Welcome to VOBIS, INC. D/B/A Vettd (“Company”). The Company Services (as defined below) available through the Company website available at www.vettd.com (the “Website”) is an online platform that enables users to [locate and filter potential job candidates] (the “Services”). By clicking on the “submit” button, completing the registration process, and/or using the Services, you personally, or if on behalf of the entity entering into this Agreement, that entity (you and the entity, each a “Subscriber”) (1) agree to and are subject to the following terms and condition for the Services (the “Agreement”), (2) you are of legal age to form a binding agreement with the company, and (3) you have the authority to enter into this agreement personally or on behalf of the company you have named as a subscriber, and to bind that entity to this agreement. If you do not fully agree to the terms of this Agreement, you are not authorized to access or otherwise use the Services.
1.1. To use certain features of the Services, Subscriber will need to create an account with Company (“Account”), and provide certain information as prompted by the Website.
1.2. Registration Data. Subscriber represents and warrants that: (a) all required registration information Subscriber submits is truthful and accurate; and (b) Subscriber will maintain the accuracy of such information. Company may suspend or terminate Subscriber’s Account in accordance with Section 8. Subscriber is responsible for maintaining the confidentiality of its Account login information and is fully responsible for all activities that occur under its Account. Subscriber agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use of Subscriber’s Account or any other breach of security. Company will not be liable for any loss or damage arising from Subscriber’s failure to comply with the above requirements.
2. Free Trial
2.1. General. If Subscriber has not yet purchased a subscription to the Services, but has obtained them for evaluation purposes (“Evaluation Services”), then the terms and conditions of this Section 2 shall apply and those sections in Sections 3, 7, and 8.1, do not apply. Reference Section 3 for terms applicable to purchased Services.
2.2. Evaluation License and Term. Subject to the terms and conditions of this Agreement (excluding Section 3), Company hereby grants Subscriber the right to use the Evaluation Services (including any software embedded therein) solely for the purposes of evaluating the performance and functionality of the Services in accordance with the technical materials provided by Company to Subscriber in hard copy or electronic form describing the use and operation of the Services (“ Documentation”), on a trial basis free of charge until the earlier of (a) the [fourteenth (14th)] day after Subscriber’s acceptance of this Agreement in accordance with the preamble, or (b) the start date of any Services purchased by Subscriber (the “ Evaluation Period”). The license in this Section 2.2 and all of Subscriber’s rights to use the Evaluation Services will terminate at the end of the Evaluation Period or immediately in the event that Subscriber breaches any material provision of this Agreement.
2.3. Feedback. During the Evaluation Period, Subscriber agrees to provide Company feedback regarding the use, operation, performance and functionality of the Service (“Feedback”). Such Feedback will include information about operating results, performance, known or suspected bugs, errors, or compatibility problems and user-desired features.
2.4. Disclaimer. ANY DATA SUBSCRIBER ENTERS INTO THE EVALUATION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE EVALUATION SERVICES BY OR FOR SUBSCRIBER DURING THE 14-DAY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS SUBSCRIBER PURCHASES A SUBSCRIBER TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES UPGRADED SERVICES, OR EXPORTS SUCH DATA BEFORE THE END OF THE 14-DAY FREE TRIAL PERIOD.
3. License; IP Ownership
3.1. License. If Subscriber has purchased the Services, then subject to the terms and conditions of this Agreement (excluding Section 2), Company grants Subscriber a non-exclusive, non-transferable, revocable license, during the Term, to (a) access and use the Service solely for its internal business purposes, and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Subscriber’s use of the Services.
3.2. During the Term, Company may update, correct and revise the Service as necessary or deemed desirable by Company (collectively, “ Updates”). Company will make such Updates, if any, available to Subscriber to the extent such Updates are generally made available to all similarly situated Company subscribers. For the purposes of clarity, Company is not obligated to produce any Updates.
3.3. Standard Support. Company will provide Subscriber with support in accordance with Company’s the current standard support policies and procedures as made available by Company from time to time. Subscriber is solely responsible for preparing its systems and facilities for accessing the Services.
4. Ownership; Restrictions
4.1. As between Company and Subscriber, the Services, software used to provide the Services (“Software”), Documentation (collectively, “Company Property”), and all worldwide intellectual property rights in each of the foregoing are the exclusive property of the Company and its suppliers. All rights in and to the Company Property not expressly granted to Subscriber in this Agreement are reserved by the Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Company Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
4.2. Restrictions. Subscriber will not, and will not permit others to (i) permit any third party to access and/or use the Service or Software; (ii) use the Software or Service for any purpose or in any manner other than as expressly provided in this Agreement; (iii) modify, translate, or create derivative works of, or decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code form or structure of, the Software, except as expressly permitted by applicable law; (iv) assign, sell, rent, lease, sublicense, distribute, grant a security interest in, or otherwise transfer the Software or Subscriber’s limited right to use the Software or Service; (v) remove, alter, or obscure any proprietary notices or labels on or in the Software; (vi) publish any performance or benchmark tests or analysis relating to the Software or Service; or (vii) build a product using similar ideas, features, functions or graphics of the Service. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Service or Software or any part thereof and all rights not expressly granted to Subscriber are reserved from Company.
