Use of the Services
- Limitations. Subscriber agrees that it will not (and will not permit any third party to):
- Subject to Section 2(b) of the Recruit Socially Master Services Agreement, redistribute, disseminate or otherwise make available for any purpose any Confidential Information of Recruit Socially;
- Modify, translate, adapt, create derivative works from, copy, disassemble or decompile the Site or Platform, or any ideas, features, functions or graphics thereof, or any portion thereof, or create or attempt to create, by reverse engineering or otherwise, the source code or a competitive product or service from any object code supplied hereunder;
- Rent, lease, loan, sell, sublicense, transfer, publish, display, distribute, disclose or use the Site, Platform, or Account, or any portion thereof, in a service bureau, time-sharing or outsourcing service or otherwise use the Site, Platform or Account on behalf of third parties;
- Export, import or re-export the Site (or any part thereof) in violation of any applicable law, rule or regulation of any jurisdiction;
- Obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Site through any means, including through means not intentionally made publicly available or provided for through the Site;
- Engage in spidering, “screen scraping,” “database scraping,” harvesting of pricing or other information, or any other automatic or unauthorized means of accessing, logging-in or registering on the Site, or obtaining lists of users or other information from or through the Site, including, without limitation, any information residing on any server or database connected to the Site;
- Use the Site or Platform or their features and services in any manner that could interrupt, damage, disable, overburden or impair the Site or Platform or interfere with any other party’s use of the Site or Platform, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests;
- Impersonate any person or entity or misrepresent its affiliation with any other person or entity;
- Use the Platform to, or in any other manner, violate, plagiarize or infringe the rights of third parties, including without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or rights of publicity or any other proprietary or legal right;
- Upload, post, add, publish, distribute or otherwise transmit to, on, through or in connection with the Site any content or other information or material which constitutes, contains or disseminates a virus, spyware, or other harmful component, or which contains any embedded links, advertising, chain letters or pyramid schemes of any kind, or which violates, plagiarizes or infringes the rights of third parties;
- Interfere with any Job Opportunities of third parties made available through the Platform; or
- Share Account information (including, without limitation, login credentials) with any individual who is not an Authorized User.
- Limitations. Subscriber agrees that it will not (and will not permit any third party to):
- Compliance with Laws. Subscriber shall not discriminate against any Candidate and Subscriber shall comply with all applicable laws, rules, regulations and ordinances with respect to its recruitment, hiring and employment practices.
- Exceptions. Confidential Information will not include information that
- was in the public domain at or subsequent to the time it was communicated to the receiving party by the disclosing party through no fault of the recipient;
- was rightfully in receiving party’s possession free of any obligation of confidence at or subsequent to the time it was communicate to the receiving party by the disclosing party;
- was developed by employees or agents of the receiving party independently of and without reference to any information communicated to the receiving party by the disclosing party;
- was communicated by the disclosing party to an unaffiliated third party free of any obligation of confidence. The foregoing confidentiality obligations shall not apply to a disclosure of Confidential Information if such disclosure:
- was in response to a valid order by a court or other governmental body, provided that the receiving party gives the disclosing party an opportunity to obtain a protective order;
- was otherwise required by law; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure. The parties further agree that in the event of any actual or threatened breach of the provisions of Section 4 of the Client Terms and Conditions, the non-breaching party shall be entitled (in addition to any and all other rights and remedies at law or in equity for damages or otherwise, which rights and remedies are and shall be cumulative) to specific performance, a temporary restraining order, or an injunction to prevent such breach or contemplated breach.
- Candidate Data. Subscriber acknowledges that each Candidate’s identity will be treated as Confidential Information of Recruit Socially, and that Subscriber may only use the Candidate Data to evaluate such Candidate’s employment candidacy and contact such Candidate for the applicable Job Opportunity.
Subscriber acknowledges and agrees that, as between Recruit Socially and Subscriber, Recruit Socially owns the Site, Platform (including any algorithms associated therewith), Data and know-how, Candidate Data, Recruit Socially Data, Advisor Feedback any documentation related to any of the foregoing, the Recruit Socially Marks and all Intellectual Property Rights therein (the “Recruit Socially Materials”). Recruit Socially acknowledges and agrees that, as between Recruit Socially and Subscriber, Subscriber owns Subscriber-Submitted Data (but excluding those templates or other materials provided by Recruit Socially through which Subscriber submitted such information), Subscriber Marks and all Intellectual Property Rights therein (the “Subscriber Materials”) Each party acknowledges that its use of the other party’s Materials will not create any right, title or interest in or to such Materials. In the event that, by operation of law or otherwise, it is determined that either party has acquired any right, title or interest in or to the other party’s Materials, such acquiring party hereby agrees to transfer and assign, and hereby does transfer and assign, such acquired right, title and interest in or to such other party’s Materials and all Intellectual Property Rights thereto to such other party and agrees to take all other steps necessary to confirm, document or otherwise effectuate such transfer and assignment.
Representations and Warranties.
Subscriber represents and warrants that
- all information provided to Recruit Socially in relation to the Recruit Socially Master Services Agreement including with respect to any Job Opportunity is true and current;
- it will at all times comply with all applicable laws, rules, regulations and ordinances, including, without limitation, those relating to privacy and data security of personal information;
- it will maintain levels of security consistent with industry standards, but in no event less than commercially reasonable levels of security, and it will implement commercially reasonable industry standards designed to prevent external breaches of security as well as the loss, misuse or unintended distribution of Candidate Data.
Subscriber shall, at its own expense, indemnify, defend and hold harmless Recruit Socially and its directors, officers, shareholders, employees, service providers and agents, from and against any action, damages, suits, claims, liabilities, costs and expenses (including reasonable attorneys’ fees) based on a claim arising from or relating to
- a breach by Subscriber of any of its obligations, representations, warranties or covenants contained in the Recruit Socially Master Services Agreement and Client Terms and Conditions,
- Subscriber’s use of the Site or Platform or any other part, feature or tool of or made available through or in connection with the Site or Platform, and/or
- Subscriber’s business, including but not limited to the acts or omissions of Subscriber with respect to any third party (including, without limitation, Candidates). Recruit Socially shall have the exclusive right to control such defense. In no event shall Subscriber settle any such claim, lawsuit or proceeding without Recruit Socially’s prior written approval.
Recruit Socially may suspend its provision of the Services and/or Subscriber’s ability to access the Account or the Platform, and Recruit Socially shall use good faith efforts to provide Subscriber with reasonable notice prior to such suspension, if Recruit Socially reasonably believes that:
- Subscriber has materially breached the Recruit Socially Master Services Agreement and the Client Terms and Conditions;
- Subscriber’s acts or omissions under the Recruit Socially Master Services Agreement and this Terms and Conditions are likely to subject Recruit Socially to material liability,
- the security of the Platform is at risk,
- Subscriber is not providing competitive Job Opportunities that contribute to the overall utility of Platform or Candidate experience. Notwithstanding the foregoing, in the event of a suspension by Recruit Socially under subsection(d), Subscriber shall have thirty (30) days after the date of notice from Recruit Socially to remedy such deficiency, and if Subscriber fails to remedy such deficiency to Recruit Socially’s reasonably satisfaction, Recruit Socially shall have the right to suspend in accordance with this Section 8 until Recruit Socially determines such deficiency has been remedied by Subscriber. If Recruit Socially elects to exercise its rights under this Section 8,
- except for suspensions by Recruit Socially under the foregoing subsections (c) or (d), Subscriber acknowledges that it shall not be entitled to any reduction in Fees resulting from the duration of any suspension,
- Recruit Socially agrees to work with Subscriber in good faith to restore Subscriber’s access to the Platform and/or Account as soon as is reasonably practicable.
THE SITE AND PLATFORM ARE PROVIDED “AS-IS” AND WITH ALL FAULTS AND ERRORS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RECRUIT SOCIALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY OF INFORMATION, DATA, SECURITY, DATA PROCESSING SERVICES, DATA OR CONTENT MAINTENANCE OR STORAGE, UPTIME OR UNINTERRUPTED ACCESS, OR ANY WARRANTY OF ACCURACY, CORRECTNESS, PRECISION, TIMELINESS, THOROUGHNESS, COMPLETENESS, USE OR APPLICATION, ADEQUACY AND SUITABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT. RECRUIT SOCIALLY DOES NOT WARRANT THAT CONTENT ON THE SITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. RECRUIT SOCIALLY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, SUBSCRIBER’S COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF SUBSCRIBER’S ACCESS TO OR USE OF THE SITE OR PLATFORM. RECRUIT SOCIALLY IS NOT RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT SUBSCRIBER’S USE OF THE SITE OR PLATFORM.
(a) No Endorsement. Recruit Socially does not endorse or support any Candidate, and Recruit Socially expressly disclaims any and all liability in connection with Candidates who are included in any Candidate Data provided to Subscriber. Recruit Socially has no control over, and does not warrant or guarantee in any manner, the veracity of any Candidate Data, or the quality of any Candidate. For the avoidance of doubt, Recruit Socially serves as a third party that seeks to bring together employers and prospective employees, and as such, Subscriber acknowledges that the Service may not meet Subscriber’s expectations and that
- there may be no Candidates who satisfy the criteria set by Subscriber with respect to any particular Job Opportunity,
- a Candidate who otherwise satisfies the criteria in a Job Opportunity may not otherwise satisfy qualities Subscriber seeks in an employee,
- Subscriber bears the entire risk of any employment decisions with respect to a Candidate.
Limitation of Liability
IN NO EVENT SHALL RECRUIT SOCIALLY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SITE, THE PLATFORM OR ANY OTHER MATERIALS, SUBSCRIBER’S PROVISION OF INFORMATION VIA THE SITE, LOST BUSINESS OR LOST SALES, EVEN IF RECRUIT SOCIALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL RECRUIT SOCIALLY’S AGGREGATE LIABILITY TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES ARISING HEREUNDER EXCEED ONE HALF OF THE TOTAL VALUE OF AMOUNTS PAID TO RECRUIT SOCIALLY UNDER THE RECRUIT SOCIALLY MASTER SERVICES AGREEMENT AND THESE TERMS AND CONDITIONS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH LIABILITY ARISES. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE MUTUAL AGREEMENTS MADE IN THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK, AND THAT THE PARTIES HERETO WOULD NOT HAVE ENTERED INTO THE RECRUIT SOCIALLY MASTER SERVICES AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.