MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT GOVERNS YOUR USE OF APPLOI INC. HOSTED SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE HOSTED SERVICES.
You may not access the Hosted Services if You are Apploi’s direct competitor, except with Apploi’s prior written consent. In addition, you may not access the Hosted Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This agreement was last updated on April 27, 2019 (“Agreement”). It is effective between You and Apploi Inc., a Delaware corporation with offices at 253 W35th Street, 15th floor, New York NY 10001 (“Apploi“) as of the date of You accepted this Agreement (the “Effective Date“).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Hosted Services” means the generally available online, Web-based applications and services related to recruiting are ordered by Customer under an Order Form, including updates thereto from time to time.
“Customer Data” means any data, information or other materials submitted by Customer to the Hosted Service.
“Customer Trademarks” means any trademarks that Customer provides Apploi for the purpose of referring to Customer within the user interface for the Hosted Service.
“Dispute Period” means fifteen (15) days from receipt of invoice.
“Documentation” means Apploi’s then current on-line help, guides, and manuals published by Apploi and made generally available by Apploi for the Hosted Services. Documentation shall include any updated Documentation that Apploi provides.
“Effective Date” means the date Customer executes this Agreement. The “effective date” of an Order Form shall be the date Customer executes such Order Form.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for Customer purchases from Apploi that are executed hereunder by Customer and Apploi from time to time. All Order Forms shall be deemed incorporated herein. The initial Order Form is attached hereto as Exhibit A.
“Provider” means a third-party service provider that Customer authorizes to use the Hosted Services for the benefit of Customer. Providers shall be deemed Users for purposes of this Agreement.
“Subscription Term” means the period of time that Customer may use and access the Hosted Service beginning on the Effective Date and as set forth in the applicable Order Form. The Hosted Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Customer shall not be entitled to access the Hosted Services unless the Subscription Term is renewed.
“Users” means individuals who are authorized by Customer to use the Hosted Services, for whom subscriptions to the Hosted Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Apploi at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with which Customer transacts business.
- HOSTED SERVICES.
2.1 Apploi shall make the Hosted Services available to Customer and its Users pursuant to this Agreement and the applicable Order Form during each Subscription Term. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Apploi regarding future functionality or features. Customer shall be responsible for Users’ compliance with this Agreement.
2.2 Unless otherwise specified in the applicable Order Form, Hosted Services are purchased as User subscriptions based on the number of Hosted Services modules used by Customer.
2.3 Customer shall not: (i) sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Services available to any third party other than Users; (ii) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Services for any purpose including without limitation discovering individual Customer Data or re-identifying anonymous data; (iii) access or use the Hosted Services in order to build a similar or competitive product or Hosted Service; (iv) disclose any review of the Hosted Service to any third party without Apploi’s prior written approval; or (v) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information. Except as expressly stated herein, no part of the Hosted Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Hosted Services, and notify Apploi promptly of any such unauthorized access or use.
- THIRD-PARTY PROVIDERS.
In some case, Customer may authorize Provider to use the Hosted Services. Provider’s use of the Hosted Services and provision of services to Customer related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Customer and such Provider is solely between Customer and the applicable Provider. Apploi shall have no liability or obligation for, and does not endorse or accept any responsibility for Provider, the contents or use of third-party websites or any transactions completed with Providers or any third parties. Customer is responsible for all acts and omissions of Provider or any third-party User.
4.1 Apploi shall own and retain all right, title and interest in and to the Hosted Services and Apploi Confidential Information (defined below), including all intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2 Apploi shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Hosted Services.
- BILLING AND PAYMENT.
5.1 Customer agrees to pay within 30 days of receiving an invoice for all Hosted Services ordered. Except as otherwise provided: (i) the Hosted Services fees for the first Subscription Term set forth in each Order Form hereunder will be invoiced upon execution of such Order Form; and (ii) subsequent fees under any applicable Order Form will be invoiced, if applicable, in advance approximately thirty (30) days prior to the start of each subsequent Subscription Term or charged automatically at the start of each subsequent Subscription Term; provided, however, that if the subsequent Subscription Term begins on the 28th, 29th, 30th, or 31st day of the month, Customer may be automatically charged on the 27th day of the applicable month. All fees under this Agreement are nonrefundable except as otherwise set forth herein. Apploi’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by Apploi. Invoices for all Hosted Services in the amount less than $1,000/month shall be paid via credit card or ACH bank payments, other invoices may be paid via credit card or ACH bank payments for no additional fee or via check which shall incur an additional $4/location/month processing fee.
5.2 Except as otherwise provided in an Order Form, payment for invoices is due within thirty (30) days of Customer’s receipt of the applicable invoice (excluding amounts under reasonable and good faith dispute). If any amounts are withheld by Customer, Customer shall, within the Dispute Period provide Apploi a reasonably detailed written explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. For clarity, Customer remains obligated to pay Apploi for all portions of the applicable invoice that are not under reasonable and good faith dispute. Overdue amounts may result in suspension of Customer’s ability to access the Hosted Service until payment is made. Customer shall reimburse Apploi for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Apploi in the collection of overdue amounts. Accounts with delinquent payments past 90 days may be suspended until all payments are made in full.
