This Subscription Agreement (this “Agreement”) is between Entelo, Inc., a Delaware corporation with a principal place of business at 123 Mission Street, San Francisco CA 94105 (“Entelo”) and the entity identified on an executed Subscription Order (“Subscriber”), and is entered into as of the start date set forth on such Subscription Order (the “Effective Date”). This Agreement sets forth the terms under which Subscriber will be permitted to use Entelo’s hosted employee recruiting service (the “Service”).
Now, therefore, in consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as follows.
1.2 “Subscriber Data” means data (including without limitation text, images, and files) created by Subscriber or uploaded, collected, posted or published through the Service by Subscriber, including without limitation by Subscriber’s Users.
1.3 “Subscription Fees” means the fees charged to Subscriber by Entelo in exchange for access to the Service as set forth in a Subscription Order or as amended pursuant to Section 2.
1.4 “Subscription Order” means a standard Entelo ordering document executed by the parties and setting forth the Subscription Period, the Subscription Fees, and the features and levels of usage that Subscriber is authorized to access through the Service.
1.5 “Subscription Period” means, with respect to any Subscription Order, the period of time during which the Subscription Order is applicable, as defined by the start and end dates or the duration set forth on such Subscription Order.
1.6 “Term” means the time period composed of the Initial Term (as defined in Section 1) and all subsequent Renewal Terms (as defined in Section 7.2), unless this Agreement is earlier terminated in accordance with the provisions of Section 7.3.
1.7 “User” means any individual who uses the Service on Subscriber’s behalf or through Subscriber’s account.
- ENTERING INTO AGREEMENT
2.1 Subscription Order. To access the Service, Subscriber must have entered into a Subscription Order with Entelo. No Subscription Order will be effective until executed by both parties, and each Subscription Order will remain valid only during its Subscription Period and as set forth in Section 2. To the extent this Agreement conflicts with the express terms of a Subscription Order, the terms of the Subscription Order will prevail.
2.2 Trial Access. If Entelo makes access to the Service available to Subscriber without charge on a trial basis for a limited period, the agreement between Subscriber and Entelo concerning the trial period and any limitations or restrictions on use of the Service, however documented, will be considered a Subscription Order, and the specified trial period will be considered the Subscription Period.
- ACCESS AND FEES
3.1 Access. Subject to all terms and conditions of this Agreement, Subscriber may access the Service in accordance with this Agreement for Subscriber’s internal business purposes.
3.2 Seats. Subscriber may have only as many User accounts (“Seats”) activated for access to the Service at any time as specified in an applicable Subscription Order.
3.3 Restrictions on Seats. No Seat may be shared by more than one User. Entelo may track the usage of the Service and disallow use of more than the authorized number of Seats. Subscriber may transfer a Seat from one User to another if Subscriber advises Entelo in advance of the transfer and provides the information reasonably requested by Entelo about the new User. The transfer will be effective when Entelo returns a confirmation of the transfer via the Service or email to Subscriber. Subscriber may transfer a particular Seat no more often than four times in any twelve-month period, unless Entelo agrees otherwise in writing.
3.4 Subscription Fees. Subscriber agrees to pay the Subscription Fees to Entelo. Subscription Fees are (a) based on the features of the Service and level of use ordered and not on actual usage and (b) non-cancelable and non-refundable.
3.5 Billing and Payment. Entelo will invoice Subscriber in advance for Subscription Fees. Subscriber will pay invoices from Entelo within 30 days following Subscriber’s receipt of the invoice. If Subscriber elects to pay any Subscription Fees with a credit card, Subscriber hereby (a) authorizes Entelo to charge the Subscription Fees to such credit card account and verify that the credit card account has the necessary funds or credit available to cover Subscriber’s purchase and (b) agrees to provide Entelo with updated information regarding Subscriber’s credit card account promptly when the information changes, or on Entelo’s request. All payments pursuant to this Agreement will be made in United States dollars.
- SUBSCRIBER RESPONSIBILITIES AND RESTRICTIONS.
4.1 Acceptable Use. Subscriber shall not: (a) use the Service for any illegal purpose or in violation of any applicable law or regulation, including laws that govern email marketing such as the CAN-SPAM Act of 2003; (b) impersonate any person or access the Service account of any third party without permission; (c) rent, lease, resell, sublicense, distribute, or otherwise transfer access to the Service, or use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (d) disable or circumvent any feature of the Service that provides or enhances security, restricts access, monitors use, or enforces limitations on use; (e) interfere with or impair the operation of the Service by any means including introduction of malware or excessive usage or network traffic; (f) provide Service passwords or other log-in information to any third party; (g) share non-public Service features or content with any third party; (h) use any automated methods (including “robots” or “crawlers”) or excessive numbers of data requests to download or “scrape” any materials or information from the Service; (i) disassemble, decompile, reverse engineer, or translate any software related to the Service, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; or (j) use the Service or any data or materials obtained from the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service.
