement), nonexclusive, limited right to remotely access and use the service described in an Order Document and any associated materials provided by CareerPuck (such as documentation) (collectively, the “Service”) . Part of the Service will be CareerPuck’s provision of certain audio and/or visual content (“Media”). To the extent the Service requires integration with any Customer web or mobile properties – the parties will cooperate diligently and in good faith to achieve such interoperability. An “Order Document” is a schedule, statement of work and/or other ordering document executed by the parties (and may include an online purchase process made available by CareerPuck). In the event Company provides any software, such software is non-exclusively licensed to Customer to use solely as necessary to use the Service. Use will be in object code form only. Customer will not reverse engineer, decompile, modify, or create derivatives of the software. All activity under the Agreement shall be strictly in accordance with and subject to Company’s applicable usage documentation (if any).
1.2. General Restrictions. Customer shall not (and shall not allow any third party to): (a)rent, lease, copy, provide access to or sublicense the Service to a third party(except contractors acting on Customer’s behalf – and Customer is fully responsible and liable for their breach of this Agreement); (b) use the Service to help develop and other product or service (such as a competitive product or service), (c) use the Service for the benefit of any third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law -and then only upon advance notice to CareerPuck, in which case CareerPuck may terminate this Agreement on written notice), (e) modify or create derivatives of the Service or any other materials provided by CareerPuck, or (f) remove or obscure any proprietary or other notices contained in the Service or documentation provided by CareerPuck. Customer will not disclose any pricing related information, or information related to performance of the Service, to any third party (and all such information is CareerPuck’s ConfidentialInformation).
1.3. Feedback. Notwithstanding anything else, Customer grants CareerPuck a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer(whether in oral, electronic or written form) to CareerPuck for the Service. CareerPuck agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”.
2. OWNERSHIP The Customer will own all Media. CareerPuck hereby assigns the Media to Customer, except for (i) Customer Content (as defined below), (ii) third-party content Customer provides or requests to be included, or (iii) any of CareerPuck’s pre-existing intellectual property (“CareerPuck IP”). If any CareerPuck IP is provided in any Media, Customer will have a non-exclusive, perpetual, paid-up license to use such CareerPuck IP solely as it is incorporated into the Media (as delivered by CareerPuck). “Customer Content”means any pre-existing Customer information, data, images, trademarks, logos, images, or other content. Customer hereby grants CareerPuck a perpetual, irrevocable, worldwide, non-exclusive, sublicensable, transferrable, fully paid-up, royalty-free right and license to use, reproduce, display, perform, and distribute the Customer Content and Media (including any modification and derivatives thereof – such as extracts and translations) for CareerPuck’s own marketing purposes. Customer represents and warrants that the Customer Content will not infringe any third party rights (including, without limitation, intellectual property rights and privacy rights). In addition, with respect to any Customer personnel and agents that Customer authorizes to speak, perform, or otherwise appear in any Media, Customer grants CareerPuck (and will ensure that the applicable individual grants to CareerPuck) a perpetual, irrevocable, worldwide, non-exclusive, sublicensable, transferrable, fully paid-up, royalty-free right and license to use their image, likeness, and name, and such performance, in association with all of the foregoing purposes.
3. FEES & PAYMENT All fees are as set forth in the applicable Order Document and are payable in advance. Fees must be paid within thirty (30) days of Customer’s receipt of CareerPuck’s invoice, unless otherwise specified in the applicable Order Document. CareerPuck’s fees are exclusive of all taxes and other governmental assessments. Customer is responsible for all of the foregoing - other than taxes based on the income of CareerPuck.
4. TERM AND TERMINATION
4.1. Term. This Agreement will begin on the Effective Date and terminate as set forth below. Unless otherwise terminated as set forth below, each Order Document will begin on its effective date and have the initial subscription term set forth thereon. Thereafter, each Order Document will automatically renew for successive renewal terms of equal length to the initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty(30) days prior to the expiration of the then-current subscription term.
4.2. Termination. Either party may terminate this Agreement on ten (10) days written notice if there are no Order Documents in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate) (email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding. For clarity, termination of this Agreement will automatically terminate all Order Documents. Notice for failure to pay may be provided via email.