5. Data; Limitations
5.1. Resume Data. Subject to the terms and conditions of this Agreement, the Company hereby grants to Subscriber a non-exclusive, non-transferable, license to use, access, collect and store Resume Data made available via the Services (“Data”), solely for Subscriber’s internal business purposes. Subscriber may not disclose, distribute, sell or resell any such Data. As used herein, “ Resume Data” means any data or information pertaining to potential job applicant(s), including, without limitation, names, phone numbers, email addresses, employment history, skills, and interests.
5.2. Subscriber Content. Subject to the terms and conditions of this Agreement, Subscriber hereby grants to Company the rights to use, access, collect and store Subscriber Content to provide the Services to Company and other users, and to improve the Service and produce and publish case studies or similar materials, provided such use and disclosure is solely on an anonymized and aggregated basis. “ Subscriber Content” means any images, works, documents, content and other materials uploaded by Subscriber to the Service. Subscriber understands and agrees that it is solely responsible for Subscriber Content, and Subscriber represents and warrants that the Subscriber Data and its disclosure by Subscriber to Company in accordance with the terms of this Agreement, does not violate any third-party rights, including rights of privacy, or any laws, regulations, or obligations imposed by any third party, and that the Subscriber Content is accurate, complete, timely, and true. Subscriber represents and warrants that it has provided all notices and obtained all consents necessary to provide the Subscriber Content, including any Resume Data therein, necessary to grant Company the rights granted herein.
5.3. Limitations. Subscriber acknowledges and agrees that: (a) Data has not been collected for, and is not intended to be indicative of any person’s credit worthiness, credit standing, credit capacity, or other characteristics related to such person’s manner or mode of living, as listed in Section 603(d) of the Fair Credit Reporting Act (“ FCRA”), 15 USC Section 1681a; and (b) Company shall not use any Data as a factor in establishing any person’s eligibly for credit or insurance used primarily for personal, family or household purposes, or other purposes authorized under Section 604 of the FCRA, 15 USC Section 1681b or any similar statute. Subscriber may not upload any debit or credit card information, bank account information, social security number, driver’s license information or government ID information. COMPANY WILL NOT HAVE ANY OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OR SECURITY OF SUCH INFORMATION.
5.4. Feedback. Subscriber hereby grants to Company a perpetual, irrevocable, worldwide, sublicensable and royalty-free right to use and otherwise exploit any Feedback in any manner. Company shall not disclose the name of Subscriber or name of any Subscriber employee to a third party in connection with any Feedback without the prior written permission of Subscriber.
6.1. Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Notwithstanding the foregoing, the Confidential Information of Company includes the Software and associated documentation, the Service, the Feedback, Data (excluding Subscriber Content), and information regarding any of the foregoing developed during the Term.
6.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. Notwithstanding the foregoing, nothing shall restrict Company from using, access, processing, collecting, disclosing, sharing or distributing any Resume Data that Company collects from publicly available sources (“Public Data”), and providing, processing, or disclosing Public Data even if that information is duplicative of Subscriber Content.
6.3. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
7. Fees. Subscriber agrees to pay all fees or charges to its Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Subscriber must provide Company with valid credit card (Visa, MasterCard or any other issuer accepted by us) (“Payment Provider”), or purchase order information as a condition to signing up for the Company Services. Subscriber’s Payment Provider agreement governs use of the designated credit card account, and Subscriber must refer to that agreement and not the terms of this Agreement to determine its rights and liabilities. By providing Company with its credit card number and associated payment information, Subscriber agrees that Company is authorized to immediately invoice its Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. Subscriber agrees to immediately notify Company of any change in its billing address or the credit card used for payment hereunder. Company reserves the right at any time to change prices and billing methods, either immediately upon posting notice on the Website or by e-mail delivery to Subscriber. All payments made are nonrefundable unless otherwise expressly stated herein or as required under applicable law. Company shall be entitled to (in addition to any other rights or remedies Company may have) discontinue the Service and suspend all Authorized Users’ and Subscriber’s access to the Service if any fees are overdue until such amounts are paid in full. Subscriber will be solely responsible for all applicable taxes or other governmental fees, charges, or assessments, other than taxes on Company’s net income, imposed on or resulting from the Service provided by Company under this Agreement. All payments will be made in U.S. dollars. Subscriber shall be responsible for all the costs associated with Subscriber’s use of the Software via the Service.
