SUBSCRIPTION SERVICES AGREEMENT
TERMS AND CONDITIONS OF USE
1. Acceptance. Welcome to the Gray Peak, LLC complete hiring platform and our Subscription Services Agreement Terms and Conditions of Use (Terms and Conditions). These Terms and Conditions are effective September 1, 2020 and will apply to and be incorporated in each Subscription Services Agreement (Agreement) between Gray Peak, LLC (as Provider) and each customer (Customer). By executing and delivering an Agreement, each Customer will have agreed to these Terms and Conditions.
2. Definitions. The following terms have the following meanings when used in these Terms and
Conditions and the Agreement:
Authorized User means individual employees, agents and contractors of Customer who have a need to use the Services and are authorized and registered with Provider by Customer.
Customer Confidential Information means (i) any information disclosed by Customer to Provider during the term of the Agreement that at the time of disclosure was marked as "confidential" and (ii) the Customer Data.
Customer Data means all data uploaded to or stored on the Platform by Customer and its authorized users and data generated by the Platform as a result of the use of the Platform by Customer (but excluding analytics data relating to the use of the Platform and server log files).
Dispute means any controversy or claim arising out of, relating to or in connection with these Terms and Conditions or the Agreement.
Documentation means user guides, tutorial videos, training materials, technical documentation and systems requirements, and other material provided or made available to Customer regarding the use of the Platform as the same may be revised from time-to-time by Provider at its discretion.
Fees means the charges Customer must pay to Provider as specified in its Agreement.
Force Majeure Event means a cause or event beyond the reasonable control of the delayed party, including, without limitation, acts of God, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, network outage, insurrection, to the extent not occasioned by the fault or negligence of the delayed party.
Platform means a web-based platform of servers, software and related technology owned by Provider which is made available to Customer pursuant to the Agreement.
Services means the software-as-a-service enabling employers and staffing companies to post jobs, recruit applicants, track and manage applicants/candidates, prepare and manage audiovisual candidate interviews, organize on-boarding, and communicate regarding all of these functions through access to the Platform.
Support means initial training and instruction, on-line support, helpdesk open 8am to 8pm ET Monday through Friday, except on state and federal holidays, system maintenance, backup and recovery, and technology upgrades.
Virus means a computer virus, malware, or similar item.
3. Use Right.
3.1 Customer will select a username and password which Customer will use to authenticate a session. Customer is responsible for maintaining the confidentiality of its username and password and for all activities in connection their use. Customer must immediately notify Provider of any unauthorized use of its username and/or password or any other breach of security.
3.2 Customer may access the Platform and use the Services on a non-exclusive, non-transferable basis solely for Customer’s internal business use and subject to the limitations expressed in these Terms and Conditions and the Agreement. Subject to section 3.6, Customer may not transfer in any manner its rights under the Agreement. Customer agrees that the Agreement is a services agreement and that Provider will not deliver copies of software.
3.3 The method and means of providing the Platform and Services shall be under the exclusive control, management, and supervision of Provider giving due consideration to the reasonable requests of Customer. Provider shall give to Customer notice of the application of any security update to the Platform and at least 10 days’ prior notice of the application of any non-security update to the Platform.
3.4 Subject to the limited rights granted in these Terms and Conditions, Provider owns all right, title and interest in and to the Platform, Services and Documentation and other deliverables provided under the Agreement, including, without limitation, all modifications, derivative works and feedback. Accordingly, Customer will not, and it will not permit anyone else to, use, modify or create derivative works based on the Platform, Services or Documentation or access the Platform, Services or Documentation to build a similar or competitive product.
3.5 Provider may offer other services that will be governed by different terms and conditions. By executing and delivering an Agreement which would include any such other services, Customer will have agreed to such other terms and conditions.
3.6 Customer will designate and register with Provider Authorized Users consisting of an administrator and other designated employees, agents and contractors of Customer who will have user accounts with levels of access as prescribed by the administrator. Customer will ensure that Authorized Users (a) use commercially reasonable efforts to prevent unauthorized access to and use of the Platform and (b) use the Platform and in compliance with these Terms and Conditions and the Agreement.