4.2 Misuse. In the event that Entelo suspects any breach of the requirements of Section 4.1, including without limitation by Users, Entelo may suspend Subscriber’s access to the Service without advanced notice, in addition to and without prejudice to any other remedies Entelo may have.
4.3 Unauthorized Access. Subscriber shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other login information. Subscriber shall notify Entelo immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop such breach.
4.4 Responsibility for Users. Subscriber is responsible and liable for Users’ use of the Service, including without limitation any User conduct that would, if performed by Subscriber, breach this Agreement.
4.5 Compliance with Laws. In its use of the Service, Subscriber shall comply with all applicable laws, including without limitation laws governing employment and hiring, the protection of personally identifiable information and other laws applicable to the protection of Subscriber Data.
4.6 Hiring Practices. It is Subscriber’s responsibility to be familiar with laws, regulations, and best practices related to hiring, including without limitation related to illegal discrimination, such as the Uniform Guidelines on Employee Selection Procedures issued by the U.S. Equal Employment Opportunity Commission.
- CONFIDENTIAL INFORMATION.
6.1 Definition. “Confidential Information” means (a) in the case of Subscriber, all Subscriber Data, and (b) in the case of Entelo, any and all non-public features of the Service including, without limitation, the pricing plans and features, the Subscription Order form, and all pages and materials on the Entelo website that are accessible only after logging in. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in receiving party’s possession at the time of disclosure; (ii) is independently developed by receiving party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of wrongdoing by receiving party; or (iv) is approved for release in writing by disclosing party.
6.2 Confidentiality Restrictions. Receiving party shall not use Confidential Information for any purpose other than to provide, facilitate, access or use the Service as allowed under this Agreement (the “Purpose”). Receiving party shall not disclose Confidential Information: (a) to any employee or contractor of receiving party unless such person needs access in order to facilitate the Purpose and is subject to a nondisclosure agreement with receiving party; and (b) to any other third party without disclosing party’s prior written consent, or as expressly permitted under this Agreement. Receiving party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. With respect to each item of Confidential Information, the obligations of this Section 2 will continue for five years after the date of disclosure.
6.3 Exception. Notwithstanding the provisions of Section 2, receiving party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority, provided that receiving party shall, to the extent allowed by law, give disclosing party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure by lawful means, at disclosing party’s expense.
- TERM AND TERMINATION.
7.1 Initial Term. The initial term of this Agreement (the “Initial Term”) is the Subscription Period.
7.2 Renewal Term. Unless either party provides notice in writing at least thirty (30) days before the last day of the Initial Term or then-current Renewal Term, as appropriate, that such party does not wish to renew this Agreement, this Agreement will automatically renew for successive additional terms (each, a “Renewal Term”). The duration of each such Renewal Term will be equal to the lesser of one year or the length of the Subscription Period set forth in the most recent Subscription Order between the parties.
7.3 Termination for Breach. Either party may terminate this Agreement upon notice if the other party materially breaches this Agreement, provided that (a) such party gives 30 days’ notice to such other party describing the manner in which the Agreement has been breached, and (b) the breach remains uncured during such notice period. Notwithstanding the foregoing, if Subscriber is in breach, Entelo may suspend access to the Service by Subscriber and any or all Users during such notice period.
7.4 Effect of Termination or Expiration. Upon Subscriber’s request during the 30 days immediately following the termination or expiration of this Agreement, Entelo will enable Subscriber to export Subscriber Data from the Service. At any time following such 30-day period, Entelo may irrevocably delete any and all information associated with Subscriber’s account, including Subscriber Data.
7.5 Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Subscriber to pay Subscription Fees or other charges payable to Entelo pursuant to this Agreement, and (b) Sections 1, 1, 6, 7.5, and 8 through 12.
- INTELLECTUAL PROPERTY.
8.1 No Transfer of Intellectual Property. Except as expressly set forth in this Agreement, nothing in this Agreement grants any license to, or transfers any right, title or interest in or to, the Service, Subscriber Data, the Confidential Information of either party, or any patents, copyrights, trade secrets, logos, trademarks, trade names or service marks of either party, whether by implication, estoppel, or otherwise.
