This Software-as-a-Service Agreement is between Jobscan Corporation, a Delaware corporation with offices at 89 Yesler Way #203, Seattle WA 98104 (“Jobscan”) and the entity identified as customer on an Order Form (“Customer”). This Agreement is effective as of the date the last party signs the Order Form (“Effective Date”).
Capitalized terms used herein shall have the meanings set forth in this section or in the body of the Agreement.
“Agreement” means, collectively, this Software-as-a-Service Agreement, the SaaS Subscription Order Form, and all other terms and conditions incorporated by the foregoing.
“Customer Content” means all data or information that Customer submits to or through the Service.
“Order Form” means a SaaS Subscription Order Form executed by Customer and Jobscan, including the proposal attached thereto.
“Services” means Jobscan’s proprietary software-as-a-service, accessible through the internet, as more fully described in the Order Form.
“Subscription Term” means the period of Customer’s subscription to the Services as specified in the Order Form, unless terminated earlier pursuant to Section 7.
- SERVICES AND SUPPORT
- Subject to the terms and conditions of this Agreement, Jobscan will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at Jobscan’s sole discretion, for any purpose deemed appropriate by Jobscan. Jobscan will use reasonable efforts to give Customer prior written notice of any such modification.
- Jobscan will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Jobscan reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Jobscan.
- Subject to the terms hereof, Jobscan will provide reasonable support to Customer for the Services during Jobscan’s normal business hours (i.e. 10am-6pm Pacific Time, Monday to Friday, excluding holidays).
- Customer may occasionally request additional or amended services outside of the terms of this Agreement, including requests for additional features and/or country-specific support (collectively, “Additional Projects”). Upon receipt of such a request, Jobscan will provide a detailed scope of work and cost estimate for any Additional Project requested by Customer, and the parties will work in good faith to agree on the scope and corresponding terms and conditions (including related fees) to be set forth in a written statement of work. Jobscan will have no obligation to provide services for Additional Projects and Customer will have no obligation to pay for Additional Projects unless both parties have signed a statement of work. Customer understands that a separate invoice(s) will be generated for such work.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, and will not permit or assist any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (b) modify, translate, or create derivative works based on the Services or Software; (c) use the Services or Software for timesharing or service bureau purposes; (d) access or use the Services or Software for the purpose of developing a competing product or service, building a product or service using similar functions, features, or graphics, or conducting benchmarking tests or competitive analysis; or (e) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation).
- Customer will also cooperate with Jobscan in establishing a password or other procedures for verifying that only designated employees or contractors of Customer have access to any administrative functions of the Services.
- Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Jobscan.
- Although Jobscan has no obligation to monitor Customer Content, Jobscan may do so and may remove any Customer Content it believes may be (or is alleged to be) in violation of applicable law or the rights, including the intellectual property rights, of any third party.
- Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent.
- The Services may enable you to engage with and procure certain third-party services, including third-party job listing websites, third-party applications and widgets, and third-party licensed content (collectively, “Third-Party Services”). You acknowledge and agree that regardless of the way such Third-Party Services may be made accessible to you through the Services, including without limitation via a link to a third-party website, Jobscan is not responsible for the content, terms and conditions, privacy policies, or practices of any third-party websites or any Third-Party Services, including your legal right to use such websites or services. We do not endorse any Third-Party Services, and your ability to obtain Third-Party Services through the Services does not imply any indorsement of the Third-Party Services by Jobscan. Jobscan will have no liability to you for any Third-Party Services. By using the Services, you expressly release Jobscan from any and all liability arising from your use of any third-party website or any Third-Party Services. We encourage you to review the terms and conditions, privacy policies and other governing documents that govern any other website you visit or any Third-Party Services you use.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
- The Receiving Party agrees: (i) not to divulge to any third person any Proprietary Information of Disclosing Party, (ii) to give access to the Proprietary Information of Disclosing Party solely to those employees, contractors and agents of Receiving Party with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information of Disclosing Party that the Receiving Party takes with its own proprietary information, but in no event will a Receiving Party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party in violation of this Agreement, or (b) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to Receiving Party by a third party, or (d) was independently developed by Receiving Party without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information of Disclosing Party pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Jobscan may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
- Customer acknowledges that Jobscan does not wish to receive any Proprietary Information from Customer that is not necessary for Jobscan to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Jobscan may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
- Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to a party’s legal, tax or accounting advisors or potential investors or acquirors.
- From time to time, Jobscan may expressly request submissions of ideas or improvements through promotions, surveys, or otherwise (“Invited Submissions”). Where this is the case, please carefully read any specific rules or other terms and conditions which appear elsewhere on Jobscan to govern those submissions (“Additional Terms”), as they will affect your legal rights. If no Additional Terms govern those submissions, then the terms of this Agreement will apply in full to any Invited Submissions you make. IN ANY EVENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ANY MATERIAL YOU SEND TO JOBSCAN IN RESPONSE TO INVITED SUBMISSIONS WILL NOT BE TREATED AS CONFIDENTIAL. Regardless of any industry custom or practice, we will not pay you for the use of any content or submissions that you submit to Jobscan in response to Invited Submissions unless expressly stated in any Additional Terms.