3.7 Customer will comply with all applicable local, state, federal and international laws, rules and regulations in connection with its use of the Platform and Services, and it will be responsible for the actions of all persons using the Platform and Services, including, without limitation, candidates accessing the Platform seeking employment. Customer will not interfere with the use of the Platform and Services by others, including, without limitation, by submitting a Virus to the Platform.
3.8 Customer agrees that Provider reserves the right at any time to screen or otherwise monitor content that is provided in connection with the use of the Platform and Services and to delete or remove any content that violates these Terms and Conditions or the Agreement or that Provider considers inappropriate, offensive, illegal, a threat to the rights or safety of any user of the Platform or otherwise objectionable. Provider will not monitor customers using the Platform and Services to be assured that their use is bona fide, that confidential information is being treated as such or that the content provided is accurate, truthful, up-to-date or not misleading.
4.1 Customer must pay the Fees by the method prescribed in the Agreement.
4.2 Customer may not “Go Live” unless and until it has paid all Fees which are due. Any sum not paid by Customer when due will accrue interest at the highest legal rate from the due date until payment.
4.3 In the event Customer fails to pay any sum due under the Agreement, Provider may without further notice suspend Customer’s access to and use of the Platform, Services and Customer Data. Provider reserves the right to charge a $500 fee for reactivating any suspended or terminated account. In no event shall Provider be responsible or liable to Customer or any third party for loss of any Customer Data as a result of suspension.
4.4 The Fees do not include any taxes imposed by any governmental entity (other than those based on Provider’s income. Accordingly, Customer will pay when due all required taxes that would apply to the payments to be made under the Agreement. If Provider is required to withhold or deduct any taxes from any payment of Fees, the applicable Fee will be increased by such sum so that Provider will have received the amount of the Fee prescribed by the Agreement.
5.1 Provider will provide initial base system implementation configuring and web-based training for the ‘authorized Users.
5.2 Provider will respond promptly to all requests for Support. Provider may suspend the provision of the Support if any sum due to be paid by Customer to Provider under these Terms and Conditions or the Agreement is not paid as and when due. Provider will also make available to Customer a helpdesk open 8am to 8pm ET Monday through Friday, except on state and federal holidays, solely to assist Authorized Users in using the Platform and Services. Customer must not use the helpdesk for any other purpose.
6. Platform and Services.
6.1. Provider will endeavor to ensure that no Virus is introduced into Customer’s computer and network environment while using the Platform and Services. Provider will also endeavor to ensure that the Platform and Services will not infringe upon any United States or foreign copyright, patent, trade secret, or other proprietary right.
6.2 Provider provides to Customer access to the Platform and Services on an “as is”, “as available”, “where is” basis and without warranty or representation of any kind. Provider does not warrant that the Platform will operate without error or interruption. Provider disclaims any warranty that the Platform is failsafe or incapable of security breach. In no event shall Provider be liable for any damages resulting from delays or interruptions in internet connectivity.
6.3 Subject to any express restrictions elsewhere in these Terms and Conditions, Provider may subcontract any of its obligations under these Terms and Conditions and the Agreement provided that Provider shall remain responsible to Customer for the performance of any subcontracted obligations.
6.4 Customer acknowledges that links to other websites may be provided on the Platform and that certain Provider branded services may be provided by third parties. Provider will not be responsible for the availability of such external sites or third-party services and does not endorse and is not responsible or liable for any content, advertising, service, product, or other material on or available from such external sites or third parties or for any damages caused by or in connection with such content, advertising, service, product or other material available from such sites or third parties.
7. Customer Data.
7.1 Customer warrants to Provider that the Customer Data when used by Provider will not infringe the intellectual property rights or other legal rights of any person or entity and will not breach the provision of any law, rule, statute or regulation.
7.2 Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable Provider to restore the Platform to the state it was in at the time the back-up was taken and shall retain each such copy for a minimum period of 30 days. Provider shall maintain a backup of Customer Data that can be recovered within 48 hours at any point in time.
