PRIVILEGED & CONFIDENTIAL
April 10, 2019
In this Agreement, “Subscriber” shall refer to you, unless you are accepting on behalf of a company in which case “Subscriber” shall mean that organization; and “Fusion” or the “Licensor” shall refer to Fusion Recruiting Labs, Inc., a New Jersey corporation with a principal place of business at 280 Highway 35 South, Ste. 302 Red Bank, NJ 07701. Fusion and Subscriber are each referred to in this Agreement as a “Party” and collectively as the “Parties.” In consideration of the terms and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.
Additional Terms and Policies.
This Agreement incorporates the following additional terms, policies and agreements:
Table of Contents
1: SUBSCRIBER’S RESPONSIBILITIES AND GRANT OF LICENSE
2: FUSION’S RESPONSIBILITIES AND GRANT OF LICENSE
3: SOFTWARE AS A SERVICE – FEES
4: REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
6: LIMITATION OF LIABILITY
7: TERM, RENEWAL AND TERMINATION
9: PRIVACY AND DATA
10: CONFIDENTIAL INFORMATION
11: FORCE MAJEURE
12: ENTIRE AGREEMENT; HEADINGS
13: NOTICE; MISCELLANEOUS PROVISIONS
15: GOVERNING LAW
16: RELATIONSHIP OF THE PARTIES
17: NO THIRD PARTY BENEFICIARY
19: NO WAIVER
“Affiliate” means any company or other entity worldwide, including without limitation corporations, partnerships, joint ventures, and limited liability companies, in which the Subscriber directly or indirectly holds at least a 20% ownership, equity, or financial interest.
“Applicant” means any individual, that uses the Subscriber Sites and Property, by searching through Subscriber Content and applying for posted jobs.
“Enhancements” means any derivative works, improvements, or modifications made by the Subscriber to the Subscriber Content.
“Intellectual Property Rights” means any rights, titles, and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity, and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic.
“Order Form” means the document signed by the Parties from time to time describing the Subscription Services that Fusion will be providing to Subscriber.
“Subscriber Brand Features” means all trademarks, service marks, logos and other distinctive brand features of the Subscriber that are provided by Subscriber to Fusion under this Agreement.”
“Subscriber Content” means all of the content and updates, software, and methods and functionality related to such content, provided or made available by Subscriber to Fusion, including but is not limited to career pages, job listings, descriptions and other job related information. The term “Subscriber Content” includes any audio and audiovisual materials, data, images, files, hypertext links, scripts and Enhancements, provided or made available by the Subscriber to Fusion pursuant to this Agreement.
“Subscriber Property” or “Subscriber Properties” means the desktop sites owned and controlled by the Subscriber including but not limited to worldwide properties, software, products, services, sites and pages, accessible in whole or in part through the Internet, whether presently existing or later developed, that are developed in whole or in part by or for the Subscriber or its Affiliates.
Fusion is the owner of a software platform and software that enables Subscriber to manage the job posting distribution to supported network providers; the application experience that allows Applicants to seamlessly fill out and from a mobile device; and submit the Applicant information via viewable database “Subscription Services”).
SECTION 1: SUBSCRIBER’S RESPONSIBILITIES AND GRANT OF LICENSE
- Condition Precedent. During the Term of this Agreement,Subscriberagrees to provide job postings to Fusion in the required format.
- Subscriber Cooperation, Assistance, Updates and Enhancements. Subscriber will provide on-going assistance to Fusion with regards to technical, administrative, and service-oriented issues relating to the utilization, encoding, transmission, and maintenance of the Subscriber Career Pages, as Fusion may reasonably request. Subscriber will ensure that the Subscriber Content is timely, accurate, comprehensive, updated regularly and delivered to the Subscriber’s Sites in accordance with this Agreement, including, without limitation, any formatting, deliveryandtechnical specifications. In addition, Subscriber also must provide Fusion with reasonable prior notice of any significant Enhancements that generally affect the appearance, updating, delivery, or other elements of the Subscriber Content. Subscriber acknowledges and agrees that any material Enhancements may require Fusion to undertake significant development efforts that deviate from the original understanding of the parties, in which case, Subscriber shall be responsible for all fees related to such additional efforts by Fusion in which case Subscriber shall be responsible for all fees related to such additional efforts by Fusion.
