Terms and Conditions

THIS MASTER SERVICES AGREEMENT (THE “MSA”) GOVERNS HIREBRAIN’S PROVISION OF SOFTWARE AND SERVICES, AND CUSTOMER’S USE THEREOF, AS SET FORTH IN AN APPLICABLE SERVICES AGREEMENT EXECUTED BETWEEN HIREBRAIN CORPORATION. (“HIREBRAIN”) AND THE ENTITY PURCHASING SOFTWARE AND SERVICES (“CUSTOMER”) (COLLECTIVELY, THE “PARTIES”). BY EXECUTING A SERVICES AGREEMENT THAT INCORPORATES THIS MSA BY REFERENCE, CUSTOMER AGREES TO THE TERMS OF THIS MSA. TOGETHER, THE MSA AND ANY APPLICABLE SERVICE AGREEMENTS, ADDENDUMS AND STATEMENTS OF WORK CONSTITUTE THE “AGREEMENT.” IF THE INDIVIDUAL SIGNING THE SERVICES AGREEMENT FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.

SCOPE OF AGREEMENT

This MSA governs HireBrain’s provision of HireBrain Services, as defined herein, pursuant to a relevant Service Agreement detailing the HireBrain Services purchased, each of which shall incorporate this MSA by reference. In order to be binding, a Service Agreement must be signed by both parties. 

At HireBrain, we believe that all agreements should be agreements between parties for the mutual benefit of both.  We believe that openness, transparency and collaboration lead to positive results.  We do our best to live by the real meaning of those words and foster relationships with our customers conducive to a productive environment.  Our goal with this MSA is to bring parties together to create positive value, healthy working relationships between people, and protect our respective organizations from undue risk in the process. 

DEFINITIONS

“Confidential Information” means any non-public or proprietary information or material relating to a Party, whether orally, in writing disclosed to the receiving Party, in electronic, tape, disk, or any other physical or visual form, by or on behalf of the disclosing Party, that is marked or designated as confidential or might reasonably be considered as confidential, including without limitation, all know-how, trade secrets, scientific, technical, statistical, strategic, financial or commercial information; Confidential Information does not include information that (i) is or becomes generally publicly available through no fault of the receiving Party, (ii) was known to the receiving Party, free of any confidentiality obligations, before its disclosure by the disclosing Party, (iii) becomes known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party, or (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information, as demonstrated by documents and other competent evidence in the receiving Party’s possession.

“Content” means any and all content, information, data, images, photos, video, sound, notes, and works of authorship, articles, or other materials;

“Customer” “you” or “your” means the entity entering the Agreement with HireBrain as identified in the Services Agreement;

“Customer Content” means all files, content (including audio, video, text, or images), and data (including Personal Data) belonging to or controlled by the Customer provided, imported or uploaded to the Platform by a Customer or Users or HireBrain on Customer’s behalf; 

“Effective Date” means Customer’s signature date on the Services Agreement;

“Feedback” means all comments and suggestions, whether written or oral, furnished by Customer or its Users to HireBrain in connection with the Services;

“Fees” means any and all fees that Customer has agreed to pay HireBrain for Services described in the Services Agreement and signed by both Parties;

“Force Majeure” means an event, or a series of related events, that is outside the reasonable control of the Party affected including failures of the internet or any public telecommunications network, virus or other malicious software attacks, disasters, explosions, fires, floods, riots, terrorist attacks and wars;

“HireBrain” “we”, “us” or “our” means HireBrain Corporation, and in some cases, employees or other authorized representatives of HireBrain Corporation;

“HireBrain Content” means any original content, data, information, training, or recommendations that are provided by HireBrain to Customers, Prospective Customers, and any other individuals or parties in any form (e.g. pictures, written words, live or recorded audio and video, animations) and by any means (e.g. our websites, landing pages, sales demonstrations, Services Agreements, emails, marketing materials, workshops and trainings);

“HireBrain Platform” “Platform” means the proprietary software located at https://learn.hirebrain.com/; the public website located at www.hirebrain.com and any other URLs owned or operated by HireBrain. This includes all intellectual property, proprietary content, proprietary technology (e.g. software, products, processes, algorithms, user interfaces, know-how, designs) and any other tangible or intangible technical material or information made available to Customer by HireBrain through the use of the Platform. 