8.2 License to Subscriber Data. Subscriber grants Entelo a non-exclusive, non-transferable (except as set forth in Section 6), worldwide, fully-paid, royalty-free license during the Term to use, copy, distribute, modify for transmission and display, publicly perform, and publicly display Subscriber Data solely for the purpose of providing the Service to Subscriber and Users.
8.3 License to Browser Extensions. Entelo grants Subscriber a non-exclusive, non-transferable (except as set forth in Section 6 below), non-sublicensable, worldwide, fully-paid, royalty-free license during the Term to download, copy, and use browser extensions provided by Entelo as part of the Service, for Subscriber’s internal business purposes only.
8.4 Logo Usage. Entelo may use Subscriber’s name and logo in listings of Entelo’s customers on the website located at www.entelo.com and in other public statements or disclosures for the purposes of marketing the Service; provided Subscriber may require Entelo to cease or modify any use of Subscriber’s name or logo that is misleading or tends to dilute Subscriber’s brand.
- REPRESENTATIONS; DISCLAIMER OF WARRANTIES.
9.1 Authority. Subscriber represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself; (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; (d) it has not previously been suspended or removed from the Service; and (e) the person signing this Agreement on its behalf is authorized to do so. Further, THE INDIVIDUAL EXECUTING THIS AGREEMENT ON SUBSCRIBER’S BEHALF REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUBSCRIBER TO THIS AGREEMENT.
9.2 Data Accuracy. Some features of the Service operate by collecting, searching and organizing data publicly available on the Internet, which may not be accurate or complete, while other features of the Service operate by applying analytical tools to Subscriber Data. Entelo is not responsible or liable for the accuracy of any such data, of any Subscriber Data, or the results of the Service’s analysis of either. Subscriber assumes sole responsibility for Subscriber’s use of all such information.
9.3 Risk of Exposure. No security measure is perfect or impenetrable, and hosting data online involves risks of loss, corruption, unexpected unavailability, and unauthorized disclosure or exposure of such data. In accessing and using the Service, Subscriber assumes such risks.
9.4 Warranty Disclaimers. SUBSCRIBER ACCEPTS THE SERVICE “AS IS,” AND ENTELO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ENTELO DOES NOT WARRANT THAT THE SERVICE OR THE INFORMATION OBTAINED THROUGH OR STORED ON THE SERVICE IS ACCURATE, CURRENT, FREE OF ERRORS OR OMISSIONS, SECURE, RELIABLE, OR ACCESSIBLE AT ANY PARTICULAR TIME.
10.1 Indemnification by Subscriber. Subscriber shall defend, indemnify, and hold harmless Entelo against any third party claim, suit, or proceeding (including resulting liabilities, damages and/or costs (such as, but not limited to, reasonable attorneys’ fees) paid to third parties in connection with (collectively, “Losses”)) arising out of or related to Subscriber’s alleged or actual use of the Service, including without limitation: (a) claims by Users, (b) claims by Subscriber’s job applicants or potential applicants; (c) claims arising from the Subscriber Data, including without limitation claims that the Subscriber Data infringes, violates, or misappropriates any copyright, trademark, trade secret, privacy, intellectual property or confidentiality right, or harasses or defames any person; (d) claims that use of the Service through Subscriber’s account harasses, defames, or defrauds any third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; and (e) claims related to Subscriber’s hiring practices or decisions.
10.2 Indemnification by Entelo. Entelo shall defend, indemnify, and hold harmless Subscriber against any third party claim, suit or proceeding (including Losses) to the extent arising out of (a) gross negligence or willful misconduct of Entelo, (b) use of the Subscriber Data by Entelo that is not in accordance with this Agreement, or (c) a finding that Subscriber’s use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights. Entelo’s indemnity obligation does not extend to any claims arising out of or related to (i) a combination of the Service with software not provided by Entelo, or (ii) Subscriber’s use of the Service in breach of this Agreement. In the event of any such infringement claim, Entelo may, at its option: (i) obtain a license to permit Subscriber the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement by providing notice to Subscriber, and provide Subscriber with a refund of any prepaid, unearned Fees (prorated on a daily basis for the then-current billing period).
10.3 Exclusions. Each party’s indemnity obligations as set forth in this Section 10 will not extend to any claim, suit, or proceeding for which (a) the indemnified party fails to promptly notify the indemnifying party of the claim, (b) the indemnified party fails to promptly give the indemnifying party sole control over the defense and settlement of the claim, provided that such indemnifying party may not agree without the indemnified party’s consent (not to be unreasonably withheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of the indemnified party, or (c) the indemnified party fails to promptly provide the indemnifying party reasonable cooperation in such defense or settlement.