4.3. Effect of Termination. Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to the Service and (ii) each party will return to the other party (or destroy at the discloser’s request) such other party’s ConfidentialInformation. In the event this Agreement is terminated by Customer for CareerPuck’s uncured breach as authorized in Section 4.2, CareerPuck will promptly refund toCustomer all fees paid in advance for the remainder of the term. Except as expressly set forth in the preceding sentence, and except as set forth in Section 5.2 (Service Warranty), all fees are non-refundable and non-cancellable.
4.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.2, 1.3, 2, (with respect to outstanding payment obligations), 4,5.3, 6, 7 and 8. In addition
5. WARRANTIES; DISCLAIMER
5.1. Mutual Warranties. Each party represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party. CareerPuck also represents and warrants that theService will not infringe any third party intellectual property rights.
5.2. Service Warranty. CareerPuck warrants, for Customer’s benefit only, that the Service will be Available 99.5% of each calendar month. “Available” means the Service is functional for most uses in all material respects. The Availability calculation excludes downtime for scheduled maintenance, emergency maintenance, and matters outside of CareerPuck’s control). CareerPuck does not warrant that Customer’s use of the Service will be uninterrupted or error-free. CareerPuck’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in CareerPuck’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity. The limited warranty set forth in this Section 5 shall not apply: (i) unlessCustomer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if the Service is provided on a no-charge or evaluation basis.In addition, if the Service is Available less than 98% for any three (3)calendar months in any rolling six (6) month period, Customer may terminate this Agreement on written notice delivered to CareerPuck within thirty (30)days from the date the right to terminate arises. In the event of any termination pursuant to this Section 5.2, all fees paid in advance by Customer for the remainder of the term will be promptly refunded.
5.3. Disclaimer; Limitation. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.2, THE SERVICE IS PROVIDED “AS IS” AND CAREERPUCK DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I)INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND(INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO CAREERPUCK DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00). THE LIMITATIONS ABOVE WILL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 7. FOR INDEMNITY OBLIGATIONS, THE CAP SET FORTH IN SECTION 5.3(II)WILL BE INCREASED BY TWO TIMES (2x).
6. INDEMNIFICATION. CareerPuck shall indemnify and hold harmless Customer from and against any third party claim (i) that theService (as provided by CareerPuck; not including an content or information provided by Customer) infringes any patent, copyright, or trademark, or (ii)arising from CareerPuck’s gross negligence or willful misconduct, provided thatCustomer provides CareerPuck with: (i) prompt written notice of such claim (but in any event notice in sufficient time for CareerPuck to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. IfCustomer’s use of the Service is, or in CareerPuck’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, CareerPuck may terminate this Agreement on ten (10) days’ written notice (and, in such event, will promptly refund all fees paid in advance for the remainder of the term).
7. CONFIDENTIAL INFORMATION. Each party agrees that all business and technical information it obtains (“ReceivingParty”) from the disclosing party (“DisclosingParty”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information will be CareerPuck’s Confidential Information. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will immediately notify the Disclosing Party and use its best efforts to limit the disclosure.The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party theDisclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
8. GENERAL TERMS
8.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign thisAgreement except as expressly authorized under this Section 8.1 will be null and void.
8.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under thisAgreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency. If a force majeure event prevents a party’s performance hereunder for more than ten (10) days, the other party may terminate this Agreement on written notice.
8.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with theRules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in SanFrancisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legal be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
8.4. Notice. Except as otherwise set forth in this Agreement, any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on an Order Document, or at such other address as may be given by either party to the other and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to CareerPuck (such as for breach of this Agreement must be delivered to the following email address: admin@careerpuck.com (“Legal” – must be included in the subject heading) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
8.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any additional or different terms or conditions provided by Customer in an Order Document(such as any online link to Customer’s own procurement terms), will not apply even if the Order Document is accepted, or performed on, by CareerPuck. It may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).
9. SERVICE LEVEL AGREEMENT
9.1. Availability. CareerPuck will offer an Uptime Percentage above 99.0%, excluding any planned downtime or unavailability attributable to an External Service outside of CareerPuck's reasonable control.
