Services Terms and Conditions
2. Fees. Customer shall pay to Service Provider a fixed fee equal to the subscription amount selected by Customer upon enrollment on Service Provider’s Job Board, which shall entitle Customer to the Services for the period of months set forth in such subscription selection (the “Fee“), and shall be billed in accordance with such subscription selection. Any Fee (whether on a flat-fee or subscription fee basis) payable by Customer is non-refundable and will not be prorated in the event Customer chooses to no longer utilize the Services prior to the expiration date hereof or if either party terminates this Agreement as provided herein. Service Provider shall commence performing the Services on behalf of Customer following Customer’s payment for subscription and Service Provider shall cease performing the Services on behalf of Customer following the expiration of the subscription period (the “Expiration Date”); provided, that this Agreement will automatically renew for successive periods (an “Auto-Renewal”) unless terminated pursuant to the terms hereof pursuant to a notice of Auto-Renewal to be provided by Service Provider seven (7) calendar days prior to the Auto-Renewal. Should Customer wish to terminate additional months of services, Customer may cancel through Customer account on blacktechpipeline.com/profile or notice of termination is required from Customer at least five (5) business days prior to the Billing Date in order to avoid being charged for an additional months of Services.
3. Customer Responsibilities. Customer is responsible for creating and accessing their Customer account on blacktechpipeline.com/profile, using company branding, logos, images, and content surrounding company values, diversity, equity and inclusion initiatives, safety practices, interview process and benefits to build and complete landing page, implementing proper links to connect their Greenhouse or Lever to (the “Site”) integration for job postings, or manually posting and updating their open roles, alerting Service Provider upon initial completion of landing page and role postings, providing to Service Provider all information required by Service Provider for the Services to be properly performed (including, without limitation, URL links to Customer’s website, social media links, salary information as may be required under applicable state or federal law, and information regarding Customer’s diversity & inclusion initiatives). Failure by Customer to provide such information in a way that makes it impossible or not feasible for Service Provider to perform Services under this Agreement shall not be deemed a breach of contract by Service Provider: If Customer becomes aware of (a) any information provided to Service Provider that is false, accurate, or misleading when provided, or (b) any information that is no longer true and correct following submission of such information from Customer to Service Provider, Customer shall immediately notify Service Provider in writing. Failure to comply with the requirements of this Paragraph 3 may result, in Service Provider’s sole and exclusive discretion, in termination of this Agreement by Service Provider.
4. Intellectual Property. All intellectual property rights, including copyrights, trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (collectively, “Intellectual Property Rights“) in and to all materials provided by Customer for the use on the Service Provider’s Site shall be owned exclusively by Customer and Customer agrees to provide a limited, non-exclusive, royalty free license to use the materials on Service Provider’s Site in order to perform the Services fully. Customer agrees to indemnify and hold harmless Service Provider, its members, managers, officers, agents, and representatives, against all liability that may result or be attributable to Service Provider in the situation that Customer should use or provide Intellectual Property which infringes upon another owner’s rights. All other Intellectual Property and branding exclusively owned by and created by Service Provider on its Site shall be and remain the sole and exclusive property of Service Provider.
5. Confidentiality. From time to time during the Term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 5 days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this 4; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this 4 only, Receiving Party’s Group shall mean the Receiving Party’s employees, officers, subcontractors, attorneys, accountants, and financial advisors. Nothing in this Agreement shall be construed from prohibiting Service Provider from posting or otherwise making publically available any information provided by Customer to Service Provider for the Site.
6. Term. This Agreement shall commence as of the date that Customer enrolls with Service Provider’s Job Board service and shall continue thereafter for a period of unless sooner terminated pursuant to Section 7 (the “Term“).
7. Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party“), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding the foregoing, Service Provider may terminate this Agreement immediately and without notice in the event that Customer fails to provide accurate information to Service Provider, or (b) fails to pay the Fee for two (2) consecutive Billing Periods.
8. Independent Contractor. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Service Provider is for all purposes hereunder an independent contractor and no partnership or joint venture is intended or contemplated by this Agreement.
9. Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
SERVICE PROVIDER IS NOT RESPONSIBLE FOR A FAILURE OF CUSTOMER TO FILL ANY OF ITS POSITIONS ADVERTISED ON THE JOB BOARD AND/OR CUSTOMER’S LANDING PAGE ON SERVICE PROVIDER’S SITE. SERVICE PROVIDER DOES NOT GUARANTEE HOW MANY VIEWS CUSTOMER’S POSTINGS WILL RECEIVE, HOW OFTEN OR IF ANY OF CUSTOMER’S POSITIONS ARE FILLED THROUGH ITS LISTINGS ON SERVICE PROVIDER’S SITE. SERVICE PROVIDER WILL, HOWEVER, USE ITS COMMERCIALLY REASONABLE EFFORTS TO KEEP CUSTOMER INFORMED ABOUT PERFORMANCE METRICS ON CUSTOMER’S JOB POSTINGS AND PROVIDE FEEDBACK RELATED TO IMPROVEMENTS THAT MAY RESULT IN ADDITIONAL USER TRAFFIC TO CUSTOMER’S LISTINGS. EXCEPT FOR ANY WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER EXPRESSLY ACKNOWLEDGES THAT RECRUITER MAKES NO WARRANTIES REGARDING THE QUALIFICATIONS OF ANY CANDIDATE OR THE ACCURACY OF INFORMATION PROVIDED BY ANY CANDIDATE TO CUSTOMER AS A RESULT OF A CANDIDATE’S USE AND ACCESS OF THE LANDING PAGE.
10. General. Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request of the other party, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be necessary to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts (including its statutes of limitations), without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Each Party agrees that any dispute arising out of or in connection with this Agreement shall be resolved through binding arbitration to be held with a licensed arbitrator from the American Arbitration Association, to be located in Boston, Massachusetts.
This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)“) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that, the parties intend that the remedy set out in 9 (Limited Warranty) is Customer’s exclusive remedy for the Service Provider’s breach of the limited warranty set out in Section 9. Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section shall be null and void. Service Provider, however, may subcontract the Services. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third party beneficiaries under this Agreement. Sections 4, 5, 7, 9, and 10 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. This Agreement may be executed in counterparts, each of which together shall be read as one and the same agreement.
11.Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, declared state of emergency, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
12. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing. All Notices shall be delivered by email (with confirmation of transmission) and addressed to the parties (a) with respect to Customer, at the e-mail addresses provided by Customer upon subscribing to the Job Board, and (b) with respect to Service Provider, to email@example.com. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
13. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.