Last Updated: July 2, 2018
IMPORTANT – READ THIS CAREFULLY BEFORE USING OR ACCESSING THIS PROPRIETARY PRODUCT.
These Terms of Service (the “Terms”) are a legal agreement between TalentWall LLC, a Colorado limited liability company (“TalentWall”) and the third party for whom you are acting as the end user of the System and Services (as defined in these terms) and govern your access to and use of the System and Services.
You agree that you are an employee or agent of the third party for whom you are acting as the end user of the System and Services and are entering into these Terms for use of the System and Services by such third party for its own internal business purposes in accordance with these Terms. You represent and warrant that you have sufficient right to bind such third party to these Terms. Accordingly, all references to “you” and “your” in these Terms shall be references to such third party.
If you have signed a separate written agreement with TalentWall for access to the System and the provision of the Services (“Services Agreement”), the terms of that separate Services Agreement will supersede these Terms. If you have signed a separate Order Form with TalentWall for access to the System and the provision of the Services (“Order”), these Terms are incorporated into and are made a part of that Order, which together with these Terms make up the “Agreement.”
BY CLICKING I AGREE, OR BY OTHERWISE ACCESSING THE SYSTEM OR USING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS.
1.1. “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of fifty percent (50%) or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2. “Customer Data” means your candidate and other related data: (a) supplied by you to TalentWall under these Terms, or (b) imported into the System by you or TalentWall via third-party providers.
1.3. “Documentation” means the user materials and other documentation made available by TalentWall to you for the Service and the System.
1.4. “Implementation Services” means the loading of Customer Data and the provision of other implementation, set up and training services for the System as listed and described in the applicable Order.
1.5. “Order” means any order document, invoice, website ordering process, or other applicable ordering document setting forth Services and the pricing ordered by Customer. Each agreed upon Order will be incorporated by reference into these Terms and subject to these Terms.
1.6. “Services” means collectively, (a) Implementation Services (b) System Access, (c) training services and (d) support services described in the applicable Order to be provided by TalentWall pursuant to these Terms.
1.7. “Software” means TalentWall’s proprietary software programs made available by TalentWall via the internet to you as part of the System, including any modified, updated, or enhanced versions of such software that may become part of the Software.
1.8. “System” means TalentWall’s on-line recruiting management system, a web-based application that increases the efficiency of managing your recruitment process that consists of the Software and databases containing Customer Data.
1.9. “System Access” means access to the System pursuant to these Terms as listed and described in an Order.
1.10. “User” means any individual employee or independent contractor of you or your Affiliates for whom System Access is authorized by you.
2.1. Provision of Services by TalentWall. Subject to the terms and conditions of these Terms, TalentWall shall perform the Implementation Services and provide you with System Access and other Services as described in the applicable Order.
2.2. Cooperation. You shall use reasonable commercial efforts to supply to TalentWall the Customer Data along with access to personnel resources reasonably requested by TalentWall that are necessary for TalentWall to provide the Services set forth in the applicable Order. The parties shall reasonably cooperate with each other to facilitate TalentWall’s provision of the Services for you.
2.3. Resources. You will access the System via the internet and therefore, you are responsible for, at your own expense, acquiring, installing and maintaining all connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for your Users to connect to and obtain System Access.
3. Your Use of the System.
3.1. Access and Use Rights. Subject to the terms and conditions of these Terms, TalentWall hereby grants to you, during the Term, a non-exclusive, non-sublicensable right to access and use the System solely for your or your Affiliates’ internal business purposes and in accordance with the Documentation and the terms and conditions of these Terms. Under the rights granted to you under these Terms, you may permit employees and independent contractors of your Affiliates to become Users in order to access and use the System in accordance with these Terms; provided that you shall be liable for the acts and omissions of all your Affiliates and Users to the extent any of such acts or omissions, if performed by you, would constitute a breach of, or otherwise give rise to your liability under, these Terms. You shall not, and shall not permit any User to use the System, Software or Documentation except as expressly permitted under these Terms.
3.2. Restrictions. You shall not provide or permit use of or access to the System to any third party without the prior written approval of TalentWall in each instance, except as expressly permitted under these Terms. You, your Affiliates, and your and their independent contractors may not access the System for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. In addition, you, your Affiliates and your and their independent contractors may not: sell, resell, rent or lease the System; copy, frame or mirror any part or content of the System; or access the System in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the System.