“Hiring Managers” means a people manager who makes hiring decisions and hires employees who report to them.

“Hiring Authorities” means an employee who makes hiring decisions and hires employees who 

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or not registered, including: (a) all patent and patent applications; (b) trademarks, business names and logos (registered or not registered); (c) trade secrets; (d) copyrights; (e) proprietary and confidential information, ideas, inventions, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents; and (f) all other similar proprietary and confidential rights;

“Services Agreement” means the document evidencing the specific HireBrain Services that Customer is purchasing, including the Term and Fees mutually agreed upon by the Parties, and any additional addendums and/or Statements of Work for Services signed by the Parties;

“Party” means HireBrain or Customer, as applicable.

“Personal Data” means any information taken alone or in combination with other data which may be used to identify, directly or indirectly, a specific individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.

“Services” means the HireBrain Platform and hosted software; any consulting, training, implementation, or technical services provided by HireBrain to Customer ;and any additional Services outlined in in a mutually agreed upon Services Agreement; 

“Statement of Work” or “SOW” means a document specifying the details for the performance of specific  professional Services by HireBrain for Customer, that is part of an active Services Agreement and signed by both Parties;

“Seat(s)” means a user license, granted to a unique individual for their use.

“Term” means the Initial Term and any Renewal Terms  as defined in the Services Agreement. 

“Users” means a Customer, a Customer’s employees, contractors, consultants and representatives who are authorized by Customer and HireBrain for whom a unique username and password has been created under Customer’s HireBrain account to utilize the Services and who are provided with access to the Services so long as they are not a direct competitor of HireBrain.

USE OF SERVICES 

Right to Access. Subject to the terms of this Agreement, HireBrain grants Customer a limited, non-transferable, non-exclusive right to access and use HireBrain’s proprietary Platform. Customer is responsible for determining which of its employees, contractors and/or other authorized representatives (together, “Users”) shall get access to the Platform under the terms of this Agreement. The number of Seats purchased by a Customer will be defined in the Services Agreement, and unless otherwise agreed upon in writing by the Parties, HireBrain will not provision more User accounts than Seats purchased by the Customer. 

HireBrain will host and retain physical control over the Platform and Services, making our  applications available to Customer and Users only through a sufficient web browser (e.g., Internet Explorer 8 and above, Chrome, Safari & Firefox). HireBrain will not deliver or otherwise make available any copies of its applications or code related to the Platform, whether in object code or source code form.

Customer Responsibilities. To realize the full value of the Services offered by HireBrain , your participation and effort are needed. Resources that may be required from you include an executive sponsor, a project manager, and a technical resource (or equivalent). Participation by all Hiring Managers, Hiring Authorities, HR and/or Recruitment, is imperative to enjoy the full benefit of the Services. Responsibilities that may be required include setting high-level goals for the use of the Service; completing learning experiences (including in-person, webinar or pre-recorded), supporting rollout and adoption efforts to users, and monitoring success of the Services after launch.  

User Responsibilities. User certifies that he/she is legally permitted to use the Platform and Services and takes full responsibility for their use of the Services.  This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.

Users shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Platform and Services, including, without limitation, internet service providers, modems, hardware, and software, and long distance or local telephone service.  Users shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.

Modifications. HireBrain reserves the right to modify our Services from time to time, including by adding or deleting features and functions, in an effort to improve the experience for our Customers and Users. HireBrain may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. 

Iteration and Enhancement. HireBrain, in its sole discretion, may utilize Feedback (furnished by either Customer or Users)  in connection with the Services (provided HireBrain does not reference Customer). If you provide HireBrain with any suggestions for improvement, comments, or other feedback regarding the Services, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the feedback for any purpose.

RESTRICTIONS

Restrictions on Seats; Seat Transfers. No Seat may be shared by more than one User. HireBrain may track the usage of our Services and disallow use of more than the authorized number of Seats. Customer r may transfer a Seat from one User to another so long as the total number of Seats defined in the Services Agreement is not exceeded.. Customer will not permit any third party to access and/or use the Services, other than the Users authorized under the Agreement or except for application programming interface access granted to or by a third party preauthorized by HireBrain;  

Customer Restrictions. Customer shall have no right to sublicense any HireBrain Services or underlying intellectual property, and shall not have the right to distribute or communicate to any third party any HireBrain Content or provide access to our Services to build or create a derivative, competitive, or similar product or service, or copy any ideas, features, functions or graphics of the Services.  As between the parties, HireBrain shall own all title, ownership rights, and intellectual property rights in and to its Services, and any copies or portions thereof.