- Grant of License by The Subscriber. Subject to the terms and conditions hereunder, the Subscriber grants to Fusion during the Term a non-exclusive, worldwide, fully paid-up right and license to use, copy, encode, store, archive, distribute, transmit, and publicly display the Subscriber Content and Subscriber Brand Features only in connection with the Subscriber graphic link specified herein. Fusion is authorized to create co-branded mobile URLs in order to integrate and power Subscriber’s Career Pages and Content.
- Subscriber’s Service Level. Subscriber shall use commercially reasonable efforts to ensure that the feed or API for the Subscriber’s Content shall be fully functional, timely and accessible by Fusion. Subscriber shall further use commercially reasonable efforts to ensure that the Subscriber Content from the Subscriber Sites will be delivered without any interruption.
SECTION 2: FUSION’S RESPONSIBILITIES AND GRANT OF LICENSE
- Grant of License by Fusion. Fusion grants to the Subscriber during the Term and subject to timely and full payment of all fees set forth herein, a non-exclusive, royalty-free right and license to access, use, publicly display and publicly perform the Subscription Services in whole or in part via any means, including the Internet. In addition, a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible format, publicly display and publicly perform the Fusion Brand Features in connection with the marketing and promotion of the Subscriber Sites only.
- Hosting; Performance and Operating Standards for Subscriber’s Sites. Fusion will manage, operate and maintain the integration of the Subscriber Career Pages and the Subscription Services, including the necessary network capabilities and application support (“Hosting”), and shall be responsible for providing and maintaining all software, hardware, network connectivity within the Hosting location as well as to and from the Internet, power, security and logical infrastructure reasonably required for such Hosting. Fusion agrees that Subscription Services will collect and make available User information to the Subscriber.
- Traffic Flow and Minimum Requirements. Fusion must ensure that all traffic from Subscriber Sites is either kept within the Subscriber Sites or channeled back from where the traffic originated. Fusion must ensure that navigation back to the Subscriber Property from Subscriber Sites, whether through a particular pointer or link, the “back” button on an Internet browser, the closing of an active window, or any other return mechanism, shall not be interrupted by Fusion through the use of any intermediate screen or other device, including without limitation, through the use of any pop-up window or any other similar device. In addition, Fusion will ensure that the Users visiting any of the Subscriber Sites will be able to view all of the Fusion Content. Furthermore, Fusion agrees that at no time shall the Fusion Content or the Subscriber Sites display, exhibit or feature any third party URLs, links, banners or other advertisements that will send Users to third party sites outside of Subscriber’s Properties.
- Fusion will provide the support services described on the last page of these Terms.
SECTION 3: SOFTWARE AS A SERVICE – FEES
3.1 Subscription Fee.
Subscriber will pay Fusion a subscription fee (“Subscription Fee”) as set forth in the Order Form. Payments shall be nonrefundable and irrevocable except as otherwise provided in this Agreement.
Any amounts payable by Subscriber hereunder which remain unpaid 31 days after the due date shall be subject to late penalty fees equal to 1.5 % per month from the due date until such amount is paid. Subscriber shall pay all such interest and reasonable costs of collection, including but not limited to, reasonable attorney’s fees and court costs. Fusion’s payment address is:
Fusion Recruiting Labs, Inc.
Attn: Accounts Payable
280 Highway 35 South, Ste. 302
Red Bank, NJ 07701
SECTION 4: REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
- Representations and Warranties.
- Due Authorization; No Conflict. Subscriber warrants that (i) it has the power and right to enter into and perform according to the terms of this Agreement; and (ii) it has not and will not during the term of this Agreement do or authorize or permit to be done any act or thing which may be in any way inconsistent with or which may in any way curtail, impair, diminish or derogate from any rights granted to Fusion under this Agreement.
- Subscriber Warranties. Subscriber represents and warrants that, as of the Effective Date and continuing throughout the Term, (i) Subscriber has the full rights to perform the acts and grant the rights required of it under this Agreement and (ii) the Subscriber Content and the Subscriber’s or its Affiliates’ exercise of any license granted to them herein, does not infringe the rights of any third party, including without limitation any Intellectual Property Rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, or any other rights of third parties not specifically identified in this Agreement; or result in any tort, injury, damage or harm to any third party.
- No Other Licenses. No licenses are granted by either Party except those expressly set forth in this Agreement and all rights and licenses not expressly granted in this Agreement are reserved by the Parties. Nothing in the Agreement restricts either Party’s right to exercise any rights or licenses received from any third parties or to grant other rights or licenses to any third parties.
- Disclaimers. Fusion does not warrant that the SUBSCRIPTION Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the SUBSCRIPTION Services OR THE SECURITY OF SUBSCRIBER’S OR USERS’ DATA. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SUBSCRIPTION SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND FUSION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Assumption of Risk. FUSION has no special relationship with or fiduciary duty to Subscriber. Subscriber acknowledges and agrees that FUSION has no control over and has no duty to take any action regarding and shall have no liability for acts, faults or omissions of any third party SUPPORTED NETWORK PROVIDERS which may be used to advertise job openings OR OTHERWISE RENDER THE SUBSCRIPTION SERVICES (including, without limitation, suspension or termination of fusion’s connections, or faults in or failures of their apparatus or network), in the jurisdictions in which it operates.
SECTION 5: INDEMNIFICATION
The Subscriber must, at its own expense, indemnify, defend and hold harmless Fusion, its Affiliates and each of their respective officers, directors, employees, representatives, licensees, and agents from and against and in respect of all claims, liabilities, allegations, suits, actions, investigations, judgments, deficiencies, settlements, inquiries, demands, or other proceedings, whether formal or informal, brought against Fusion, its Affiliates or any of their respective officers, directors, employees, representatives, licensees, or agents, as well as from and against and in respect of all damages, liabilities, losses, costs, charges, fees, and expenses, including without limitation reasonable legal fees and expenses, as and when incurred, relating to (a) the breach by Subscriber of any of its representations or warranties in this Agreement; (b) any claim or allegation that the Subscriber Content or the Subscriber Brand Features infringes any Intellectual Property Right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party. Fusion does not intend, nor will be required, to edit or review for accuracy or appropriateness any of the Subscriber Content; (c) Subscriber’s use or access to the Applicant data, including but not limited to any loss of such data except where such loss is due to any acts or omissions of Fusion.
SECTION 6: LIMITATION OF LIABILITY
EXCEPT FOR SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS IN SECTION 5 OR FOR ANY BREACH OF SECTION 4, UNDER NO CIRCUMSTANCES WILL FUSION, THE SUBSCRIBER, OR ANY AFFILIATE BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. FOR ANY BREACH OF SECTION 4, IN NO EVENT WILL FUSION’S, TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY THE SUBSCRIBER TO FUSION DURING THE 12 MONTH PERIOD PRECEDING THE ACTION. FURTHER, NEITHER FUSION NOR ITS AFFILIATES WILL BE LIABLE FOR ANY LOSS OF DATA OR ANY INTERRUPTION OF ANY THE SUBSCRIBER PROPERTY DUE TO ANY CAUSE. THE PARTIES AGREE THAT THIS LIMITATION IS A FAIR ALLOCATION OF RISK.
SECTION 7: TERM, RENEWAL AND TERMINATION
- Term and Renewals. This Agreement is effective as of the “Effective Date” as stated on the Order Form.
- The initial term shall be as stated on the relevant Order Form and shall be automatically renewed for additional one-year periods (collectively, the “Term”), unless either party provides notice of termination at least sixty (60) days prior to the end of the then-current term.
- Termination. The Agreement may be terminated for convenience during the Term by either party upon thirty (30) days written notice to the other party, or immediately for the following: (a) has a receiver or similar party appointed for its property, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy; (b) engages in any unlawful business practice related to that party’s performance under the Agreement; or (c) breaches any of its obligations under the Agreement in any material respect, which breach is not remedied within 30 days following written notice to the breaching party. Notwithstanding the preceding sentence, Fusion may terminate this Agreement, and have no further liability hereunder, in the event Subscriber fails to fulfill any of the obligations detailed in Section 1 of this Agreement and Subscriber fails to cure such breach within ten (10) days from receiving notice of breach from Fusion.
- Effect of Termination. Any termination pursuant to this Section will be without any liability or obligation of the terminating party, other than with respect to any breach of the Agreement prior to termination, and the parties will immediately cease representing to the public any affiliation between them in connection with the subject matter of the Agreement.
SECTION 8: OWNERSHIP
- By Subscriber. As between Subscriber on one hand and Fusion and its Affiliates on the other, Subscriber owns all right, title, and interest in the Subscriber mobile websites, Subscriber Properties, Subscriber Content and the Subscriber Brand Features (collectively “Subscriber’s IP”). Nothing in the Agreement confers to Fusion or an Affiliate any right of ownership in Subscriber’s IP.