3.3. Evaluation Access and Use Rights. If you are accessing and using the System for trial or evaluation purposes, the following terms shall apply and take precedence over the preceding and any inconsistent or conflicting terms unless and until you purchase a right to access and use the System: Subject to the terms and conditions of these Terms, TalentWall grants to you, for a period of thirty (30) days following acceptance of these Terms (“Evaluation Period”), a revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the System solely for your internal business purpose of evaluating and testing the System and validating the functionality of the System to determine whether to purchase a right to access and use the System, and subject to any limitations specified by TalentWall. You may elect to purchase a right to access and use the System by notifying TalentWall in writing prior to the expiration of the Evaluation Period and paying the applicable fees in accordance with these Terms. Upon payment of such fees, TalentWall will grant you a right to access and use the System for your future use of the System in accordance with Section 3.1. If you do not procure such a right to access and use the System prior to expiration of the Evaluation Period, your right to access and use the System will terminate and the System will cease to function, unless TalentWall extends the Evaluation Period in writing. During the Evaluation Period, the System is provided for trial and internal evaluation purposes “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND and your use of the System is entirely at your own risk. Except as altered in this Section, all terms of these Terms shall apply and govern your use of the System during the Evaluation Period explicitly excluding Section 7. TalentWall will have no obligation under this Section to correct any bugs, defects or errors in the System or to otherwise support or maintain the System unless you purchase support Services for the System during the Evaluation Period.
4. Pricing; Payment; Taxes.
4.1. Price. The fees for Services will be agreed upon and set forth in the applicable Order (“Fees”) and you agree to pay TalentWall all such agreed upon Fees in accordance with the terms of these Terms and the applicable Order. Fees do not include, and as between TalentWall and you, you are responsible for payment of all taxes, fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to TalentWall under these Terms (excluding any taxes arising from TalentWall’s income or any employment taxes). Prices for any Services requested by you that are not set forth in an Order shall be charged as mutually agreed to by the parties in a writing executed by representatives of each party.
4.2. Payment. Unless the applicable Order provides otherwise, you will pay correctly invoiced Fees and expenses within 30 days after your receipt of the applicable invoice for such Services. All payments will be made in United States dollars.
4.3. Purchase Orders. If you require the issuance of purchase orders, you shall promptly issue such purchase orders with respect to the Services you purchase pursuant to the applicable Order. Services are deemed “purchased” upon the earlier of System Access or commencement of implementation activities.
5. Term and Termination.
5.1. Term. These Terms commence on the Effective Date and continue until terminated in accordance with these Terms (the “Term”).
(a) Termination by TalentWall. During the Evaluation Period, TalentWall may suspend or terminate your access to and use of the System, at any time, without notice, for any reason, including but not limited to (a) your breach of these Terms, or any other policies or guidelines set forth by TalentWall, or (b) conduct that TalentWall believes is harmful to other users of the System, or the business of TalentWall or other third party information providers. Further, you agree that TalentWall shall not be liable to you or any third party for any termination of your access to the System.
(b) Termination for Breach. Either party may terminate these Terms if the other party breaches any material provision of these Terms and does not cure such breach (provided that such breach is capable of cure) within 30 days after being provided with written notice thereof. If you terminate these Terms and all Orders for TalentWall’s uncured breach in accordance with this Section 5.2(b), promptly after the effective date of such termination, TalentWall shall refund a pro-rata portion of the Fees for System Access paid by you under the applicable Order for the remainder of the Term that you paid for (the “Pro-Rata Refund”). Unless you terminate these Terms for TalentWall’s uncured breach in accordance with this Section 5.2(b), such termination shall not terminate or affect your obligation to make payments to TalentWall for Services agreed upon by you prior to termination or expiration and you shall not be entitled any refund of prepaid Fees.
(c) Termination for Convenience. If there is no Order in place, either Party may terminate these Terms upon ninety (90) days prior written notice to the other party.
5.3. Effects of Termination. Upon expiration or termination of these Terms for any reason: (a) any amounts owed to TalentWall under these Terms before such termination or expiration will be immediately due and payable, (b) all rights granted in these Terms will immediately cease, (c) you must promptly discontinue all access and use of the System and return or destroy, all copies of the Documentation in your possession or control and (d) TalentWall will promptly return, destroy or erase all Customer Data (excluding Customer Data that is automatically archived by TalentWall’s backup systems in accordance with TalentWall’s retention policies, on the condition that all such Customer Data remains subject to the confidentiality requirements set forth in Section 10 of these Terms). Sections 1, 5.3, 6, 8, 9, 10, and 11 will survive termination of these Terms for any reason.