Customer is responsible for making commercially reasonable efforts to maintain the confidentiality of all Users’ usernames and passwords. Customer shall notify HireBrain promptly of any actual or suspected unauthorized use of User accounts, usernames or passwords.  HireBrain reserves the right to terminate any username and password which HireBrain reasonably determines may have been used by an unauthorized third-party or for an unlawful purpose. HireBrain shall notify Customer of any actual or suspected unauthorized use of User accounts, usernames, or passwords.  

User Restrictions. User shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives.  

User shall not rent, lease, loan, or sell access to the Services to any third party;  

User shall not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Services or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services. HireBrain reserves the right to bar any such activity.

User shall not attempt to gain unauthorized access to any portion or feature of the Services, or any other systems or networks connected to the Services or to any HireBrain server, or to any of the services offered on or through the Services, by hacking, password “mining”, or any other illegitimate means.

User shall not probe, scan or test the vulnerability of the Services or any network connected to the Services, nor breach the security or authentication measures on the Services or any network connected to the Services.

User shall not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or HireBrain’s systems or networks, or any systems or networks connected to the Services or to HireBrain.

User shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any transaction being conducted on the Services, or with any other person’s use of the Services.

User shall not introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Services,  

User shall not upload or Store any illegal content or content which violates applicable law, or material rights of third parties in the Services,  

User shall not use the Services or any Content for any purpose that is unlawful or prohibited by this Agreement.

CONTENT

HIREBRAIN CONTENT

HireBrain Content. Customer agrees that all content and materials (collectively, “HireBrain Content”) delivered via the Services or otherwise made available by HireBrain digitally, or verbally in a live setting (either via a webcast or in-person) are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.  Except as expressly authorized by HireBrain in writing, Customer and its Users  agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content.  Reproducing, copying or distributing any content, materials or design elements included in the Services is prohibited without the express prior written permission of HireBrain.

Proprietary Rights. This Agreement is a license agreement for HireBrain Services. It is not a sale, or assignment and transfer, of any software or any other work product created by HireBrain including its Platform and Services. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from one Party to another. HireBrain’s proprietary technology is the exclusive property of HireBrain or its suppliers. 

Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services or Platform, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to our proprietary technology.  All rights not expressly granted to Customer, are reserved to HireBrain. Because this is a license agreement, ownership of all work products, developments, inventions, technology or materials provided by HireBrain under this Agreement will be solely owned by HireBrain. Any know-how such as procedures, methodologies, processes used for the performance of the Services shall be, and remains, the sole ownership of HireBrain.

CUSTOMER CONTENT

Customer License Grant. Solely for the purpose of and to the extent necessary to provide the Services hereunder to Customer, Customer grants HireBrain a non-exclusive, worldwide, royalty-free and fully paid license to: (a) use, reformat, display, modify and create derivative works of the Customer Content (including, where applicable, sharing and providing Customer Content with employees and candidates); and (b) use Customer’s trademarks, service marks, and logos to provide the Services to Customer and the candidates in accordance with the Agreement (e.g. to post jobs that include Customer’s logo). Except as expressly stated in the Publicity section below or  otherwise agreed by the Parties, HireBrain may not use Customer’s trademarks, service marks, and logos for any other purpose. Customer retains all right, title and interest in and to the Customer Content and HireBrain acknowledges that it neither owns nor acquires any additional rights in and to Customer Content not expressly granted by this Agreement.

Customer Content Responsibility. Customer shall be responsible for and assumes the risk, responsibility and expense of: (i) any problems resulting from, the accuracy, quality, integrity, legality, reliability, and appropriateness of all such Customer Content;  (ii) HireBrain being compelled to be a witness in any proceeding to which HireBrain is not a party or if HireBrain receives a subpoena with respect to any proceeding to which HireBrain is not a party that are in any way related to Customer’s use of the Services.

