SeekOut Software as a Service Agreement
Last Updated: 9/01/2021
This Software as a Services Agreement (this “Agreement”) is entered into as of the Effective Date by and between SeekOut, a service of Zipstorm, Inc, a Delaware corporation with offices at 1110 112th Ave NE Suite 400 Bellevue, WA 98004 (“SeekOut” or “Company”), and Customer. SeekOut and Customer may be referred to individually as “Party” or collectively as “Parties.”
SeekOut is our online talent search engine and recruiting solution that allows users to discover and engage with candidates.
You accept this agreement by (1) executing a quote or order form that references this agreement or (2) using SeekOut services. You agree to this Agreement and any terms incorporated by reference. If the individual accepting this agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this agreement and may not use the services.
You may not access SeekOut if (a) you have previously been suspended or removed from using SeekOut, (b) the laws of the country in which you reside prohibit use of SeekOut in accordance with this Agreement, or (c) your use of SeekOut breaches any other agreement to which you are a party. Company’s direct competitors are prohibited from accessing SeekOut, except with Company’s prior written consent.
3. RIGHT TO ACCESS
Subject to this Agreement, you may access and use SeekOut solely for sourcing and engaging candidates for recruitment. SeekOut, including the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans, and other content contained therein, is owned by us and our licensors. We and our licensors reserve all rights, title, and interest in and to SeekOut.
You will need to register for an account to use SeekOut. If you register for an account, you must (a) provide any information required via SeekOut, (b) ensure that such information is accurate, (c) keep such information up to date at all times, (d) protect your account from unauthorized access or use, including by not sharing your account credentials with any third party, and (e) promptly notify us if you discover or suspect any unauthorized access or use of your account.
5. TERM & AUTO-RENEWAL
This Agreement commences on the date Customer first accepts it according to Section One and continues until all subscriptions hereunder have expired or have been terminated. The term of each subscription shall be as specified in the applicable Quote or Order Form. Except as otherwise specified in a signed Quote or Order Form, subscriptions will automatically renew for additional periods of one year unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Customer fees shall remain the same as the previous fees unless notified 60 days in advance.
6. FEES & PAYMENT
(a) Customer will pay all fees specified in signed Quotes or Order Forms. Except as otherwise specified herein or in a signed Quote or Order Form, (i) fees are based on subscriptions and services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. All fees are in United States Dollars (USD). If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Customer will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by Company to collect any amounts that are not paid when due. Company will not exercise its rights to accrue interest if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
(b) Company’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
You may cancel your SeekOut subscription at any time by contacting us at [email protected] The cancellation of a subscription will go into effect at the end of your current subscription period. We do not refund unused portions of subscription fees. You can renew your subscription at any time subject to current subscription pricing. You can delete your account at any time by requesting removal at [email protected]
8. PROHIBITED CONDUCT
In connection with your use of SeekOut, you will not violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort. You are solely responsible for your conduct while accessing or using SeekOut. You further agree not to:
(a) Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
(b) Use, or attempt to access, another user’s account;
(c) Use SeekOut in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying SeekOut or that could damage, disable, overburden or impair the functioning of SeekOut in any manner;
(d) Reverse engineer any aspect of SeekOut or do anything that might discover source code;
(e) Bypass or circumvent measures employed to prevent or limit access to any part of SeekOut, including by bypassing or ignoring instructions contained in our robots.txt file that control automated access to portions of SeekOut;
(f) Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access SeekOut, extract data or otherwise interfere with or modify the rendering of SeekOut pages or functionality;
(g) Reproduce (other than standard website page caching), create derivative works of, publicly perform, publicly display, distribute, sell, rent, lease, timeshare or otherwise commercially exploit SeekOut, in whole or in part;
(h) Develop or use any third-party applications that interact with SeekOut without our prior written consent; or
(i) Use SeekOut for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.
Separate and apart from User Content, you may submit questions, comments, suggestions, ideas, original or creative materials or other information about Company or SeekOut (collectively, “Feedback”). Feedback, whether submitted through SeekOut or otherwise, is non-confidential and will become the sole property of Company. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
10. COPYRIGHT COMPLAINTS
We have a policy of limiting access to SeekOut and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on SeekOut infringes any copyright that you own or control, you may notify Company’s Designated Agent as follows:
Address: 1110 112th Ave NE
Bellevue, WA 98004
E-Mail Address: [email protected]
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on SeekOut is infringing, you may be liable to Company for certain costs and damages.
11. MODIFICATIONS TO SEEKOUT
We reserve the right, in our sole discretion, to modify SeekOut (or any features or functionality of SeekOut) at any time without notice and without obligation or liability to you. If any of these modifications cause a negative material change to your use of SeekOut you may terminate your agreement in accordance with the “Termination” section below.
(a) Company’s Indemnification Obligations.
Company will indemnify and defend Customer and its Affiliates and their respective officers, directors, employees, shareholders and members from and against any losses, claims, penalties, fines, judgments, damages, liabilities or expenses, including reasonable attorneys’ fee (“Losses”), or threatened Losses arising out of third party claims relating to, incurred in connection with, or based upon any claim, threatened claim, suit, action or proceeding (“Claim”) made against Customer: (i) that that the Services infringe any Intellectual Property Rights of a third party enforceable in the U.S. (“Infringement Claim”); or (ii) any claim for bodily injury or death of any individual, or the loss, damage or destruction of any real or personal property, resulting from the willful, negligent, reckless, fraudulent or intentional acts or omissions of Service Provider or its Subcontractor.
(b) Indemnification Limitations.