6. Proprietary Rights.
6.1. Customer. As between the parties, you own all right, title and interest in Customer Data that you have provided to TalentWall under these Terms and any reports produced by the System with respect thereto, including all intellectual property rights therein. Any rights not expressly granted to TalentWall hereunder are reserved by you, your licensors, and your suppliers.
6.2. Customer Data License Grant. Subject to the terms and conditions of these Terms, you hereby grant to TalentWall, during the Term, a non-exclusive, non-transferable (except as permitted by Section 11.1), non-sublicensable license to use the Customer Data solely for the limited purpose of performing the Services for you under these Terms.
6.3. TalentWall. The Software, Documentation, Services, all proprietary technology utilized by TalentWall to perform its obligations under these Terms, and all intellectual property rights in and to the foregoing, are the exclusive property of TalentWall, its licensors and suppliers. Any rights not expressly granted to you hereunder are reserved by TalentWall, its licensors and suppliers. Your access and use of the System is non-exclusive.
7. Warranty; Disclaimers.
7.1. System Access. During the Term, TalentWall warrants that the System will perform in accordance with the Documentation. TalentWall does not warrant that the System will be completely error-free or uninterrupted. TalentWall will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct or provide a workaround for any reproducible error in the System reported to TalentWall by you in writing within 30 days after you experience the error (“Error”). If, however, TalentWall is unable to provide a correction or workaround for any such Error within 60 days after receiving notice of an Error from you, you may terminate these Terms upon notice to TalentWall and, as its sole obligation, TalentWall shall refund to you the fees that you pre-paid for the remainder of the Term. The warranties set forth in this Section 7.1 do not cover or apply to (a) any Error caused by you or third-parties, or (b) any Error or unavailability of the System caused by use of the System in any manner or in any environment inconsistent with its intended purpose.
7.2. Mutual Warranties. Each party represents and warrants that: (a) it has the full right, power and authority to enter into, execute, and perform its obligations under these Terms; (b) it will not transmit to the other party any Malicious Code. “Malicious Code” means software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines, and that (c) it shall comply with those laws and regulations applicable to such party.
7.3. Right to Customer Data. You represent and warrant that you have the right to use the Customer Data as contemplated by these Terms, and/or direct TalentWall to use the Customer Data as part of the Services provided to you under these Terms.
7.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.1. Claims Against Customer. TalentWall will defend, at its own expense, any claim, suit or action against you brought by a third party to the extent that such claim, suit or action is based upon an allegation that the Software infringes any intellectual property rights of such third party (each, “Customer Claim”), and TalentWall shall indemnify and hold you harmless from and against those losses, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) that are attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on you: (a) promptly notifying TalentWall in writing of such Customer Claim; (b) giving TalentWall sole control of the defense thereof and any related settlement negotiations; and (c) reasonably cooperating and, at TalentWall’s request and expense, assisting in such defense. In the event that the use of the Software is enjoined, TalentWall shall, at its option and at its own expense either (a) procure the right for you to continue using the Software, (b) replace the Software with a non-infringing but functionally equivalent product, (c) modify the Software so it becomes non-infringing or (d) terminate these Terms and refund the amounts you paid for System Access that relate to the period during which the Software was not usable by you. Notwithstanding the foregoing, TalentWall will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon: (1) any use of the System in violation of these Terms; (2) any use of the System in combination with products, equipment, software, or data not supplied or approved by TalentWall if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the System by any person other than TalentWall or its authorized agents or subcontractors. This Section 8.1 states TalentWall’s entire liability and your sole and exclusive remedy for infringement claims or actions.
8.2. Claims Against TalentWall. You will defend, at your own expense, any claim, suit or action against TalentWall brought by a third party to the extent that such claim, suit or action is based upon your or TalentWall’s use of any Customer Data in accordance with these Terms (“TalentWall Claim”), and you shall indemnify and hold TalentWall harmless from and against those losses, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) attributable to such TalentWall Claim or those costs and damages agreed to in a monetary settlement of such TalentWall Claim. The foregoing obligations are conditioned on TalentWall: (a) promptly notifying you in writing of such TalentWall Claim; (b) giving you sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at your request and expense, assisting in such defense. Notwithstanding the foregoing, you will have no obligation under this Section 8.2 or otherwise with respect to any TalentWall Claim to the extent based upon any use of the Customer Data by TalentWall in violation of these Terms.
