Subscription Agreement

This Talentify Subscription Agreement, including its exhibits ("Subscription Agreement"), governs any order form executed by the customer identified in that order form (“Customer”) and the company identified in that order form (“Talentify”). This Subscription Agreement, the applicable order form, and any other incorporated terms, comprise the complete understanding between the parties on the subject matter (“Agreement”).

1. ORDERING

1.1 Ordering Services. Customer may access and use the subscription and advertising services offered via Talentify’s websites to the extent and for the term stated in the order form (“Services”). Customer may allow its Affiliate to order Services under the terms of this Subscription Agreement only if Customer informs Talentify in writing of the specific Affiliate authorized to do so. That authorized Affiliate will be (a) deemed a “Customer” for that order only; and (b) jointly and severally liable with Customer for its use of the Services and compliance with the Agreement. “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with, a party. “Control” means direct or indirect ownership of (i) more than 50% of an entity’s voting interest; or (ii) the right to receive more than fifty percent (50%) of an entity’s profits.

1.2 Payment and Taxes. Customer will pay the fees for the Services in accordance with the payment terms stated in the order form. Customer’s purchases are non-cancelable and payment for Services is non-refundable, except as otherwise stated in this Subscription Agreement. Customer will pay all federal, state, and local taxes, imposed on Customer’s purchase of Services. All taxes payable by Customer will be separately stated and exclusive of the fees. Customer will have no liability for taxes that are statutorily imposed on Talentify.

2. RESPONSIBILITIES

2.1. Use of Services. Talentify shall provide Customer access to the Services in accordance with the Agreement. Customer will use the Services solely for its intended purpose, and as outlined in this agreement and Talentify’s order form. Unless otherwise stated in the Agreement, only Customer-designated employees and contractors are authorized to use the Services (“Customer User”) and must be a Member when accessing Services through Talentflux.com. A “Member” is an individual who signs-up to use Talentify’s services under Talentify’s user agreement, currently available at https://talentflux.com/terms-of-use, as amended by Talentify from time to time (“User Agreement”). The terms of the User Agreement are incorporated into this Subscription Agreement. Customer will ensure that Customer Users comply with the User Agreement when using the Service within the scope of their employment. Customer may only use the Services for Customer’s internal use. Customer will not provide access to the Services to any third party, except that Customer may allow its Affiliates to access and use the Services if Customer is fully liable for its Affiliates’ use of the Services and compliance with the Agreement. Customer will promptly and without undue delay notify Talentify upon learning of any unauthorized use of the Services or any other breach of security related to the Services. Customer may use information about Members that it collects in connection with its use of the Services only as needed for use of the Services and as expressly permitted in this Subscription Agreement. Talentify may communicate to Customer Users about the Services, including how to use the Services.

2.2 Provision of Services. Customer is responsible for providing Talentify with the information necessary for Talentify to provide the Services. Customer is solely responsible for the accuracy, quality and legality of such information. If a Service must integrate with third-party systems or applications used by Customer (e.g. an applicant tracking system, “ATS” or a customer relationship management system, “CRM”), Customer is solely responsible for any integration and related activities. Talentify disclaims any and all liability for the use of third-party systems or applications residing outside Talentify’s systems.

2.3 Data Protection. If Talentify processes Personal Data (as defined in the Talentify Data Protection Policy) on behalf of Customer pursuant to this Agreement, then Talentify and Customer will comply with the terms of the Talentify Data Protection Policy, (“DPP”), the terms of which are incorporated into this Subscription Agreement.

2.4 Compliance with Laws. The parties will comply with all applicable Data Protection Requirements and all international, federal, state, provincial and local laws relating to (a) corruption practice, bribery, and acts contrary to the public administration including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq.; and (b) discrimination against employees or job applicants based on race, color, religion, sex, national origin, veteran status or disability.

3. CONFIDENTIAL INFORMATION

3.1 Definition. “Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, non-public Personal Data, etc.). Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the Effective Date, through no fault of recipient; (d) was received by recipient from a third party without any confidentiality obligation; or (e) was independently developed by recipient without breach of this Section 3.

3.2 Limited Use and Non-Disclosure. Recipient will (a) use Confidential Information only for the purposes of furthering the business relationship between the parties; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except (1) to Affiliates or employees, students, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this Subscription Agreement or (2) as required by law; and (d) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, to the extent applicable, unless authorized in writing by discloser.

4. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

No right, title or interest in any intellectual property right transfers to the other party, except for the limited rights stated in the Agreement. Customer is not obligated to provide Talentify or its Affiliates with any suggestions, enhancement requests, or other feedback about the Services or related technology. However, if Customer does provide any feedback to Talentify, Talentify may use and modify it without any restriction or payment.

5. TERM AND TERMINATION

5.1 Term. This Subscription Agreement is effective on the date the first order form is executed by Customer and Talentify (“Effective Date”) and remains in effect until terminated.

5.2 Termination and Suspension. Either party may terminate this Subscription Agreement or an order form if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving notice of the breach. Talentify may suspend Customer’s access to the Services if Customer is in breach of the Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. If all order forms under this Subscription Agreement have expired or been terminated, then either party may terminate this Subscription Agreement for convenience by providing written notice to the other party.

5.3 Effect of Termination. Termination of this Subscription Agreement or an order form will not relieve Customer from its obligation to pay Talentify any fees stated in an order form, excluding termination by Customer for Talentify’s uncured material breach of this Subscription Agreement. If Customer terminates this Subscription Agreement or an order form because of Talentify’s uncured material breach, Talentify will refund a pro-rata share of any pre-paid fees under the applicable order form. Customer will notify Customer Users that their access to the applicable Services has terminated and Talentify may remove or discard all content that Customer uploaded or otherwise made available to Talentify in accordance with Talentify’s DPP and policies. Termination of an order form does not terminate this Subscription Agreement; however, termination of this Subscription Agreement will result in the immediate termination of all order forms. The provisions of this Subscription Agreement that by their nature extend beyond the termination of this Subscription Agreement will survive termination.

6. LIMITED WARRANTY; DISCLAIMER

Talentify makes no representation or warranty about the Services, including any representation that the Services will be uninterrupted or error-free. To the fullest extent permitted under applicable law, Talentify disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose.

7. INDEMNIFICATION

7.1 Indemnification Scope. Talentify will defend and indemnify Customer, its Affiliates, and their respective directors, officers and Customer Users from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the Services’ infringement of a third party’s intellectual property right; or (b) Talentify’s material breach of the Agreement. Customer will defend and indemnify Talentify, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (y) the infringement of a third party’s intellectual property right by any content, data or other information uploaded into Talentify’s system or otherwise provided by Customer; or (z) Customer’s material breach of the Agreement.

7.2 Indemnification Procedures. Each party will promptly notify the other in writing of any third party claim. The indemnifying party will (a) control the defense of the claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a claim. The indemnified party will (y) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (z) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.

8. LIMITATION OF LIABILITY

8.1 Damages Waiver. Subject to Section 8.3, to the fullest extent permitted by law, neither party, including its respective Affiliates, will be liable to the other in connection with the Agreement for lost profits or lost business opportunities, loss of data, or any indirect, incidental, consequential, special or punitive damages. Talentify will be liable for Personal Data Breaches (as defined in Section 1 of the DPP) that result from Talentify’s negligence, gross negligence, intentional misconduct or fraud.

8.2 Liability Cap. Subject to Section 8.3, neither party, including its respective Affiliates, will be liable to the other in connection with the Agreement for an amount that exceeds the total fees paid or payable to Talentify during the 12-month period before the event giving rise to the liability.

8.3 Exclusions. The limitations of liability stated in sections 8.1 and 8.2 do not apply to a party’s (a) confidentiality or indemnification obligations; (b) liability for fraud, gross negligence or intentional misconduct; (c) liability for death or personal injury; (d) violation of the other party’s intellectual property rights; or (e) liability for a Personal Data Breach caused by Talentify’ negligent acts or omissions.

9. DISPUTE RESOLUTION

If an issue arises under the Agreement and the applicable order form was signed by (a) Talentify inc., then the Agreement is governed by the laws of the State of Delaware, and any action or proceeding (including those arising from non-contractual disputes or claims) related to the Agreement will be brought in a federal court in the State of Delaware; Each party irrevocably submits to the jurisdiction and venue of the applicable courts. The prevailing party in any litigation may seek to recover its legal fees and costs.

10. MISCELLANEOUS

If a conflict exists between any of the terms in the Agreement, then the order form will govern, followed by the DPP, this Subscription Agreement, and finally the User Agreement. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding of any person relating to the subject matter of the Agreement, other than as stated in the Agreement. Notices will be provided in writing and delivered by commercial overnight courier to the address of the other party stated on the order form, unless otherwise stated in the Agreement. Notices are effective on the date of delivery as indicated in the records of the courier. The Agreement does not create a partnership, agency relationship, or joint venture between the parties. Neither party has the power or authority to bind the other or to create any obligation or responsibility on behalf of the other. Under no circumstances will any employee of one party be deemed to be the employee of the other. Neither party will assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except to an Affiliate or a successor that is not a competitor of the non-assigning party, made in connection with a merger or sale of all or substantially all of a party’s assets or stock. Any attempted assignment in violation of this restriction is void. The Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Customer will provide Talentify written notification if Customer is purchasing Services through a Talentify approved agency. If Customer is an agency binding a client under this Subscription Agreement, Customer (a) represents and warrants that it has the authority to bind the client under this Subscription Agreement; (b) will notify Talentify in writing of the name and address of its client that will access and use the Services; and (c) remains jointly and severally liable for all of Customer’s obligations under the Agreement. If the Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. Talentify may remotely monitor Customer’s use of the Services to ensure compliance with the Agreement. If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intentions and the remaining provisions will not be affected. The parties may amend the Agreement only in a written amendment signed by both parties, except for the User Agreement and Service Terms, which may be modified in accordance with their terms. If this Subscription Agreement will be executed then it can be executed electronically and in counterparts, each of which is deemed to be an original and together comprise a single document. Each party represents and warrants that the individual binding a party under this Subscription Agreement is authorized to do so.