Customer Data.HireBrain does not claim any ownership rights in any data, information or other materials that Customer and its Users provide through the course of delivery of the Services, including Exchanged Data (collectively, “Customer Data”). Nothing in this Agreement will be deemed to restrict any rights that you may have to access, use and exploit the Customer Data.

Customer Data Use. HireBrain shall use Customer Data solely to provide Services in accordance with this Agreement and to derive de-identified, aggregated data for use by HireBrain to improve its Services and derive statistics for the industry. HireBrain has implemented a comprehensive Information Security program governed by policies and  procedures to ensure the security and confidentiality of Customer Data, to protect against anticipated threats or hazards to the security or integrity of Customer Data, and to protect against unauthorized access to or use of Customer Data (both by HireBrain employees and by third parties). 

All facilities used to store, and process Customer Data under this Agreement will adhere to reasonable security standards no less protective than the security standards at facilities where HireBrain stores and processes its own information of a similar type. Further information about how HireBrain defines and handles all sensitive data and information is  described in the HireBrain Privacy Policy, found at www.HireBrain.com/privacy .

Aggregated Anonymous Data. Customer agrees that HireBrain may calculate aggregate, anonymized statistics about its Customers’ use of Services that are non-personally identifiable with respect to Customer  and/or any of its User and use those statistics (but not the underlying data) for purposes of HireBrain’s own sales, marketing, business development, product enhancement, or customer service initiatives. Notwithstanding the foregoing, HireBrain shall ensure that the statistics will not constitute nor include any personally identifiable data.

HireBrain may store and use certain data and metadata to create and improve algorithms, identify patterns, and improve HireBrain’s products and services. “Metadata” means data that we collect  in association with your use of our Services, including IP addresses, stored sessions, account credentials, and network metadata. For clarity, Metadata does not include d data that you enter into our Platform. You agree and consent to our collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata by HireBrain in order to administer, develop and improve the Services, and to monitor our performance and compliance with this Agreement.

CONFIDENTIAL INFORMATION

Protection of Confidential Information. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information of like kind, but in no event less than reasonable care. 

Confidential Information will include non-public information obtained during the delivery ofServices, including but not limited to:  business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 

The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party will disclose the terms of this Agreement or any Services Agreement to any third party other than its Affiliates and its legal counsel and accountants without the other Party’s prior written consent.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Non-disparagement.  During the Term and at all times thereafter, Customers and its Users  agree not to make any disclosures, issue any statements or otherwise cause to be disclosed any information which is designed, intended or might reasonably be anticipated to disparage HireBrain, its officers, directors, business, services, or personnel.

Publicity.  Customer  grants HireBrain the right to add your name and company logo to our customer list and website. To object to this use, please notify us in writing or by email.

TERM AND TERMINATION

Term and Renewal. Customer’s Initial Term will be specified in the Services Agreement, and, unless otherwise specified, theTerm will automatically renew for one year.

Notice of Non-Renewal. Unless otherwise specified in the Services Agreement, to prevent renewal of your subscription, Customer must provide written notice of non-renewal at least 90 days in advance of Term expiration

Early Cancellation or Termination for Cause. Either Party may terminate this Agreement for cause, as to any or all Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

HireBrain reserves the right to  terminate this Agreement for cause effective immediately  if we determine that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect HireBrain, our prospects or our customers.

This Agreement may not otherwise be terminated prior to the end of the Term.

SUSPENSION

Suspension for Prohibited Acts. HireBrain may suspend User access to any or all Services without notice for: (i) use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement,

(ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.

HireBrain may, without notice, review and delete any Customer Content or Data that we determine in good faith violate any terms in this Agreement, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Content or Data.

Suspension for Non-Payment. HireBrain will provide Customer with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend access to any or all of the Services ten (10) days after such notice. We will not suspend Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service is suspended for non-payment, we may charge a reactivation fee to reinstate the Service.

Suspension for Present Harm. HireBrain may, with electronic or telephonic notice to you, suspend all or any access to our Services, if we determine, in our sole discretion, that a Customer and/or its Users is presenting harm to our ability to offer and maintain our Platform and Services. Such events may include but are not limited to: 

(i) Customer/User is being subjected to denial of service attacks or other disruptive activity,

(ii) Customer/User is being used to engage in denial of service attacks or other disruptive activity,

(iii) Customer/User is creating a security vulnerability ,

(iv) Customer/User is consuming excessive bandwidth, or

(v) Customer/User is causing harm to us or others., We will try to limit the suspension to the affected portion of our Services and promptly resolve the issues causing the suspension of the Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

Suspension and Termination of Free Services. We may suspend, limit, or terminate any free Services  for any reason or no reason at any time without notice, including inactivity. 