8. Term and Termination
8.1. Term and Termination. Except as otherwise specified in the applicable purchase order, this Agreement shall commence on the date Subscriber accepts this Agreement in accordance with the preamble and shall remain in effect for a period of [one (1) year] (the “ Initial Term”) unless terminated earlier as set forth below. After the expiration of the Initial Term, this Agreement [will automatically renew] for successive [one (1) year] periods (each, a “Renewal Term” and together with the Initial Term, the “ Term”). Either party may terminate this Agreement immediately upon notice to the other party if the other party breaches a material provision of this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. If the Software or Service become, or Company believes may become, the subject of any claim, suit or proceeding alleging infringement of any intellectual property right, or otherwise restricted or prohibited, Company may terminate this Agreement immediately upon notice to Subscriber. In addition, Company may terminate this Agreement in the event a case or other proceeding it commenced by or against Subscriber in any court of competent jurisdiction seeking relief under the U.S. Bankruptcy Code or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or adjustment of debts, the appointment of a trustee, receiver, custodian, liquidator or the like of Subscriber, or of all or any substantial part of the assets, domestic or foreign, of Subscriber, and such case or proceeding shall continue undismissed or unstayed for a period of sixty (60) consecutive days, or any order granting the relief requested in such case or proceeding against Subscriber shall be entered. Subscriber’s signature on this Agreement authorizes Company to perform any credit check deemed necessary with respect to Subscriber.
8.2. Effects of Termination or Expiration. Upon expiration or termination of this Agreement, the licenses granted hereunder shall terminate effective immediately and, (a) Subscriber shall promptly discontinue use of the Software, Service, and any other Company Confidential Information; (b) the Receiving Party shall promptly return, or destroy, at the Receiving Party’s expense, any Confidential Information (including all print copies thereof) of the Disclosing Party in the Receiving Party’s possession or control; and (c) certify that the Receiving Party has complied with the foregoing requirements.
9. Disclaimer. Subscriber understands and agrees that the outputs, deliverables and results provided to Subscriber via the Service are wholly dependent upon Public Data as well as the actions, selections, and inputs provided or made by Subscriber via the Service. Accordingly, Company does not warrant that the Software, Data or the Service will meet Subscriber’s requirements, operate without interruption, or be error free. Except as expressly provided in this Section 9, the Software and Service are provided “as is” (with all faults) and the entire risk as to satisfactory performance, accuracy, and effort is with Subscriber. Without limiting the foregoing, Company and its suppliers specifically disclaim any and all warranties, whether express, implied, or statutory, including the warranties of title, merchantability, fitness for a particular purpose, non-infringement, accuracy, and quiet enjoyment.
10. Limitation of Liability
10.1. Types of Damages. To the extent legally permitted under applicable law, neither Company nor its suppliers shall be liable to Subscriber for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature, including, but not limited to damages or costs due to loss of profits, data, revenue, goodwill, production or use, business interruption, procurement of substitute goods or services, or personal or property damage arising out of or in connection with Company’s performance hereunder or the use, misuse or inability to use the Service, documentation, Data, or other services hereunder, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if Company has been notified of the likelihood of such damages.
10.2. Amount of Damages. The Maximum liability of Company arising out of or in any way connected to this Agreement shall not exceed the fees paid by Subscriber to Company during the six (6) months preceding the act, omission or occurrence giving rise to such liability. Nothing in this Agreement shall limit or exclude Company’s liability for gross negligence or intentional misconduct of Company or its employees or agents or for death or personal injury. Some states and jurisdictions do not allow for the exclusion or limitation of incidental or consequential damages, so this limitation may not apply to Subscriber.
10.3. The limitations set forth in this Section 10 shall not apply to either party’s confidentiality obligations under Section 6, or either party’s indemnification obligations.
11.1. By Company. Company will defend at its expense any suit brought against Subscriber, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Service infringes, misappropriates or violates any U.S. Intellectual Property Rights. If any portion of the Service becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Subscriber the right to continue using the Service; (b) replace the Service with non-infringing software or services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Subscriber to Company for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Service and Documentation. Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Service not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Service in combination with other products, equipment, software or data not supplied by Company; or (z) any modification of the Service by any person other than Company or its authorized agents. This subsection states the sole and exclusive remedy of Subscriber and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2. By Subscriber. Subscriber will defend at its expense any suit brought against Company, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising from or related to Subscriber’s breach or alleged breach of Sections 5.2 or 5.3.
11.3. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. Dispute Resolution. Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between Subscriber and Company arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to Subscriber’s use of any of the Services. The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“ AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, Subscriber and Company must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Kings County, Washington. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Kings County, Washington. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property in any court of competent jurisdiction.
13. The parties are independent contractors. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed below, by courier, by registered or certified mail (postage prepaid and return receipt requested), or by a nationally recognized express-mail service. Notice will be effective upon receipt or refusal of delivery. Subscriber may not assign this Agreement without the prior written consent of Company. Any purported assignment in violation of the foregoing shall be null and void. This Agreement shall be governed in all respects by Washington law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. The parties hereby submit to the personal jurisdiction of the state and federal courts in the state of Washington. If any provision of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be deemed modified so as to be valid and enforceable to the greatest extent possible under applicable law, and the validity of the remaining provisions hereof shall not be affected thereby. Subscriber agrees that it will not assist with or participate in any export or re-export of the Software or associated documentation in violation of applicable U.S. laws or regulations. No amendment to, or waiver of rights under, this Agreement shall be effective unless in a writing signed by authorized representatives of each party. This Agreement, including the attached appendices which are incorporated herein, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
Updated: 2 June 2017