This Services Agreement (“SA”) between RecruitBPM and the Customer identified on the applicable Order Form sets out the terms and conditions applicable to the customer’s use of the services provided by RecruitBPM.
By executing an Order Form on the RecruitBPM.com web site (“Service”), a service of RecruitBPM, you are agreeing to be bound by the following terms and conditions (“Services Agreement”). Customers not subscribed to a paid plan are not governed by this MSA.
RecruitBPM reserves the right to update and change the Terms of Service from time to time without notice. Any new features that increase or upgrade the current Service, including the release of new tools, integrations and resources, shall be subject to the subscription agreement.
Customer shall be accountable for all activities that occur under Customer’s User accounts. Customer is liable to maintain the security and confidentiality of all User usernames and passwords. Recruit BPM is entitled to treat all communications that are identified by means of such usernames and passwords as authorized by Customer. Customer shall notify Recruit BPM immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.
An individual user login may only be used by one person a single user login shared by multiple people is not permitted. You must have a user license for everyone using the system, you are not authorized to share a login username and password.
Customer is responsible for providing all equipment necessary to make (and maintain) a connection to the World Wide Web. Customer understands that DSL, cable, fiber optic, or other high speed Internet connection is required for proper performance of the Service.
Specific third party providers, some of which may be listed on Recruit BPM’s website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) or services that work in conjunction with the Service, such as by exchanging data with the Service or offering additional functionality within the user interface of the Service through the use of the Service’s application programming interface. Recruit BPM does not warrant any such third party providers or any of their products and services, whether or not such products or services are designated by Recruit BPM as “certified”, “validated” or the like. Any exchange of data or other interaction between Customer and a third party provider, and any purchase by Customer of any product or service offered by such third party provider is solely between Customer and such third party provider.
In addition, from time to time, certain additional functionality (not defined as part of the Service) may be offered by Recruit BPM to Customer, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the third party licensor and agreed to by Customer in connection with a separate purchase by Customer of such additional functionality. Customer’s use of any such additional functionality shall be governed by such terms or by other applicable terms and conditions, which shall prevail in the event of any inconsistency with the terms of the Agreement.
Customer agrees to use third party software necessary for accessing the Service, including but not limited to “browser” software that supports a data security protocol compatible with the protocol used by Recruit BPM and is otherwise compatible with the Service. Until notified otherwise by Recruit BPM, Customer agrees to use Recruit BPM-specified browser software that supports the Secure Socket Layer (SSL) protocol and to follow logon procedures for services that support such products. Customer agrees that Recruit BPM is not responsible for notifying Customer of any errors in or updates, enhancements or fixes to any such software.
The Service may provide, or third parties may provide, links to other World Wide Web or mobile sites or resources. Because Recruit BPM has no control over such sites and resources, Customer agrees that Recruit BPM is not responsible for the availability of such external sites or resources, and does not endorse and is not liable for any content, advertising, products or other materials on or available from such sites or resources. In addition, Customer agrees that Recruit BPM is not responsible for any and all third party information that may be provided to Customer through the Service (e.g., through the integration of the Service with a third party online application or service).
Customer understands that electronic communication is necessary for Customer’s use of the Service. Customer consents to Recruit BPMâ€™s receipt and storage of electronic communications and/or Customer Data and Customer acknowledges that Customerâ€™s electronic communications will involve transmission over the Internet and over various other networks that are not owned or operated by Recruit BPM. Customer agrees that Recruit BPM is not responsible for any electronic communications or Customer Data which are delayed, lost altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned or operated by Recruit BPM, including, without limitation, the Internet.
Recruit BPM will make commercially reasonable efforts to promote Customer’s successful utilization of the Service by providing Customer with user guides and on-line help, as well as optional and fee-based training classes.
Recruit BPM reserves the right to communicate information to and solicit feedback from Customer and Users from time to time. Recruit BPM shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.
Recruit BPM reserves the right to use commercially reasonable means to contact users of its service for the purpose of marketing or promoting Recruit BPMâ€™s offerings of services and products. For this purpose, Recruit BPM may, during the Term, solicit contact information from users (such as name, phone, email and mail address information) and may retain such information during and after the Term.
Customer shall not submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”).
Customer will be responsible to ensure that its Users do not submit any Objectionable Matter and will be responsible for actions of its Users.
In addition, Recruit BPM may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Recruit BPM website; Customer and Customerâ€™s Users will be bound by any such rules. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and the Content, including laws involving private data and any applicable export controls.
Recruit BPM reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any Recruit BPM rules regarding appropriate use, but is not obligated to do so. Recruit BPM reserves the right to remove any personal information of an individual upon request from such individual.
Customer is responsible for all text, images, video, sound, data and other materials posted and activity that occurs under your account, even when Content is posted by others who are sharing your pages (such text, images, video, sound, data and other materials shall be collectively referred to as the “Content”).