Post Termination. Customers and Users will continue to be subject to this Agreement for as long as they have access to a HireBrain account.

Upon termination or expiration of this Agreement, Customer and its Users  will stop all use of the Platform and Services.  If we terminate this Agreement for cause, Customer shall promptly pay all unpaid fees due through the end of the Term. Fees are otherwise non-refundable.

FEES AND PAYMENT

Service Fees. The Service Fee will remain fixed during the Initial Term as set out in the Services Agreement, or as otherwise modified in subsequent Addendums signed by the Parties. 

Fee Adjustments at Renewal. Upon renewal, we may increase your fees up to our then- current list price. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either Party can choose to terminate at the end of your then-current Term by giving the notice required in the ‘Notice of Non-Renewal’ section above.

Payment by credit card. If Customer is paying by credit card, Customer authorizes us to charge your credit card or bank account for all fees payable during the then-current Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

Payment against invoice. If Customer is  paying by invoice, we will invoice you immediately upon the execution of a Services Agreement and any Renewals thereafter. . All amounts invoiced are payable within forty-five (45) days from the date of the invoice, unless otherwise specified in the Services Agreement.

Payment Information. Customer will provide current and accurate  contact information, billing information and credit card information (where applicable). All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance of Services delivered throughout the Term.

Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST.

Withholding Tax. If you are required to deduct or withhold any tax, you are required to notify us prior to going under contract via a Services Agreement.

Withholding tax.  If you are required to deduct or withhold any tax, you may deduct this amount from the applicable Service Fee due to the extent it is due and payable as assessed taxes required under laws that apply to you (the “Deduction Amount”).

You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.

WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND HIREBRAIN MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. HIREBRAIN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. HIREBRAIN DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS.

LIMITATION OF LIABILITY

In no event shall HireBrain, its officers, directors, employees, agents, vendors or suppliers be liable under contract, tort, strict liability, negligence or any other legal theory with respect to the service: (i) for any lost profits or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, even if foreseeable, (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) $100.00 (U.S.) (provided that, if Customer has paid fees to HireBrain, such amount will be equal to the fees paid by Customer to HireBrain during the six (6) month period immediately prior to the date the cause of actions accrues). 

In addition, HireBrain shall not be liable for any loss or liability resulting, directly or indirectly, from Customer’s or User’s inability to access or otherwise use the Services (including, without limitation, any delays or interruptions due to electronic or mechanical equipment failures, denial of service attacks, date data processing failures, telecommunications or Internet problems or utility failures).  THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Reasonableness. The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The Parties acknowledge that the Fees have been set and this Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

Independent Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by HireBrain to Customer and is an essential element of the basis of the bargain between the Parties.

Statute of Limitations. Any damage claims or claims in reimbursement of expenses regardless of the legal grounds, shall become statute-barred no later than one year (i) after the discovery of the circumstances giving rise to the claim or (ii) from the effective date of the termination or expiration of this Agreement.

INDEMNIFICATION

Customers and Users are  responsible for their activity in connection with HireBrain Platform and Services. Customers and Users will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of

(a) unauthorized or illegal use of the Services by you or your Affiliates,

(b) your or your Affiliates’ noncompliance with or breach of this Agreement,

(c) your or your Affiliates’ use of Third-Party Products, or

(d) the unauthorized use of Services by any other person using your User information.

We will notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

HireBrain will have no liability for an Infringement Claim if the actual or alleged infringement results from Customer’s breach of the Agreement, Customer’s modification, alteration or addition made to the Services or any use thereof, including any combination of HireBrainServices with other materials not provided or authorized by HireBrain, Customer’s failure to use any corrections or modifications made available by HireBrain that would not result in any material loss of functionality, or use of the Services in a manner or in connection with a product or data not contemplated by this Agreement. HireBrain also disclaims any liability for settlements entered into by Customer or costs incurred by Customer in relation to an Infringement Claim that are not pre-approved by HireBrain in writing.