For the Subscription Term Apploi shall provide assistance to Customer by telephone, e-mail or online chat as communicated to Customer. Apploi shall use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer. Apploi shall review all requests for improvements and new functionality, but Apploi shall have no obligation to provide any modifications to the Hosted Service.
- LIMITED REPRESENTATIONS & WARRANTIES.
Each Party represents and warrants that it has the power and authority to enter into this Agreement. Apploi warrants that (i) it will provide the Hosted Service in a manner consistent with generally accepted industry standards, (ii) the Hosted Service will perform substantially in accordance with its online Documentation under normal use, (iii) the functionality of the Hosted Service will not be materially decreased during a subscription term; (iv) the configuration of the Hosted Services will conform in all material respects to this Agreement and/or the applicable Order Form; and (v) the Hosted Service will not contain or transmit to Customer any Malicious Code (except for Malicious Code that may be uploaded by Users). In the event of breach of (i) , (ii) or (iv) above, Customer’s sole and exclusive remedy, and the sole and exclusive obligation of Apploi, shall be to use commercially reasonable efforts to correct or provide a workaround for the reproducible error(s) that cause breach of these warranties, or if Apploi is unable to make the Hosted Service operate as warranted within a reasonable time considering the severity of the error and its impact on the Customer, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund.
- DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- LIMITATION OF LIABILITY.
9.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF APPLOI OR ITS THIRD-PARTY PROVIDERS EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
9.2 IN NO EVENT SHALL EITHER PARTY OR THIRD-PARTY PROVIDERS OF APPLOI BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD-PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY IN THE EVENT OF CUSTOMER’S INFRINGEMENT OR MISAPPROPRIATION OF APPLOI’S INTELLECTUAL PROPERTY RIGHTS, OR TO CUSTOMER’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 10 BELOW. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY.
10.1 Indemnification by Apploi. Apploi shall defend, indemnify and hold Customer harmless against any “Claims” made or brought against Customer by a third party alleging that (i) the use of the Hosted Service as contemplated hereunder infringes the copyrights, trademarks or trade secrets of such third party; or (ii) Apploi failed to comply with applicable laws, rules or regulations in its performance of this Agreement; provided, that Customer (a) promptly gives written notice of the Claim to Apploi; (b) gives Apploi control of the defense and settlement of the Claim (provided that Customer may participate in such defense at its own expense and that Apploi may not settle any Claim in a manner that admits liability on behalf of Customer); and (c) provides to Apploi, at Apploi’s expense, reasonable assistance in connection with the defense and settlement of the Claim. Apploi shall pay Customer any damages finally awarded against Customer, settlements agreed to in accordance with Section 10.1(b) and reasonable costs and expenses (including reasonable legal fees) directly attributable to such Claim.
10.1.1 Apploi may, at its sole option and expense: (i) procure for Customer the right to continue using the Hosted Service under the terms of this Agreement; or (ii) replace or modify the Hosted Service to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably practicable, Apploi may terminate this Agreement and refund to Customer all prepaid fees for the remainder of its subscription term after the date of termination. This Section 10 represents Apploi’s entire obligation and Customer’s exclusive remedy regarding any third party intellectual property claims.
10.1.2 Furthermore, Apploi shall have no liability for any Claim under Section 10.1(i) to the extent such liability is the result of (i) modifications to the Hosted Service by anyone other than Apploi or its agents (provided that Apploi shall not be liable if Apploi or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives); (ii) the use or combination of the Hosted Service with any other item not provided by Apploi where in the absence of such use or combination, the Hosted Service alone would not have given rise to the Claim; or (iii) Customer’s continued use of an infringing version of the Hosted Service when the then current version of the Hosted Service has been modified to be non-infringing.
10.2 Indemnification by Customer. Customer shall defend, indemnify and hold Apploi harmless against any Claims made or brought against Apploi by a third party alleging that (i) Customer’s use of the Hosted Service in violation of this Agreement infringes or violates the rights of such third party; or (iii) Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement; provided, that Apploi (a) promptly gives written notice of the Claim to Customer; (b) gives Customer control of the defense and settlement of the Claim (provided that Apploi may participate in such defense at its own expense and that Customer may not settle any Claim in a manner that admits liability on behalf of Apploi); and (c) provides to Customer, at Customer’s expense, reasonable assistance in connection with the defense and settlement of the Claim. Customer shall pay Apploi any damages finally awarded against Apploi, settlements agreed to in accordance with Section 10.2(b) and reasonable costs and expenses (including reasonable legal fees) directly attributable to such Claim.
- TERM AND TERMINATION.