10.4 Litigation. Entelo reserves the right, at its own expense and on 5 days written notice, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, and in such case, Subscriber agrees to cooperate with Entelo’s defense of such claim.
- LIMITATION OF LIABILITY.
11.1 No Consequential Damages. EXCEPT FOR BREACH OF SECTION 6 (CONFIDENTIAL INFORMATION) OR 8 (INTELLECTUAL PROPERTY), OR OBLIGATIONS ARISING UNDER SECTION 10 (INDEMNIFICATION), NEITHER PARTY NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, PROVIDERS, OR SPONSORS, NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, OR OTHER REPRESENTATIVES, SHALL BE LIABLE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE), FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.2 Dollar Cap. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR EXCEPT FOR BREACHES OF SECTIONS 6 (CONFIDENTIAL INFORMATION) OR 8 (INTELLECTUAL PROPERTY), OR OBLIGATIONS ARISING UNDER SECTION 10 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY FOR ANY MATTERS ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE), EXCEED THE FEES PAID (OR PAYABLE IN THE CASE OF SUBSCRIBER’S BREACH) BY SUBSCRIBER TO ENTELO FOR THE SERVICE IN RESPECT OF THE 12-MONTH PERIOD PRECEDING THE EVENTS OR CIRCUMSTANCES GIVING RISE TO THE CLAIM.
11.3 Application. THE LIMITATIONS AND EXCLUSIONS OF THIS ARTICLE 11 APPLY EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS ARTICLE 11, THE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER SUCH LAW.
- GENERAL PROVISIONS.
12.1 Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. Subscriber and Entelo agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts.
12.2.1 Changes to the Service. Entelo continually strives to improve its products and services, and reserves the right to improve or modify the Service and its features in any manner and at any time, including during the Term, at its sole discretion, provided however that such modifications will not materially reduce the functionality of the Service to Subscriber.
12.2.2 Changes to this Agreement. Entelo may amend the terms of this Agreement at any time, including without limitation the availability of the Service or any feature thereof (notwithstanding the provisions of Section 2.1). In the event that a change to this Agreement materially modifies your rights or obligations, (i) Entelo will make commercially reasonable efforts to notify Subscriber of the change, including via email or presentation of a pop-up window or other notification to Subscriber’s Users through the Service upon login, and (ii) you may terminate this Agreement upon providing notice to Entelo, in which case Entelo shall refund you any prepaid and unearned Subscription Fees (prorated on a daily basis for the then-current billing period). Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (a) continued use of the Service with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Subscription Order and Agreement in effect at the time the dispute arose.
12.2.4 Written Amendments. Except as stated in this Section 2, this Agreement may not be amended other than by a written instrument executed by authorized representatives of each party.
12.3 Entire Agreement. This Agreement, together with the Subscription Order and any other agreements expressly incorporated by reference, constitutes the entire and exclusive understanding and agreement between Subscriber and Entelo regarding Subscriber’s use of and access to the Service and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof.
12.4 Waiver. A party’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default.
12.5 Interpretation. Use of paragraph headers in the Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of the Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
12.6 Assignment. Subscriber may not assign this Agreement without Entelo’s express written consent, except to Subscriber’s successor by way of merger, acquisition, reorganization, or sale of stock or assets. Entelo may freely assign this agreement.
12.7 Notices and Contact Information. Except as otherwise set forth in Sections 3 and 12.2, each party will send notices made pursuant to this Agreement in writing, by postal delivery or a reputable international courier service, in either case with all postage and delivery fees pre-paid and a delivery confirmation required, to the address provided for such party on an applicable Subscription Order, or to such updated address as the party provides by notice in accordance with this section. Notice will be deemed given when actually received by the other party, or when delivery is refused. Subscriber questions or communications regarding Entelo, the Service, or the Agreement can be sent to email@example.com but will not serve as notice under this Agreement.
12.8 Independent Contractors. The relationship between the parties is that of independent contractors. Neither party is or will represent itself as the agent of the other.
12.9 Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party’s reasonable control (collectively, “Force Majeure”), no delay, failure, or default, other than Subscriber’s failure to make payments when due, will constitute a breach of this Agreement. The time for performance shall be extended for a period equal to the duration of the Force Majeure event. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance.
12.10 Injunctions. Each party agrees that breach of the provisions of Sections 1, 6.2 and 6.3 would cause the injured irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, the injured party will be entitled to injunctive relief against such breach or threatened breach, without the necessity of proving actual damages or posting a bond or other security. This Section 12.10 shall not be taken to limit either party’s right to injunctive relief related to breach of a section of this Agreement not listed in this Section.
12.11 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument.