Recruiter Machine: Enabling Teams To Grow Rapidly Through Proven Systems
Terms & Conditions
Recruiter Machine's Licensing Services General Terms & Conditions
1.1. "Affiliates" means entities that control, are controlled by, or are under common control with, a party to the Agreement.
1.2. “Agreement" means this Master Agreement, any Orders, addendum, statements of work, and schedules.
1.3. "Claim" means any third party claim, demand, suit or proceeding.
1.4. "Contractor" means third parties provided with Information or accessing the Services solely to support Customer.
1.5. "Documentation" means any manuals, instructions or other documents or materials that Recruiter Machine provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.6. "Information" means information Recruiter Machine collects, utilizes and compiles for business purposes.
1.7. "Insolvency Event" means: (i) if a party convenes a meeting of its creditors, make a voluntary arrangement or proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors; (i) if a party shall be unable to pay its debts; (i) if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any material part of the business or assets of a party; and/or (iv) if a meeting is convened for the purpose of considering a resolution, or other steps are taken for the winding up of any party (otherwise than for the purpose of an amalgamation or reconstruction) or for the making of an administration order or other appointment of an administrator in respect of a party, or any such order or appointment is made or effective resolution is passed to wind up a party.
1.8. "Intellectual Property Rights" means: (i) rights in, and in relation to, any patents, designs, design rights, trademarks, trade and business names (including all goodwill associated therewith), copyright, moral rights, trade secrets, database rights, domain names, topography rights and utility models, and including the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof and wherever in the world enforceable; and (i) all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and which may subsist anywhere in the world.
1.9. "License" means a non-exclusive, non-sublicensable, non-transferable, limited license.
1.10. "Losses" means all losses, costs and damages, including reasonable counsel fees.
1.11. "Non-Operational" means not used to support the on-going operations of Customer such that Information is not susceptible to use as a substitute for the Services licensed by Recruiter Machine.
1.12. "Order" means the ordering document for Services which may include particular Service-specific terms and conditions which has been accepted by Recruiter Machine in accordance with the terms of this Master Agreement.
1.13. "Representatives" means employees and vendors of the Recipient as further described in the Confidentiality Section of this Master Agreement.
1.14. "Services" means Information, Software, and other products and services, identified in Orders entered into from time to time
1.15. "Software" means computer programs or applications (including those accessed remotely), documentation, and media supplied to Customer from time to time by Recruiter Machine pursuant to an Order.
1.16. "Territories" means those countries or regions identified as such in a particular Order.
1.17. "Third Party Providers" means third parties that provide data, Software or services to Recruiter Machine for use in providing the Services to Recruiter Machine customers.
1.18. "Unauthorized Code" means any virus, trojan horse, worm, or any other software routines or hardware components designed to permit unauthorized access to disable, erase, or otherwise harm software, hardware, or data.
2. Scope of Agreement
2.1. Recruiter Machine shall, subject to the Agreement, make available to Customer the Services identified in Orders entered into from time to time by Recruiter Machine and Customer. Where there is a conflict between the terms of any Order and this Master Agreement, the terms of the Order shall control with respect to the Services set forth in such Order and solely to the extent of the conflict.
3.1. License Grant. Recruiter Machine grants to Customer a License to use and display the Information and Software constituting the Services specified in an Order, in the Territories and at the locations specified in that Order. Customer shall not set up or share any user IDs, passwords or Information with persons located outside of Customers’ Company and Territories identified in Orders. All rights not expressly granted hereunder are reserved to Recruiter Machine.
3.2. Term. Each License is for a term specified in the Order (*Initial Term*). The Initial Term and any renewal period for an Order or License constitute "the Term" for such Order or License
3.3. Affiliates of either party may execute Orders for Services on their own behalf governed by this Master Agreement as if such Affiliate had entered this Master Agreement itself (and any reference in the Order to the Master Agreement between a party and such Affiliate shall be deemed to mean this Master Agreement). For purposes of an Order, the parties executing the Order are deemed "Customer" or "Recruiter Machine", as applicable.
3.4. In the event a particular Order allows for Customer to make Services available to its Affiliates, Affiliates are bound by the same terms and conditions as Customer under the Agreement and Customer is responsible and liable for the Affiliates' acts and/or omissions which if done by Customer itself would be a breach of the Agreement.
4.1. Services are licensed for internal use only by Customer's employees with a need to know for the purpose identified in the Order. Customer will not provide Services to third parties, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information to generate any statistical, comparative, or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); or produce Information in legal proceedings, unless required by law. Where Customer receives a subpoena, summons, warrant or governmental order requiring it to produce any Information in legal proceedings, Customer shall (where permitted and practicable) promptly notify Recruiter Machine with details of the requirement and the Information it intends to produce, and (in) take all reasonable steps (a) to minimize the Information produced and (b) to obtain written confidentiality undertakings in its favor with respect to any Information produced.
4.2. Contractors. Notwithstanding the foregoing, Customer may allow Contractors to access and use the Services on behalf of Customer, provided that such Contractors use the Services in accordance with the Agreement. However, Customer must have written approval of Recruiter Machine prior to providing access to a Contractor for use outside of a Customer Controlled Environment. Customer is liable to Recruiter Machine for any use or disclosure by any Contractor of Services not for the benefit of Customer or, which, if done by Customer itself, would be a breach of the Agreement.
4.3. Customer will not attempt to reverse engineer any Services or access, use, modify, copy, or derive the source code of, any Software.
4.4. Customer will not systematically access or extract (or "scrape") Information from the Software (outside of the features available within the Software for exporting Information), including by the use of any engine, software, agent, spider, bot, or other device or mechanism.
4.5. Obligation to Delete. Upon expiration or termination of a License with respect to a particular Service, or upon receipt of a Service that is intended to supersede previously obtained Service(s), Customer will promptly delete or destroy all originals and copies of the Information and/or Software, as applicable, including all Information or Software provided to Contractors as permitted by Contractors Section hereof; and upon request, provide Recruiter Machine with a certification thereof. Notwithstanding the foregoing, Customer is granted a perpetual, limited, non-transferable and non-assignable license to retain copies of such Information in the form of hard copies or in Non-Operational systems, made in the normal course of business, solely for historical and/or archival (meaning disaster recovery, compliance, and as evidence of Customer's prior use of Information for regulatory compliance) purposes and not for any other continuing use ("Retained Information"). Customer is prohibited from using such Retained Information for any commercial purposes or as a substitute for the Services licensed by Recruiter Machine.
5.1. Customer will pay Recruiter Machine in accordance with each Order, or if not stipulated in the Order, within thirty (30) days of the relevant invoice date.
5.2. The fees do not include, and Customer will pay any applicable taxes relating to the Agreement (together with any applicable VAT), other than taxes based on Recruiter Machine income and franchise-related taxes.
5.3. A late payment charge of 1.5% per month may be applied to any outstanding and undisputed fees due from Customer to Recruiter Machine until paid. Without prejudice to any other rights or remedies of Recruiter Machine under this Master Agreement, an applicable Order or at law, if any fees remain unpaid for more than fifteen (15) days beyond their due date Recruiter Machine may upon giving Customer not less than forty-eight (48) hours notice (email is permitted) suspend access to, and/or use of, the Services to which the outstanding fees relate until paid, and/or (il) for more than thirty (30) days beyond their due date: (a) Recruiter Machine may (if applicable) cancel a relevant installment payment plan without prior notice whereupon all fees due shall become immediately payable in full; and/or (b) Recruiter Machine may upon giving Customer not less than forty-eight (48) hours' written notice cancel the Order to which the outstanding fees relate.
6. Warranties and Disclaimers
6.1. Recruiter Machine and Customer each represent and warrant that: (i) it has the right to enter into the Agreement; (ii) it has all necessary legal rights, title, consents and authority to disclose information to the other in accordance with the Agreement; (iii) in using and making available (as appropriate) the Services, it will comply with all applicable laws, regulations and directives.
6.2. Recruiter Machine represents that (i) the Information has been collected and compiled in accordance with applicable local, state, federal and international laws, rules or regulations; and (i) to Recruiter Machine's knowledge, the Information and Software, when used in
accordance with the Agreement, do not violate any existing third party Intellectual Property Rights in the Territories, as at the effective date of the applicable Order.
6.3. Recruiter Machine represents and warrants that all Services will be performed with commercially reasonable care and skill by qualified individuals.
6.4. Recruiter Machine represents and warrants that it has taken commercially reasonable efforts (i.e., scanning with current versions of antivirus software) to determine that the Software provided hereunder does not contain or will not contain any Unauthorized Code. In the event Recruiter Machine discovers or is notified of any such Unauthorized Code in the Software, Recruiter Machine shall promptly remove such Unauthorized Code in the Software.
6.5. Recruiter Machine represents and warrants that the Software will perform material functions and features as set forth in the Documentation.
6.6. EVERY BUSINESS DECISION, TO SOME DEGREE, REPRESENTS AN ASSUMPTION OF RISK AND THAT RECRUITER MACHINE IN FURNISHING INFORMATION DOES NOT ASSUME CUSTOMER'S RISK. RECRUITER MACHINE IS ONE TOOL IN CUSTOMER'S DECISION-MAKING PROCESSES. THEREFORE, ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS.
THOUGH RECRUITER MACHINE USES EXTENSIVE PROCEDURES TO KEEP ITS DATABASE CURRENT AND TO PROMOTE DATA ACCURACY, OTHER THAN AS EXPLICITLY STATED IN THE AGREEMENT, RECRUITER MACHINE AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, SATISFACTORY QUALITY, CONFORMITY WITH DESCRIPTION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RECRUITER MACHINE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE.
6.7. The foregoing warranties do not apply to the extent Customer modifies the Information or Software in any way, or combines the Information or Software with material not supplied by Recruiter Machine.
7. Protection of Proprietary Rights
7.1. The Information and Software are proprietary to Recruiter Machine and may include copyrighted works, trade secrets, patented or patentable inventions, databases or other materials created by Recruiter Machine at great effort and expense. Customer will not contest the validity of, or Recruiter Machine's Intellectual Property Rights in or ownership of, the Information or Software in any way. Customer will not remove Recruiter Machine's copyright and proprietary rights legend from any Information and Software which are so marked when received.
7.2. Neither party will use the trade names, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party.
prevent any ongoing impairment of Recruiter Machine's intellectual property rights. In the event of material breach of any other part of the Agreement by Customer or Recruiter Machine, the non-breaching party may terminate this Master Agreement and any impacted Orders if such breach is not cured within thirty (30) days of written notice of breach.
8.2. Termination of this Master Agreement will result in a termination of all outstanding Orders.
8.4. Either party may terminate this Master Agreement and any impacted Orders immediately by notice in writing if the other party suffers an Insolvency Event.
9. Limitation of Liability; Exclusions
9.1. NEITHER PARTY NOR RECRUITER MACHINE’S THIRD PARTY PROVIDERS WILL BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOST REVENUES, OR LOSS OF BUSINESS OPPORTUNITY OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
9.2. Subject to the foregoing:
9.2.1. Nothing in this Master Agreement or in any Order will operate to exclude or limit a party's indemnity obligations, or a party's liability for breach of Section 7.I or 7.2 (Compliance warranties) or for Customer's unauthorized use, disclosure, or distribution of Services.
9.2.2 EACH PARTY'S AND RECRUITER MACHINE'S THIRD PARTY PROVIDERS AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE (INCLUDING IN EACH CASE NEGLIGENCE) OR EACH PARTY'S LIABILITY TO THE OTHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS OWN OR THAT OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS NEGLIGENCE, OR FOR FRAUDULENT MISREPRESENTATION WILL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS, DAMAGE, INJURY, COST OR EXPENSE OCCURRED.
9.3.3. Each party shall defend or settle at its expense any Claim arising from or alleging breach of applicable law with respect to its provision or use of the Services, as applicable.
10. Choice of Law; Disputes
10.1. This Master Agreement and each Order (and any contractual and non-contractual obligations relating to or arising out of them) shall be governed by and construed in accordance with the laws of the State of Utah (without giving effect to its conflicts of law principles), and both parties
agree to submit to the exclusive jurisdiction of the state or federal courts located in Salt Lake City, Utah.
11.1. The Agreement constitutes the entire agreement between Recruiter Machine and Customer regarding the Services. All prior master agreements, both oral and written, between the parties on the matters contained in this Master Agreement are expressly cancelled and superseded by this Master Agreement. Any Order in effect as of the Effective Date of this Master Agreement, regardless of such Order's effective date, and notwithstanding anything to the contrary contained therein, shall be subject to this Master Agreement. Any amendments of or waivers relating to this Master Agreement must be in writing signed by the party, or parties, to be charged therewith, provided that in no event shall any terms or conditions included on any form of Customer purchase order apply to the relationship between Recruiter Machine and Customer hereunder.
11.2. The Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, either party may assign the Agreement to any of its affiliated companies or in connection with a merger or consolidation (so long as the assignment is
to the newly merged or consolidated entity) or the sale of substantially all of its assets (so long as the assignment is to the acquirer of such assets). Notwithstanding the foregoing, an assignment to a competitor of the non-assigning party will allow the non-assigning party to terminate the Agreement within sixty (60) days.
11.3. If any provision of this Master Agreement or an Order shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Master Agreement or an Order and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
11.4. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Master Agreement, an Order or at law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this Master Agreement or an Order this shall not operate as a waiver of any subsequent breach. All rights and remedies expressly granted in this Master Agreement or an Order are cumulative and do not affect any other rights or remedies which either party may otherwise have at law.
11.5. Recruiter Machine shall not be liable for any delay in performing, or failure to perform, any of its obligations under this Master Agreement or any Order if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances Recruiter Machine shall be entitled to a reasonable extension of the time for performing such obligations, provided that, if the period of delay or non-performance continues for thirty (30) consecutive days, Customer may cancel the affected Order by giving not less than thirty (30) days written notice to Recruiter Machine.
11.6. Email may be used for any communication and where otherwise expressly permitted in this Master Agreement or an Order. For the avoidance of doubt, e-mail notices shall amount to notice in writing or a written instrument for the purposes of Section 13.6.
11.7 Except as provided herein, a person who is not a party to this Master Agreement has no right under the Master Agreement or at law to rely upon or enforce any term of this Master Agreement.
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