Customer will indemnify, defend and hold HireBrain harmless from (i) any third party claim, action, suit or proceeding arising out of or resulting from HireBrain’s use of any Customer Data, as it was provided to HireBrain, in accordance with this Agreement; and (ii) any fines or penalties that may arise as a result of Customer’s breach of the export restrictions set forth in Export Regulations below.

Each Party’s indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of the applicable claim; (ii) the indemnifying Party will have sole control of the defense and all related settlement negotiations with respect to the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) the indemnified Party will reasonably cooperate to the extent necessary for the defense of such claim.

REPRESENTATIONS AND WARRANTIES

Mutual Warranties. Each Party represents and warrants that it (i) has legal rights and authority to enter into this Agreement and to perform the obligations herein, (ii) shall comply with all applicable laws and regulations (including any export laws and regulations and customs regulations) related to this Agreement.

HireBrain Warranties. HireBrain represents and warrants that it (i) has all rights to license the Services to Customer and it has and will maintain all necessary third-party licenses necessary for the performance of the Services, and (ii) during the Term of this Agreement, it will: (a) provide the Services substantially in accordance with the Agreement; and (b) implement and maintain backup, security and business continuity measures, in accordance with industry practices.

Customer Warranties. Customer represents and warrants that it (i) shall own all right, title and interest in and to all of the necessary Customer content, copyrights, and intellectual property required for it to comply with its obligations under this Agreement, and (ii) will not use the Services for any purpose that is unlawful, or prohibited by this Agreement.  

PROFESSIONAL SERVICES

Provision. Customer may request HireBrain provide additional Professional Services to assist with the implementation, training, and integration of Services, or other Professional Services or Consulting.  In these cases, the Professional Services will be described in an Addendum to the Services Agreement, or in a SOW. HireBrain shall perform the Professional Services in a manner consistent with industry standards applicable to the provision thereof. Customer understands that providing the Professional Services requires the good faith cooperation of Customer, and Customer shall collaborate and provide HireBrain with sufficient resources, materials and other information that is required to execute the respective Professional Services. Any delays solely caused by Customer or changes in project scope may result in additional Professional Services fees.  

Daily Rates. If applicable, Daily rates correspond to an eight (8) hour workday.

Acceptance; Rejection. Unless otherwise set forth in a Services Agreement or SOW, upon HireBrain completing activities described in the SOW, including delivery to Customer of any materials listed in the SOW, and Customer accepting such activities and materials, the Professional Services shall be deemed complete and accepted by Customer.

If: (i) HireBrain does not receive a response from Customer within two days of notifying Customer in writing that delivery is complete, the Professional Services will be deemed complete and accepted by Customer, or (ii) Customer is using the Services in a live environment, the Professional Services shall be deemed complete and accepted by Customer. To be effective, any objections by Customer must specifically describe HireBrain’s material failures, to comply with the SOW via a written notice to HireBrain and without unreasonable objections. In response to Customer’s material objections, HireBrain shall have the opportunity to revise and/or re-deliver the applicable Professional Services. Upon curing Customer’s material objections, the acceptance process in this Section shall repeat.  

MISCELLANEOUS 

Performance.  HireBrain shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond HireBrain’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

Personal Conduct.  The following is from our internal Code of Values and Conduct that is signed by every employee, contractor, and affiliate of HireBrain: 

“HireBrain values the creativity, energy and strength that results from a truly diverse and inclusive workplace. For this reason, it is vital that HireBrain people embrace each other’s differences and treat one another with respect. HireBrain will not tolerate unlawful and/or inappropriate discrimination or harassment of any kind. Engaging in such conduct would deteriorate the collaborative nature of the HireBrain workplace, and it’s wrong. At HireBrain, we know that the benefits of a diverse workforce are only fully realized when inclusion becomes a habit at every level.  We are committed to an environment where everyone can thrive and bring their authentic selves to work with full cooperation, and without judgment.”  

While using our Platform and Services, and in your interactions with us, you can expect to be treated accordingly.

Human Rights.  We believe in essential human rights for all people, as defined by the United Nations Universal Declaration of Human Rights (1948). 