7.4 Customer grants to Provider a non-exclusive, worldwide, irrevocable, royalty-free right and license to use, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data (in whole or in part) to the extent reasonably required for the performance of the Provider's obligations and the exercise of Provider's rights under these Terms and Conditions and the Agreement. Customer also grants to Provider the right to sub-license these rights.
7.5 Customer will: (a) provide true, accurate, complete, and up-to-date information about it as prompted by the components of the Platform and in the registration process; and (b) maintain and in a timely manner update this information, including, without limitation, banking and payment information, so that it is at all times true, accurate, complete and up to date.
8. Provider’s Confidentiality Responsibilities.
8.1 Except as otherwise provided in these Terms and Conditions, Provider must not disclose the Customer Confidential Information to any person without Customer's prior written consent. Provider will use the same degree of care to protect the confidentiality of the Customer Confidential Information as Provider uses to protect Provider's own confidential information of a similar nature, being at least a reasonable degree of care.
8.2 Notwithstanding section 8.1, Provider may disclose the Customer Confidential Information to Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Agreement.
8.3 Notwithstanding other provisions in the Agreement and these Terms and Conditions, Provider has no duty of confidentiality in respect of Customer Confidential Information that is known to Provider before disclosure to it by Customer; is or becomes publicly known through no act or default of Provider; is obtained by Provider from a third party in circumstances where Provider has no reason to believe that there has been a breach of an obligation of confidentiality; or is required to be disclosed by any law, regulation, or judicial or governmental order or request.
8.4 Notwithstanding other provisions in the Agreement and these Terms and Conditions, Provider may include Customer’s company’s name in a list of Provider’s customers and allow Provider to publicize the execution of the Agreement and Customer’s use of the Platform and Services. In addition, Customer agrees that Provider may refer to Customer on Provider’s website and in marketing materials.
8.5 The provisions of this section 8 will continue in full force for a period of 2 years following the termination of the Agreement.
9.1 Provider warrants to Customer that Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under the Agreement.
9.2 Customer warrants to Provider that Customer has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions and the Agreement.
9.3 Customer acknowledges that (a) complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions and the Agreement, Provider gives no warranty or representation that the Platform will be entirely secure; and (b) the Platform and Services are designed to be compatible only with that software and those systems specified by Provider; and Provider does not warrant or represent that the Platform and Services will be compatible with any other software or systems.
PROVIDER MAKES NO WARRANTY OR REPRESENTATION: THAT THE PLATFORM WILL BE UNINTERRUPTED, SECURE, FREE OF VIRUSES OR OTHER MECHANISMS, OR ERROR-FREE; AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM AND SERVICES; AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PLATFORM AND SERVICES; OR THE RESULTS OF ANY TRANSACTION ENTERED INTO THROUGH THE PLATFORM AND SERVICES. PROVIDER DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS.
CUSTOMER UNDERSTANDS AND AGREES THAT ANY CONTENT AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM AND SERVICES IS AT CUSTOMER’S DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT AND/OR DATA. CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT PROVIDER WILL NOT BE INVOLVED IN ANY ASPECT OF CUSTOMER’S HIRING PROCESS AND IS NOT PROVIDING ANY ADVICE (LEGAL OR OTHERWISE) CONCERNING ANY MATTER, INCLUDING, WITHOUT LIMITATION, EMPLOYMENT, HIRING OR PRIVACY.
11. Force Majeure Event.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF WHATEVER KIND AND HOWEVER CAUSED EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH CAUSE OR DAMAGES, WHICH CAUSES WOULD INCLUDE, WITHOUT LIMITATION, THE INABILITY TO USE THE PLATFORM, SERVICES OR CUSTOMER DATA; ANY INTERACTION BETWEEN USERS WHETHER ONLINE OR OFFLINE; VIRUS INFECTION; DEFECTS IN SOFTWARE; AND INTERNET INTERRUPTIONS. THE ENTIRE LIABILITY OF EITHER PARTY FOR ALL DAMAGES NO MATTER WHAT THE CAUSE ARISING UNDER OR IN AY WAY RELATED TO THE SHALL NOT EXCEED THE TOTAL FEES, IF ANY, PAID BY CUSTOMER TO PROVIDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, THERE WILL BE NO LIMITATION ON CUSTOMER’S LIABILITY FOR BREACHING SECTIONS 3.2, 3.4, AND 7.1 OR PROVIDER’S BREACH OF SECTION 8.
12. Warranties. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under these Terms and Conditions or the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under these Terms and Conditions or the Agreement, must promptly notify the other and inform the other of the period for which it is estimated that such failure or delay will continue. Provider shall not be liable to Customer in respect of any loss of revenue, income, use, production, contracts or opportunities, or any other loss in respect of any loss or corruption of any data, database or software arising out of a Force Majeure Event.
13.1 Either party may terminate the Agreement immediately by giving notice of termination to the other party if the other party has committed a material breach of the Agreement. A material breach would be Customer’s failure to pay any sum as and when due. However, if either party commits a breach of any of its duties or obligations under the Agreement other than a material breach, the other party may terminate the Agreement if the other party hasn’t cured the breach within15 days from the date it received the notice.
13.2 Upon the termination of the Agreement by Provider pursuant to section 13.1, Provider may permanently delete all Customer Data on its servers. In no event shall Provider be responsible or liable to Customer or any third party for loss of any Customer Data in this instance. Upon termination of the Agreement by Customer pursuant to section 13.1, Provider will promptly refund to Customer any unapplied prepaid annual user Fees.
13.3 Upon termination of the Agreement other than by Provider by reason of section 13.1, each party shall promptly return to the other party or certify the destruction of all confidential information. In this event and in respect of Customer Data, at Customer’s request, Provider will promptly provide to Customer a final export of the Customer Data. The parties agree to work in good faith to execute the foregoing in a timely and efficient manner.
14. Notices. Any notice, demand, or communication required or permitted to be given by any provision of these Terms and Conditions or the Agreement must be in writing and delivered to the party personally, by certified mail, return receipt requested, postage and charges prepaid, by email or overnight courier service, such as Federal Express, to the party at its address set forth in the initial paragraph of the Agreement. Any such notice shall be deemed to have been received on the date of hand-delivery, 3 business days after the date on which the same was deposited in the United States mail, addressed and sent as aforesaid, on the day of confirmed receipt of email (provided, however, if receipt has been confirmed after 5 p.m. on any day, delivery will be deemed on the following business day), and on the date of the addressee’s receipt if by overnight courier service.
15. Dispute Resolution.
15.1 In the event of any Dispute, the parties shall first try to settle their differences amicably between themselves. A party will if it wishes to resolve the Dispute send notice of the Dispute in reasonable detail to the other party, and within 5 days after such notice, the parties will meet (in person or virtually) for attempted resolution by good faith negotiations. If the parties shall have been unable to resolve the Dispute within 10 days of the date of receipt of the initial notice, either party may seek to resolve the dispute pursuant to section 15.2.
15.2 In the event any Dispute shall not have been resolved through the above processes of negotiation, the Dispute may only be resolved by either party submitting, to the extent permitted by such court, to the exclusive jurisdiction of the courts of record of the State of Florida in Palm Beach County or the United States District Court, Southern District of Florida. Customer acknowledges and agrees that Provider’s principal place of business is in Palm Beach County, Florida. THE PARTIES DO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED On, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY ACTION ASSERTING THAT THE AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE.
16.1 Provider may modify the Terms and Conditions without notice, effective immediately, by posting the revised Terms and Conditions on Provider’s website. Provider will also give to Customer prompt notice of the modified Terms and Conditions. If Customer uses the Platform after Provider has delivered such notice to Customer, Customer will be deemed to have accepted the modified Terms and Conditions.
16.2 If any provision of these Terms and Conditions or the Agreement is held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of these Terms and Conditions or the Agreement is held as unenforceable and thus stricken, such holding will not affect the validity of the remainder of these Terms and Conditions or the Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in these Terms and Conditions or the Agreement.
16.3 Upon termination of the Agreement, all of the provisions of these Terms and Conditions and the Agreement shall cease to have effect other than the following provisions of these Terms and Conditions which shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): sections 3, 4, 7, 8, 10, 11, and 14.
Terms and Conditions Gray Peak 09.01.20