- INTELLECTUAL PROPERTY RIGHTS
- SERVICES AND SUPPORT
Except as expressly set forth herein, Jobscan alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software (excluding any Customer Content). Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to access and use the Services for its internal purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
Jobscan will obtain and process Customer Content only as necessary to perform its obligations under this Agreement. Customer represents and warrants that Customer is the owner of all right, title and interest, including all intellectual property rights, in and to all Customer Content submitted to or through the Services, or has obtained from such third parties all rights, license and permissions necessary to submit the Customer Content to or through the Services and to permit Jobscan to obtain and process the Customer Content as set forth in this Agreement. If Jobscan receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or violate the rights of a third party (a “Claim”), Jobscan may (but is not required to) delete or disable access to such Customer Content. Customer will indemnify, defend (at Jobscan’s request) and hold harmless Jobscan from all claims, actions, liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. Customer will cooperate as reasonably required by Jobscan in the defense of any Claim. Jobscan reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Customer, and Customer will not in any event settle any Claim without Jobscan’s prior written consent.
- PAYMENT OF FEES
- Customer will pay Jobscan the applicable fees as set forth on the Order Form (the “Fees”). To the extent applicable, Customer will pay Jobscan for additional services, such as integration fees or other consulting fees as set forth on the Order Form. All payments will be made in accordance with the payment terms set forth on the Order Form. If not otherwise specified on the Order Form, payments will be due within ten (10) days of Customer’s receipt of invoice.
- All amounts payable by Customer that are not paid when due are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Jobscan’s net income) unless Customer has provided Jobscan with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof. To the extent that the reimbursement of any travel-related expenses (e.g., airfare, lodging and food) is authorized in an Order Form, Customer shall reimburse Jobscan for all such expenses. Except as expressly set forth on an Order Form, Jobscan shall be responsible for all expenses incurred by Jobscan under this Agreement.
- TERM; TERMINATION
- Subject to earlier termination as provided below, this Agreement shall be effective as of the effective date set forth on the Order Form and shall remain in effect for the duration of the Subscription Term.
- In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Subscription Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, effective upon the other party’s receipt of written notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions on use of the Services, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
- WARRANTY DISCLAIMER
- PAYMENT OF FEES
EXCEPT AS SET FORTH HEREIN, AND SUBJECT TO APPLICABLE LAW, THE SERVICES AND JOBSCAN CONFIDENTIAL INFORMATION AND INFORMATION AND MATERIALS PROVIDED BY JOBSCAN IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. JOBSCAN (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL JOBSCAN (OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF JOBSCAN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT FOR LIABILITY ARISING FROM JOBSCAN’S INDEMNIFICATION OBLIGATIONS HEREUNDER,THE TOTAL LIABILITY OF JOBSCAN, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO JOBSCAN HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.
JOBSCAN MAKES NO REPRESENTATION THAT THE SERVICES OR THE MATERIALS OR OTHER CONTENT PROVIDED THROUGH THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE OUTSIDE OF THE UNITED STATES. IF YOU CHOOSE TO ACCESS THE SERVICES FROM LOCATIONS OUTSIDE THE UNITED STATES, YOU DO SO ON YOUR OWN INITIATIVE AND AT YOUR OWN RISK. YOU ARE RESPONSIBLE FOR COMPLYING WITH ALL LAWS IN YOUR JURISDICTION, IF AND TO THE EXTENT SUCH LAWS ARE APPLICABLE TO YOU.
THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- By Jobscan. Jobscan shall indemnify, defend and hold harmless Customer from and against any loss, cost, damage or expense in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third Person (each a “Claim”) alleging that the Services as provided by Jobscan hereunder infringe any third party’s rights intellectual property rights, except to the extent the Claim: (a) relates to Customer Content or other materials provided by or on behalf of Customer; (b) is subject to Customer’s indemnification obligations under Section 10.2. In the event of any actual Claim of infringement or if Jobscan has reason to believe that such a Claim may be brought, Jobscan may at its option and sole expense either obtain the rights necessary to cease or avoid the infringement, or make any modifications to the Services that are recommended by Jobscan’s counsel to avoid infringement of the third party’s rights, provided that if any such modification materially diminishes the functionality and value of the Services as a whole, Customer may within thirty (30) days following Jobscan’s implementation of such modification terminate this Agreement by notice to Jobscan and recover a refund of prepaid fees applicable to the period following the effective date of termination, if any. This Section 10.1 states Customer’s sole remedy and Jobscan’ entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any intellectual property rights of any third party by the Services.
- By Customer. Customer shall indemnify, defend and hold harmless Jobscan from and against any loss, cost, damage or expense in respect of any Claim that relates to: (a) Customer Content or other materials provided by or on behalf of Customer; (b) the use by Customer or its employees or contractors of the Services in breach of this Agreement or in violation of applicable law or third party rights; and (c) any dispute between Customer and any other user of the Jobscan.co website with whom Customer interacts.
- As a condition to the obligations of the indemnifying party under either of Sections 10.1 or 10.2 above, the indemnified party shall: (a) promptly notify the indemnifying party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying party of any liability or obligations hereunder except to the extent the indemnifying party has been prejudiced by such delay; (b) permit the indemnifying party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying party in investigating and defending such Claim, at the indemnifying party’s expense (provided that the indemnified party shall not be entitled to compensation for time spent providing such cooperation). The indemnified party shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.
- U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Jobscan are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- This Agreement is not assignable, transferable or sublicensable by Customer except with Jobscan’s prior written consent. Jobscan may transfer and assign this Agreement and any of its rights and obligations under this Agreement with written notice to Customer.
- Both parties agree that 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Jobscan in any respect whatsoever.
- In any action or proceeding to enforce rights under this Agreement, the substantially prevailing party will be entitled to recover its costs and attorneys’ fees.
- All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
- This Agreement will be governed by the laws of the State of Washington, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Seattle, Washington, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.
- Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Jobscan. Jobscan is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.