Email Address: admin@careerpuck.com
Last Updated: June 7, 2024
THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE SERVICES PROVIDED BY CAREERPUCK, INC. (“CAREERPUCK”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF CAREERPUCK’S SERVICES OR SOFTWARE, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ONTHE DATE IT IS AGREED TO BY CUSTOMER (SUCH AS BY EXECUTION OF AN ORDER DOCUMENT– AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN CAREERPUCK AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES OR SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
1. THE SERVICE
1.1. Provision of theService. Subject to all the terms of this Agreement, CareerPuck grants Customer the non-sublicensable, non-transferrable (except with an assignment of this Agreement), nonexclusive, limited right to remotely access and use the service described in an Order Document and any associated materials provided by CareerPuck (such as documentation) (collectively, the “Service”) . Part of the Service will be CareerPuck’s provision of certain audio and/or visual content (“Media”). To the extent the Service requires integration with any Customer web or mobile properties – the parties will cooperate diligently and in good faith to achieve such interoperability. An “Order Document” is a schedule, statement of work and/or other ordering document executed by the parties (and may include an online purchase process made available by CareerPuck). In the event Company provides any software, such software is non-exclusively licensed to Customer to use solely as necessary to use the Service. Use will be in object code form only. Customer will not reverse engineer, decompile, modify, or create derivatives of the software. All activity under the Agreement shall be strictly in accordance with and subject to Company’s applicable usage documentation (if any).
1.2. General Restrictions. Customer shall not (and shall not allow any third party to): (a)rent, lease, copy, provide access to or sublicense the Service to a third party(except contractors acting on Customer’s behalf – and Customer is fully responsible and liable for their breach of this Agreement); (b) use the Service to help develop and other product or service (such as a competitive product or service), (c) use the Service for the benefit of any third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law -and then only upon advance notice to CareerPuck, in which case CareerPuck may terminate this Agreement on written notice), (e) modify or create derivatives of the Service or any other materials provided by CareerPuck, or (f) remove or obscure any proprietary or other notices contained in the Service or documentation provided by CareerPuck. Customer will not disclose any pricing related information, or information related to performance of the Service, to any third party (and all such information is CareerPuck’s ConfidentialInformation).
1.3. Feedback. Notwithstanding anything else, Customer grants CareerPuck a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer(whether in oral, electronic or written form) to CareerPuck for the Service. CareerPuck agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”.
2. OWNERSHIP The Customer will own all Media. CareerPuck hereby assigns the Media to Customer, except for (i) Customer Content (as defined below), (ii) third-party content Customer provides or requests to be included, or (iii) any of CareerPuck’s pre-existing intellectual property (“CareerPuck IP”). If any CareerPuck IP is provided in any Media, Customer will have a non-exclusive, perpetual, paid-up license to use such CareerPuck IP solely as it is incorporated into the Media (as delivered by CareerPuck). “Customer Content”means any pre-existing Customer information, data, images, trademarks, logos, images, or other content. Customer hereby grants CareerPuck a perpetual, irrevocable, worldwide, non-exclusive, sublicensable, transferrable, fully paid-up, royalty-free right and license to use, reproduce, display, perform, and distribute the Customer Content and Media (including any modification and derivatives thereof – such as extracts and translations) for CareerPuck’s own marketing purposes. Customer represents and warrants that the Customer Content will not infringe any third party rights (including, without limitation, intellectual property rights and privacy rights). In addition, with respect to any Customer personnel and agents that Customer authorizes to speak, perform, or otherwise appear in any Media, Customer grants CareerPuck (and will ensure that the applicable individual grants to CareerPuck) a perpetual, irrevocable, worldwide, non-exclusive, sublicensable, transferrable, fully paid-up, royalty-free right and license to use their image, likeness, and name, and such performance, in association with all of the foregoing purposes.
3. FEES & PAYMENT All fees are as set forth in the applicable Order Document and are payable in advance. Fees must be paid within thirty (30) days of Customer’s receipt of CareerPuck’s invoice, unless otherwise specified in the applicable Order Document. CareerPuck’s fees are exclusive of all taxes and other governmental assessments. Customer is responsible for all of the foregoing - other than taxes based on the income of CareerPuck.
4. TERM AND TERMINATION
4.1. Term. This Agreement will begin on the Effective Date and terminate as set forth below. Unless otherwise terminated as set forth below, each Order Document will begin on its effective date and have the initial subscription term set forth thereon. Thereafter, each Order Document will automatically renew for successive renewal terms of equal length to the initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty(30) days prior to the expiration of the then-current subscription term.
4.2. Termination. Either party may terminate this Agreement on ten (10) days written notice if there are no Order Documents in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate) (email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding. For clarity, termination of this Agreement will automatically terminate all Order Documents. Notice for failure to pay may be provided via email.
4.3. Effect of Termination. Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to the Service and (ii) each party will return to the other party (or destroy at the discloser’s request) such other party’s ConfidentialInformation. In the event this Agreement is terminated by Customer for CareerPuck’s uncured breach as authorized in Section 4.2, CareerPuck will promptly refund toCustomer all fees paid in advance for the remainder of the term. Except as expressly set forth in the preceding sentence, and except as set forth in Section 5.2 (Service Warranty), all fees are non-refundable and non-cancellable.
4.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.2, 1.3, 2, (with respect to outstanding payment obligations), 4,5.3, 6, 7 and 8. In addition
5. WARRANTIES; DISCLAIMER
5.1. Mutual Warranties. Each party represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party. CareerPuck also represents and warrants that theService will not infringe any third party intellectual property rights.
5.2. Service Warranty. CareerPuck warrants, for Customer’s benefit only, that the Service will be Available 99.5% of each calendar month. “Available” means the Service is functional for most uses in all material respects. The Availability calculation excludes downtime for scheduled maintenance, emergency maintenance, and matters outside of CareerPuck’s control). CareerPuck does not warrant that Customer’s use of the Service will be uninterrupted or error-free. CareerPuck’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in CareerPuck’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity. The limited warranty set forth in this Section 5 shall not apply: (i) unlessCustomer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if the Service is provided on a no-charge or evaluation basis.In addition, if the Service is Available less than 98% for any three (3)calendar months in any rolling six (6) month period, Customer may terminate this Agreement on written notice delivered to CareerPuck within thirty (30)days from the date the right to terminate arises. In the event of any termination pursuant to this Section 5.2, all fees paid in advance by Customer for the remainder of the term will be promptly refunded.
5.3. Disclaimer; Limitation. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.2, THE SERVICE IS PROVIDED “AS IS” AND CAREERPUCK DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I)INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND(INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO CAREERPUCK DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00). THE LIMITATIONS ABOVE WILL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 7. FOR INDEMNITY OBLIGATIONS, THE CAP SET FORTH IN SECTION 5.3(II)WILL BE INCREASED BY TWO TIMES (2x).
6. INDEMNIFICATION. CareerPuck shall indemnify and hold harmless Customer from and against any third party claim (i) that theService (as provided by CareerPuck; not including an content or information provided by Customer) infringes any patent, copyright, or trademark, or (ii)arising from CareerPuck’s gross negligence or willful misconduct, provided thatCustomer provides CareerPuck with: (i) prompt written notice of such claim (but in any event notice in sufficient time for CareerPuck to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. IfCustomer’s use of the Service is, or in CareerPuck’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, CareerPuck may terminate this Agreement on ten (10) days’ written notice (and, in such event, will promptly refund all fees paid in advance for the remainder of the term).
7. CONFIDENTIAL INFORMATION. Each party agrees that all business and technical information it obtains (“ReceivingParty”) from the disclosing party (“DisclosingParty”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information will be CareerPuck’s Confidential Information. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will immediately notify the Disclosing Party and use its best efforts to limit the disclosure.The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party theDisclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
8. GENERAL TERMS
8.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign thisAgreement except as expressly authorized under this Section 8.1 will be null and void.
8.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under thisAgreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency. If a force majeure event prevents a party’s performance hereunder for more than ten (10) days, the other party may terminate this Agreement on written notice.
8.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with theRules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in SanFrancisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legal be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
8.4. Notice. Except as otherwise set forth in this Agreement, any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on an Order Document, or at such other address as may be given by either party to the other and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to CareerPuck (such as for breach of this Agreement must be delivered to the following email address: admin@careerpuck.com (“Legal” – must be included in the subject heading) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
8.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any additional or different terms or conditions provided by Customer in an Order Document(such as any online link to Customer’s own procurement terms), will not apply even if the Order Document is accepted, or performed on, by CareerPuck. It may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).
9. SERVICE LEVEL AGREEMENT
9.1. Availability. CareerPuck will offer an Uptime Percentage above 99.0%, excluding any planned downtime or unavailability attributable to an External Service outside of CareerPuck's reasonable control.
Email Address: admin@careerpuck.com