Company will have no liability or obligation for any Losses to the extent that such Loss arises out of or results from any: alteration or modification of the services by or on behalf of Customer or any Authorized User without SeekOut’s authorization (each, a “Customer Modification”), provided that no infringement, misappropriation or other violation of third party rights would have occurred without such Customer Modification and provided further that any alteration or modification made by or for Company at Customer’s request will not be excluded from Company’s indemnification obligations hereunder unless (i) such alteration or modification has been made pursuant to Customer’s written specifications and (ii) the SaaS Services, as altered or modified in accordance with the Customer’s specifications, would not have violated such third party rights but for the manner in which the alteration or modification was implemented by or for Service Provider; (i) Customer’s access to or use of the Services that is expressly prohibited by this Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement, the Documentation or the applicable Service Order; or (ii) breach of this Agreement by Customer or noncompliance herewith by any Authorized User.
(c) Customer’s Indemnification Obligations.
Customer will indemnify and defend Company its Subcontractors, Affiliates and such person’s respective officers, directors, employees, shareholder and members from and against Losses arising out of a Claim made against Company relating to, incurred in connection with, or based upon: (i) Customer’s use of the Services in breach of this Agreement; or (ii) any Infringement Claim asserted by any third party based upon Customer materials provided to Company.
(a) SeekOut may contain features designed to interoperate with Third Party Applications. Any acquisition by Customer of Third Party products or services, and any exchange of data between Customer and any Third Party provider, product or service is solely between Customer and the applicable provider. Company does not warrant or maintain Non-SeekOut Applications, products or services. Company is not responsible for any disclosure, modification or deletion of Customer Data resulting from access to SeekOut by such Non-SeekOut Application or its provider.
(b) SeekOut is provided “As Is” and “As Available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. While we strive to make SeekOut a great service, Company does not represent or warrant that SeekOut (including the content and functionality contained therein) is accurate, complete, reliable, current or error-free. For instance, we make no representations or warranties regarding the accuracy or reliability of any suggestions we make through the Services. You assume the entire risk as to the quality and performance of SeekOut.
14. LIMITATION OF LIABILITY
(a) Neither party will not be liable to the other party for any indirect, consequential, exemplary, incidental, or special damages or lost profits, even if Company or the other Company Parties have been advised of the possibility of such damages.
(b) The total liability of the parties, for any claim arising out of or relating to this Agreement or any use of SeekOut is limited to the greater of (i) amounts paid, if any, to Company by you in connection with your use of SeekOut; or (ii) $10,000 dollars.
(c) The limitations set forth in this Section 13 will not limit or exclude either party’s liability to the other party gross negligence, fraud or willful, reckless or intentional misconduct.
You release Company and the other Company Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
16. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Company and limits the manner in which you can seek relief from us.
(a) Except for small claims disputes in which you or Company seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Company seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Company waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or use of SeekOut (“Disputes”) resolved in court. Instead, all Disputes will be resolved through confidential binding arbitration held in Seattle, Washington in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either (i) acknowledge and agree that you have read and understand the rules of JAMS or (ii) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
(b) You and Company agree that any Dispute is personal to you and Company and that any Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
(c) You and Company agree that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and Company agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington USA have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
(d) Any claim based upon a Dispute must be filed within one year after such Dispute arose; otherwise, the claim is permanently barred, which means that you and Company will not have the right to assert a claim based upon the Dispute.
(e) You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by contacting us by email at [email protected] In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
17. GOVERNING LAW AND VENUE
This Agreement and your access to and use of SeekOut will be governed by and construed and enforced in accordance with the laws of State of Washington, USA, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved by the state or federal courts of the State of Washington and the United States sitting in King County, Washington USA.
We reserve the right to change this Agreement from time to time in our sole discretion. If we change this Agreement, we will provide notice of such changes by posting the revised Agreement to Company’s website, email notification, and updating the “Last Updated” date at the top of this Agreement. Your continued use of SeekOut following our provision of such notice will confirm your acceptance of the revised Agreement. If you do not agree to the modified Agreement, you must stop using SeekOut. You cannot use change of this Agreement to end your agreement unless the updated Agreement create a negative material change.
Either party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. If this agreement is terminated by Customer for cause, we will refund any prorated monthly fees covering the term after the effective date of termination. We reserve the right, without notice and in our sole discretion, to suspend or terminate your right to access or use SeekOut. If we choose to end your agreement and there was no breach on your behalf, you will be given 15 day notice and you will be entitled to a pro-rated refund of unused services. In no event will termination relieve Customer of its obligation to pay any fees payable to Company for the period prior to the effective date of termination.
If any provision or part of a provision of this Agreement is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Customer agrees that Company may identify Customer as a customer in or on Company’s demonstrations, website, or other promotional materials. Company’s use of Customer’s name and logo will be in accordance with any guidelines provided by Customer. Upon Customer’s written request, Company will promptly remove Customer’s name or any Customer marks from Company’s website, and to the extent feasible, Company’s marketing materials.
22. EXPORT COMPLIANCE
The Company’s services, content, other technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Both parties represent that they are not named on any U.S. government denied-party list and both parties shall comply with all applicable Trade Restrictions.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts, entertainment, or business agreements provided in the ordinary course of business do not violate the above restriction.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Quotes and Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
This Agreement constitute the entire agreement between you and Company relating to your access to and use of SeekOut. and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Quotes and Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
(1) the applicable Quote or Order Form,
(2) this Agreement,
(3) the Customer order documentation.
The failure of Company to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, this Agreement are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
26. SURVIVING PROVISIONS
The sections titled “Fees and Payment,” “Right to Access,” “Feedback” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Release,” “Dispute Resolution: Binding Arbitration,” and “Surviving Provisions” will survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the duly authorized representatives of the parties agree to the terms and conditions of this Agreement.