- By Fusion. As between Fusion on one hand, and Subscriber and its Affiliates on the other, Fusion or its Affiliates own all right, title, and interest in the Fusion Brand Features and the Subscription Services and software, except for any Subscriber Content and the Subscriber Brand Features appearing in the Subscriber Properties. Nothing in the Agreement confers to the Subscriber any right of ownership in the Subscription Services or software used to provide the Subscription Services. Fusion and its Affiliates own any derivative works or improvements created under this Agreement and/or any Order Form that are based upon or that incorporate the Subscriber Content, excluding the Subscriber Content itself.
- Subscriber’s suggested improvements to and feedback regarding the Subscription Services are not Confidential Information (as defined below), and Subscriber grants to Fusion an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.
SECTION 9: PRIVACY AND DATA
9.2 Deletion of Subscriber Data. Notwithstanding the provisions of Section 9.1 and except as agreed by Fusion and Subscriber in writing, Fusion may periodically delete Applicants’ information. Further, data storage is not guaranteed by Fusion and Fusion shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Subscriber may incur relating to the loss or deletion of Applicants’ data.
SECTION 10: CONFIDENTIAL INFORMATION
SECTION 11: FORCE MAJEURE
Each party will be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures (“Force Majeure Event”). In the event a Force Majeure Event renders the Subscription Service unavailable for more than thirty (30) consecutive days, Subscriber may terminate this Agreement for cause upon written notice to Guardian and receive a refund of prepaid fees starting from the beginning of the period of unavailability due to the Force Majeure Event.
SECTION 12: ENTIRE AGREEMENT, HEADINGS
This Agreement constitutes the entire agreement between Subscriber and Fusion with respect to the Site and Subscription Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Subscriber and Fusion with respect thereto. The section and paragraph headings in this Agreement are for convenience of reference only and shall not affect their interpretation. No oral or written information or advice given by Fusion or its employees and other representatives will create any obligations or warranty on behalf of Fusion unless otherwise agreed in a writing signed by an authorized Fusion representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Subscriber, even if signed by the Parties after the date hereof, shall have no force or effect.
SECTION 13: NOTICES
All notices, requests, and other communications will be sent to the Subscriber contact detail provided at the time of the account set-up with Fusion, and if to Fusion at the physical and electronic mail addresses set forth for the Contact specified in the Agreement, or to any other addresses as either party may specify to the other in writing. Notice is made when received.
SECTION 14: ASSIGNMENT
This Agreement binds and inures to the benefit of each party’s permitted successors and assigns. Neither party may assign the Agreement, in whole or in part, without the other party’s written consent, except that: (a) Fusion may assign the Agreement without consent in connection with any merger, consolidation, any sale of all or substantially all of its assets, or any other transaction in which more than 50% of its voting securities are transferred; and (b) either Party may assign this Agreement to an Affiliate. Any attempt to assign or transfer the Agreement other than in accordance with this provision is null and void.
SECTION 15: GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without reference to its principles of conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable hereto. Without limiting the preceding language, Subscriber agrees to submit, for purposes of this Agreement, to the jurisdiction and venue of the state and federal courts located in the State of New Jersey. SUBSCRIBER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SUBSCRIPTION SERVICES OR FUSION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
SECTION 16: RELATIONSHIP OF THE PARTIES
The Parties are dealing with each other as independent contractors. Neither the Agreement, nor any terms and conditions contained in the Agreement create or constitute an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency between Fusion and the Subscriber. Neither Fusion nor the Subscriber may bind the other in contracts with third parties or make promises or representations on behalf of the other party without a signed written consent. Employees and agents of one party are not for any purpose employees or agents of the other.
SECTION 17: NO THIRD PARTY BENEFICIARY
The Agreement is made for the benefit of the Subscriber, its Affiliates, and Fusion only, and the Agreement is not for the benefit of any third parties.
SECTION 18: SEVERABILITY
If any provision or part of a provision in the Agreement is illegal, invalid, or unenforceable by a court or other decision-making authority, then the remainder of the provision will be enforced, and the validity of all other provisions in the Agreement will not be affected or impaired.
SECTION 19: NO WAIVER
Waiver of any one default will not waive subsequent defaults of the same or different kind, and no failure or delay of either party to exercise or enforce any of its rights under the Agreement will act as a waiver of those rights.
Support is available during Fusion’s normal business hours: 8:00 am – 8:00 pm EST Mon. through Fri. (excluding holidays).