9. Limitation of Liability. In no event will EITHER PARTY be liable for any consequential, indirect, EXEmplary, special, or incidental damages, OR FOR any lost data, lost profits OR costs of procurement of substitute goods or services, arising from or relating to these Terms, however caused and under any theory of liability (including negligence), even if SUCH PARTY has been advised of the possibility of such damages. EACH PARTY’s total cumulative liability in connection with these Terms and the System, whether in contract or tort or otherwise, will not exceed the amount OF FEES PAID OR PAYABLE BY CUSTOMER TO TALENTWALL UNDER THESE Terms IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. the limitation of liabilities set forth in this section 9 shall not apply to the obligations under Section 8.
10.1. Definition. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of these Terms. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. The Software, System and Documentation shall be considered TalentWall’s Confidential Information, notwithstanding any failure to mark or identify it as such.
10.2. Protection. Recipient will not use any Confidential Information of the Discloser for any purpose not expressly permitted by these Terms, and will disclose Confidential Information only to the employees or, subject to Section 3, individual independent contractors of Recipient who have a need to know such Confidential Information for purposes of these Terms and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
10.3. Exceptions. Recipient’s obligations under Section 10.2 above with respect to any Confidential Information of Discloser will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient at the time of disclosure by Discloser; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
10.4. Protection of Customer Data. Without limiting the above, TalentWall will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. TalentWall will not (a) modify the Customer Data except as updated by the Customer in the System, (b) disclose the Customer Data except as compelled by law in accordance with Section 10.3 or as expressly permitted in writing by you, or (c) access the Customer Data except to provide the Services or prevent or address service or technical problems, or at your request in connection with customer support matters.
11. General Provisions.
11.1. Assignment. Neither party may assign or transfer, by operation of law or otherwise, these Terms or any of its rights under these Terms to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that either party may assign these Terms without consent by operation of law or otherwise to any successor to its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
11.2. Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.
(a) Notice to TalentWall. All notices, consents, and approvals to TalentWall under these Terms must be delivered in writing by electronic mail to email@example.com and will be effective upon receipt.
(b) Notice to Customer. All notices, consents, and approvals to you under these Terms must be delivered in writing by electronic mail, courier, or certified or registered mail (postage prepaid and return receipt requested) to you at the address that TalentWall has on file for you and will be effective upon receipt. You may update your address on file by notifying TalentWall of such address in accordance with Section 11.3(a).
11.4. Governing Law. These Terms will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules.
11.5. Remedies. Except as otherwise expressly provided in these Terms, the parties’ rights and remedies under these Terms are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 3 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
11.6. Relationship of the Parties. The parties acknowledge that TalentWall is an independent contractor of you, and its employees are not your employees. Nothing in these Terms or any order document will be construed as creating a partnership, joint venture, or agency relationship between the parties, or as authorizing either party to act as an agent for the other or to enter contracts on behalf of the other. Nothing in these Terms is intended to confer any rights or remedies on any other person or entity, which is not a party to these Terms.
11.7. Waivers. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by the party entitled to the benefit of the right being waived. Unless otherwise stated in the waiver, any waiver applies only to the specific circumstance for which the waiver is given and not to any subsequent circumstance involving the same or any other right.
11.8. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of these Terms will continue in full force and effect.
11.9. Entire Agreement. These Terms, including any order document and any exhibits or attachments thereto, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement sets forth the general terms and conditions applicable to all Services provided by TalentWall to you under any specific terms and conditions that may be set forth in the applicable order document. By executing these Terms, the parties agree that the provision and receipt of Services are expressly conditioned on the acceptance of the agreed upon terms in these Terms. No other terms apply. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of these Terms and the provisions of any applicable order document, the provisions of the applicable order document shall govern. In addition, to the extent of any conflict or inconsistency between the terms and conditions of these Terms and your purchase order, the terms and conditions of these Terms will control. These Terms will not be modified except by a subsequently dated written amendment signed on behalf of TalentWall and you by duly authorized representatives.