Duty to Notify.  This agreement was created in good faith, and as such all parties agree to notify HireBrain if any provision included is unlawful or unethical, or if there is anything missing that would enhance or improve the letter and spirit of this agreement.

All rights not expressly granted hereunder are reserved to HireBrain.

Governing Law and Jurisdiction. The Agreement is governed by and construed under the laws of the State of North Carolina without reference to conflict of laws principles. All disputes arising out of or related to the Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Mecklenburg County, and the Parties agree and submit to the exclusive jurisdiction and venue of these courts.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The Parties agree to submit to the exclusive jurisdiction of the courts of the State of North Carolina to resolve any legal matter arising from this Agreement.

Modification and Waiver. No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies. The Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties.

Interpretation. Unless otherwise specified herein: (i) the word “including” means “including but not limited to”; and (ii) any reference to days will mean calendar days. For the avoidance of doubt the word “ensure” as used in this Agreement does not constitute a guarantee, but (only) a contractual obligation.

Survival. The sections “Fees and Payment”, “Representations and Warranties”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and any intellectual property related provisions shall survive any termination or expiration of this Agreement.  

Assignment. Neither Party may assign the Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other Party.  Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.  However, either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, without consent of the other party provided that the assignee is not a competitor of the other Party. This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect.

Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by any Force Majeure event, provided that such Party (i) did not cause such situation by its own negligent acts or omissions, and (ii) exercised all due diligence and used commercially reasonable efforts to avoid such situation and mitigate the impact.

Amendments. Any modification or variation of this Agreement shall be effective as long as it is in writing, refers specifically to this Agreement and is duly executed by each of the Parties.

US Government Rights. To the extent applicable, HireBrain provides the HireBrain Platform Services, including related software and technology, for the Federal Government of the United States end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with HireBrain to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

Export Regulations. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Customer covenants that it will not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from HireBrain under the Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.

Open Source Software. The Service provided by HireBrain may include certain free and/or open source software (components) (“Open Source Software”). The Open Source Software is governed by the respective/relevant Open Source Software terms. HireBrain shall not use Open Source Software in any way that imposes obligations on Customers other than as stated in this Agreement. HireBrain shall comply with all relevant Open Source Software terms and conditions. 

Future Functionality.  Customer acknowledges and confirms that your purchase of Services outlined in this Agreement are not contingent upon the delivery of any future functionality or features, nor reliant upon any oral or written public comments made by us regarding potential future functionality or features.

Relationship. Each Party’s relationship to the other Party is that of an independent entity or independent contractor.  Neither Party is an agent or partner of the other under this Agreement.  Neither Party will have, nor will it represent to any third party that it has, any authority to act on behalf of the other Party. 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 HireBrain in any respect whatsoever.

No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement, including, without limitation, Authorized Users.

Counterparts. The Agreement (or a component) may be executed in counterparts, which taken together will form one legal instrument.

Anti-Corruption and Compliance. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of HireBrain’s employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify HireBrain of such violation.

Entire Agreement. This Agreement, together with any applicable Services Agreements, embodies the entire understanding of the Parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both Parties. Both parties agree that, to the extent that the parties are already party to a validly existing contract as at the date of this Agreement (“Pre-Existing Agreement”), then the terms of the Pre-Existing Agreement shall take precedence over this Agreement in the event of a conflict. However, if no Pre-Existing Agreement exists, then both parties agree that this Agreement constitutes 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 modifications must be in a writing signed by both parties, except as otherwise provided herein.

Modification.  HireBrain reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this MSA at any time.  It is the Customer’s responsibility to check this Agreement periodically for changes.  Customer and Users continued use of HireBrain Services following the posting of any changes to this MSA constitutes acceptance of those changes.

Notices. Any notice given under the Agreement must be in writing and delivered by tracked delivery and/or by email.   All notices will be deemed to have been delivered the second business day after sending by email.  Any notice provided to Customer pursuant to this Agreement shall be sent to Customer’s address mentioned in the Services Agreement. Any notice provided to HireBrain pursuant to this Agreement shall be sent to HireBrain 14316 Reese Blvd West, Ste B PMB 5110, Huntersville, NC 28078, Attn: Chief Executive Officer. Customer is responsible for updating Customer’s data to provide HireBrain with Customer’s authorized representative contact information, including most current mailing address and email address.