Customer will not use the Service to direct Unwanted Commercial Email (“UCE”) to any individual. For obligations of the Contract, UCE encompasses any email or other electronic communication that is directed by or at the request of Customer to a person with whom Customer has no prior business relationship or who has not consented to receiving the communication, and any other email transmission that violates any law prohibiting the transmission of spam or unsolicited communications.
Without limiting the foregoing restrictions regarding UCE, Customer shall not (a) do anything that has the effect of concealing the identity of Customer or any User sending the email; (b) send or cause to be sent any UCE to a person unless such communication also provides the recipient with a visible and user friendly means of opting out of future communications; or (c) engage in any activity which is reasonably likely to lead to complaints of UCE. Customer agrees to ensure that its Users do not violate the foregoing UCE restrictions. No later than 14 days after receiving a request from Recruit BPM, Customer shall provide Recruit BPM with the names and contact details of a primary and backup contact who will be responsible for responding to any complaints of UCE. Recruit BPM will promptly notify Customer of any complaint that Recruit BPM receives from a third party concerning alleged transmission of UCE by Customer. Customer shall investigate the compliant and notify Recruit BPM within one business day (or such further period as may be agreed in writing by the parties) of action that Customer has taken in response to the complaint. If the complaint has not been resolved, Customer will provide Recruit BPM with written updates of the status of the complaint at such reasonable intervals as may be requested by Recruit BPM. Recruit BPM reserves the right to remove and/or terminate any transmission of UCE by Customer or its Users; however Recruit BPM has no obligation to do so.
3. Ownership and Usage Rights
3.1 Recruit BPM Ownership
Recruit BPM and its suppliers retain all rights in the Service and Content. The Agreement grants no ownership rights to Customer. No license is granted to Customer except as to access and use the Service as expressly stated in the Agreement. The Recruit BPM name, the Recruit BPM logo, and the product names, service names, and branding associated with the Service are trademarks of Recruit BPM or third parties, and they may not be used without Recruit BPM’s prior written consent.
Customer may retain Recruit BPM to perform professional services (“Professional Services”) as the parties may agree upon in writing in the form of a statement of work or work order or other writing (“Work Order”) signed by both parties. Recruit BPM will use reasonable efforts to carry out the Professional Services stated in the Work Order and to provide any resulting functionality in the Service made available online to Customer and Customer’s Users. Unless otherwise agreed in writing, Professional Services and the results thereof are made available “AS IS.” Unless otherwise agreed in writing, Professional Services are provided by Recruit BPM on a time and materials basis at Recruit BPM’s then applicable rates and subject to such deposit or advance payment as Recruit BPM may require. Invoices for Professional Services are payable within 15 days of invoice date. Maintenance and support of code or functionality created by means of Professional Services will likewise be on a Work Order basis unless otherwise agreed in writing. The code and functionality made or provided under any such Work Order and all interests therein, including copyrights, shall be Recruit BPMâ€™s property. Access to the results of Professional Services will be available as part of the Service during the Term unless otherwise agreed in writing. Customer agrees that it will communicate with Recruit BPM’s technical staff through Customer’s Support Contact with regard to each Professional Services implementation.
The confidentiality provisions set out in the Agreement supersede any prior non-disclosure agreement entered into between the parties.
Subject to the terms and conditions of the Agreement, Customer grants to Recruit BPM a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonable to provide and maintain the Service for Customer’s use. Recruit BPM will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use.
Recruit BPM warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via Recruit BPMâ€™s web site. Customer agrees to report material non-conformities in writing solely through its Account Contact or Support Contact to Recruit BPM customer support. Recruit BPM will provide, as Customerâ€™s exclusive remedy, commercially reasonable maintenance to resolve such non-conformities. Recruit BPM’s warranty does not extend to third party services or products that are accessed by means of the Service; Recruit BPM will, however, make reasonable efforts to request the applicable third parties provide corrections for such products and services.
Each party represents and warrants that it has the legal power and authority to enter into the Agreement. Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service and that Customerâ€™s billing information is and at all times will be correct.
WARRANTIES SPECIFIED EXPLICITLY IDENTIFIED IN THIS SECTION 4 ARE THE SINGULAR AND SELECT WARRANTIES OBTAINABLE BY RECRUIT BPM. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED BY RECRUIT BPM OR ITS LICENSORS, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICE AND CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ARE FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMERâ€™S PURPOSES. NEITHER RECRUIT BPM NOR ITS LICENSORS WARRANT THAT USE OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. RECRUIT BPM IS NOT RESPONSIBLE FOR SOFTWARE USE BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET OR ANY OTHER NETWORK.
Recruit BPM will protect at its expense, compensate, and hold Customer harmless from and against all liability to third parties for any settlement amount or final judgment award (“Losses”) arising from any third party claim, suit, action, or proceeding brought against Customer arising from the infringement of any copyright, patent, trademark, or misappropriation of a trade secret by the Service or Content (other than that due to Customer Data). In case of such a claim, Recruit BPM may, in its preference, acquire a license that will defend Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it reasons such remedies not feasible, Recruit BPM may dismiss the Service and the Agreement without fault, providing that in case of such a termination, Customer shall receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. This Section states Customerâ€™s sole and limited remedies for encroachment or claims alleging infringement.
Customer shall protect, guarantee, and hold Recruit BPM harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data from Recruit BPM, including, without limitation, prompt payment to Recruit BPM of all costs (including attorneysâ€™ fees) incurred by Recruit BPM as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Recruit BPM for its staff time in responding to such third party subpoena or compulsory legal order or process at Recruit BPM then applicable hourly rates.
In case of any claim that is subject to indemnification under the Agreement, the party that is indemnified (“Indemnitee”) shall provide the indemnifying party (“Indemnitor”) judiciously prompt notification of the pertinent claim. Indemnitor shall defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under the Agreement. Each party shall cooperate in good faith with the other to facilitate the defense of any such claim and shall tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
Customer shall defend at its expense, indemnify, and hold Recruit BPM harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding against Recruit BPM which arise out of or result from a claim by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Section 2.2, 2.11 or 2.12 above.
EXCEPT WITH REGARD TO CUSTOMER’S PAYMENT OBLIGATIONS AND WITH REGARD TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE LICENSE FEES DUE FOR TWELVE (12) MONTH PERIOD MEASURED BY THE MONTHLY PAYMENT OBLIGATION AT THE TIME OF THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT IN REGARD TO CUSTOMER BREACH OF SECTION 2 OF THE AGREEMENT AND SECTION 2.2, 2.11 OR 2.12 OF THESE TERMS OF SERVICE, IN NO EVENT WILL EITHER PARTY (INCLUDING, AS TO RECRUIT BPM, ITS LICENSORS) BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE).
In the Event of Breach
Recruit BPM, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate the Agreement if Customer materially breaches the Agreement and such breach has not been cured within 5 business days of notice of such breach.
Customer agrees that Recruit BPM may, with commercially reasonable notice to Customer, suspend access Customer’s access to the Service if Recruit BPM reasonably concludes that Customer is using the Service to engage in denial of service attacks, sending spam or other UCE, or using the Service to engage in illegal activity, and/or Customer’s use of the Service is causing immediate, material, and ongoing harm to Recruit BPM or others. In the extraordinary event that Recruit BPM suspends Customer’s access to the Service, Recruit BPM will use commercially reasonable efforts to resolve the issues causing the suspension of Service as soon as is reasonably feasible. Customer agrees that Recruit BPM shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances defined in this Section.
In addition to other applicable remedies, Recruit BPM reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate the Agreement, and/or withhold Customer Support and Professional Services, upon 5 days’ email notice, if Customer’s account becomes delinquent (falls into arrears). Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all Recruit BPM’s expenses of collection or enforcement of the Agreement, including reasonable attorneys’ fees and court costs. Customer will be charged all applicable fees, including fees for all Users then authorized, during any period of suspension. Email notice under the Agreement will be deemed given if addressed to the email address currently on file.
In the event that the Agreement is terminated (for any reason), Recruit BPM will make available one (ODBC-compliant) backup of the Customer Data. Customer agrees and acknowledges that Recruit BPM has no obligation to retain the Customer Data, and may delete such Customer Data that remains more than 60 days after termination.
Recruit BPM reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof). In the event that Recruit BPM modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Recruit BPM, at Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Recruit BPM is unable to substantially restore such functionality with reasonable effort, Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the license fees paid under the Agreement for the terminated portion of the Term, to the extent that Customer has paid license fees in advance. Customer acknowledges that Recruit BPM reserves the right to discontinue offering the Service at the conclusion of Customer’s then-current Term. Customer agrees that Recruit BPM shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section.
Recruit BPM may amend these Terms of Service in its discretion by providing 30 days’ advance notice to Customer’s Support Contact by any of the means of notice specified in Section 10 below.
Recruit BPM may give either (a) as a note on a screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the email address provided for the Support Contact or (c) by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail) or 12 hours after sending (if provided by electronic means), or, if earlier, when received. Customer may give notice to Recruit BPM (deemed given upon receipt) at any time by any of the following: letter sent by confirmed facsimile to Recruit BPM at the following fax number: (9525486620); letter delivered by nationally recognized courier service or first class mail to: Recruit BPM, Inc. addressed to the attention of: Chief Financial Officer. Recruit BPM may, by giving notice, change its applicable address or other contact information.
The Agreement shall inure to benefit and bind the parties hereto, their successors and assigns. Neither party may assign the Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor’s line of business or assets to which the Agreement relates.
Customer consents to Recruit BPM’s disclosure of the fact that Customer is a paying customer of Recruit BPM. During the Term, Recruit BPM may list Customer’s name and logo on Recruit BPM’s web site.