11.1 The term of this Agreement shall commence on the Effective Date listed above and shall continue until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2 The subscription term of an Order Form commences on the Effective Date (for the initial purchase of subscriptions) or the effective date of such Order Form (for subsequent purchases of subscriptions), and continues for the subscription term specified in such Order Form. Customer’s subscription to the Hosted Service will automatically renew at the applicable subscription renewal fees based on the terms of any applicable Order Form at the time of such renewal, unless and until either Party provides no less than sixty (60) days’ written notice of its intent to terminate. The pricing during any renewal Subscription Term may increase by up to 5% above the applicable pricing in the prior term, unless Apploi provides Customer notice of different pricing at least 60 days prior to any new pricing going into effect. Upon termination for any reason, all payments due will accelerate and become immediately due and payable.
11.3 A Party may terminate this Agreement for cause (i) upon breach of this Agreement if such breach has not been cured within 30 days of written notice from the non-breaching Party specifying the breach in detail and, if Apploi is the non-breaching Party, Apploi may terminate Customer’s password, account, access to and/or use of the Hosted Service; (ii) immediately upon written notice if the other Party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (iii) if either Party undergoes a change of Control in favor of a direct competitor of the other Party; or (iv) as otherwise provided herein.
11.4 At Customer’s request, within 30 days of termination of this Agreement, provided Customer is not in breach of the Agreement, Apploi may make available to Customer an agreed upon file of Customer information then in its possession for a processing fee agreed upon by the parties.
- CONFIDENTIAL INFORMATION.
12.1 Each Party may have access to information that is confidential to the other Party. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party“) disclosed to the other Party (“Receiving Party“), whether orally or in writing, that is clearly identified as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form hereunder), the Hosted Service, business and marketing plans, technology and technical information, product designs, trade secrets and business processes. A Party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information. The Parties agree to use all reasonable care to prevent disclosure of the other Party’s Confidential Information to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Apploi may disclose Customer’s Confidential Information to its employees, consultants, Providers and other third-party providers solely to the extent necessary to provide the Hosted Service under this Agreement, provided that Apploi has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement. This Section 12 constitutes the entire understanding of the Parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
12.2 If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure.
12.3 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 12, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
12.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information for five (5) years and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
- CUSTOMER’S RESPONSIBILITIES.
Customer will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Hosted Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Apploi controls and operates the Hosted Services. Customer will ensure that any use of the Hosted Services by Customer’s Users is in accordance with the terms of this Agreement.
- GENERAL PROVISIONS.
14.1 If Customer is a federal government entity, Apploi provides the Hosted Service, including related software and technology, for ultimate federal government end use solely in accordance with the appropriate regulations.
14.2 Either Party may include the other’s name and logo in customer or vendor lists.
14.3 Any action related to this Agreement will be governed exclusively by the internal laws of the state of New York, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in New York, New York. The Parties hereby irrevocably consent to the jurisdiction of such courts. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.4 This Agreement, together with any applicable Exhibits represent the Parties’ entire understanding relating to the use of the Hosted Services and supersedes any prior or contemporaneous, conflicting or additional, communications. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of the Parties hereto. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order Form or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void.
14.5 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.6 No joint venture, partnership, employment, or agency relationship exists between Apploi and Customer as a result of this Agreement or use of the Hosted Services.
14.7 Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either Party may assign this Agreement in its entirety (including all Order Forms hereunder) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other Party; and (ii) Apploi may assign its rights and obligations relating to implementation of the Hosted Service to an Affiliate or partner. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
14.8 Apploi reserves the right to use third-party providers in the provision of the Hosted Services hereunder and Apploi will be responsible for the acts or omissions of such third parties.
14.9 Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of Hosted Service attacks.
14.10 Apploi may give notice by means of a Customer Notification on the Hosted Service; electronic mail to Customer’s e-mail address on record in Apploi’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on the Hosted Service. Customer may give notice to Apploi at any time by letter sent by email to [email protected] or by letter delivered first class mail to Apploi at 253 W35th Street, 15th floor New York, NY 10001.
14.11 The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted herein are reserved by Apploi.
14.12 Apploi reserves the right to alter the terms of this Agreement at any time. If the alterations constitute a “material change” to the Agreement, Apploi will notify Customer. What constitutes a “material change” will be determined at Apploi’s sole discretion, in good faith and using common sense and reasonable judgment, but will only include those changes that materially affect Customer’s use of the Hosted Services or rights under this Agreement. Notice will be considered to have been delivered once sent. Customer agrees to review the latest version of the Agreement on Apploi’s website periodically to remain aware of any non-material modifications to the Agreement about which Customer is not alerted by Apploi. The Agreement available on the website will be dated so as to make clear what version is currently in force. Any use of the Hosted Services after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer’s sole remedy should Customer not agree with the altered Agreement shall be to cease Customer’s use of the Hosted Services and to comply with Customer’s termination obligations outlined in Section 11 of this Agreement.