ProductiveRecruit LLC SUBSCRIBER AGREEMENT
THIS ProductiveRecruit, LLC SUBSCRIBER AGREEMENT is entered into as a global master agreement by and between ProductiveRecruit LLC defined in Section 1 (“ProductiveRecruit”) and Client (“Client” or “You”) (on behalf of itself and its Affiliates, for whom Client agrees it is responsible under this Agreement). By using the ProductiveRecruit Service or Support, clicking Agree, or electronically or manually signing a Services Order Form, you (“Client”) agree to be bound by this Subscription Agreement. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement. This Agreement shall be effective on the date fully executed by the parties (the “Effective Date”).
If you are agreeing to this Agreement on behalf of or for the benefit of a company, organization, or other entity, or another individual, then you represent and warrant that you have the necessary authority to agree to this agreement on behalf of that company, organization, other entity or individual. if you do not have that authority, or if you do not agree to the terms of this agreement, you must not accept this agreement and may not use our products or services.
BY AGREEING TO BE BOUND BY THIS AGREEMENT THE ClIENT AGREES TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND THE CLIENT IS PERMITTED TO PROCEED TO ACCESS THE SERVICES. IF CLIENT DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PRODUCTIVERECRUIT IS UNWILLING TO GRANT CLIENT ANY RIGHTS TO USE THE SERVICES, AND CLIENT MUST STOP INSTALLING AND ACCESSING THE SERVICES.
NO USER OF ANY KIND SHALL UPLOAD ANY HEALTH INFORMATION PROTECTED BY HIPAA TO THE SERVICES OR APPLICATION.
CLIENT SHALL ALSO NOT CREATE OR OFFER FOR SALE TO ANY THIRD PARTIES A WHITE LABEL VERSION OF THE PRODUCTIVERECRUIT SERVICES, APPLICATION OR SOFTWARE.
1. Definitions.
1.1 “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with that party, where “control” means ownership of more than fifty percent (50%) of the outstanding voting securities (but only as long as that person or entity meets this requirement).
1.2 “Agreement” means, collectively, this ProductiveRecruit SaaS Subscription Agreement, any Statement of Work and Order Form agreed to by the parties, as well as any attached or referenced exhibits or schedules, and amendments to this Agreement, each of which are incorporated into the Agreement by this reference.
1.3. “Athlete” means athletes age 18 years or over who execute the ProductiveRecruit End User License Agreement (EULA) and the minor children of Client’s customers who are athletes younger than age 18 that is submitted, uploaded, imported, processed through, collected from, made available by, produced by or resulting from Client, its Customers and its authorized users use of the Services during the Term. No personal information of any athlete shall be uploaded to the Application without athletes age 18 years or over and parents of minor children athletes first signing the ProductiveRecruit EULA.
1.4 “ProductiveRecruit” means one of the following entities and includes any Affiliate identified on an Order Form or Statement of Work:
(a) “ProductiveRecruit LLC” means ProductiveRecruit LLC, located at 2045 W Grand Ave Ste B PMB 60626, Chicago, IL, 60612-1577.
1.5 “ProductiveRecruit Service” “Services” or “Application” means ProductiveRecruit’s hosted software application called “ProductiveRecruit” accessible by Authorized Users and Administrative Users solely for the internal business operations of Client during the Term as ordered by Client in an Order Form with Schedule, as specified in an Order Form, and new features, functionality, enhancements, upgrades, error corrections and bug fixes to the ProductiveRecruit Service that ProductiveRecruit makes generally available for no additional charge to Clients. The ProductiveRecruit Service is a proprietary software-as-a-service application that helps student-athletes and their coaches collaborate on the college sports recruiting process (the “ProductiveRecruit Service” or “Services”). The functionality and description of the features of the ProductiveRecruit Service are contained on our website.
1.6 “Authorized User” means a named person who is authorized to use the ProductiveRecruit Service under a valid subscription or other right granted by ProductiveRecruit to Client, and has been supplied access to the ProductiveRecruit Service via a user identification and password by Client (or by ProductiveRecruit at Client’s request).
1.7 "Client" means the company, organization, other entity, or individual on behalf of which this Agreement is accepted, as described above, which includes but is not limited to a director or coach of a sports club, high school athletic director or or owner of a college recruiting consulting business.
1.8 “Client Data” means all electronic data or information submitted, uploaded, imported, processed through, collected from, made available by, produced by or resulting from Client and its authorized users use of the Services during the Term to or through the ProductiveRecruit Service for processing, and the outputs and modifications to that data obtained from such processing. Client Data includes any third party electronic data (“third party data”) as defined below. All Client Data has been designed, created and provided solely by Client, its Authorized Users or by third parties on its behalf without the participation or involvement of ProductiveRecruit. Client is primarily responsible for the Client Data, and for all activity in its Services accounts that is authorized by Client or results from Client’s acts or omissions. Client is responsible for ensuring that it has all the rights and permissions needed to use the Client Data in connection with the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Client Data entered into or inputted into the Services. ProductiveRecruit assumes no responsibility for the accuracy, propriety, or usefulness to Client of the Client Data. Client acknowledges that it owns all of the Client Data or has all rights to grant such licenses to ProductiveRecruit to use such Information in furtherance of providing the Services without infringement or violation of any third party rights. ProductiveRecruit shall not be liable to Client or any third-parties for any loss, damage or expense whatsoever and howsoever arising from any Client Data entered into the Services by Client or by an entity on its behalf. Client acknowledges that ProductiveRecruit will rely on the accuracy of the Client Data provided to ProductiveRecruit by Client as it performs its requested functions under this Agreement. ProductiveRecruit provides no warranties, representations or indemnification to Client for its access to, and use of the Client Data.
1.9 “Documentation” OR “FAQ” means the online help materials describing the features and functionality of the ProductiveRecruit Service and located at https://docs.productiverecruit.com/ that ProductiveRecruit provides for use with the ProductiveRecruit Service, as may be updated by ProductiveRecruit from time to time.
1.10 “Intellectual Property Rights” means patents, patent applications, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
1.11 “Order Form” means a document signed by and between both ProductiveRecruit and Client (including Affiliates of either party that enter into an Order Form) that references this Agreement and details the ProductiveRecruit Service or Professional Service(s) to be provided by ProductiveRecruit, the fees associated therewith, and any other transaction-specific provisions.
1.12 “Statement of Work” or “SOW” means a document (including an Order Form to the extent referencing Professional Services) signed by and between both ProductiveRecruit and Client (including Affiliates of either party that enter into a Statement of Work) that references this Agreement and describes the activities and deliverables for implementation, training or other Professional Services related to Client’s use of the ProductiveRecruit Service.
1.13 “Subscription Term(s)” means the subscription period(s)specified in an Order Form during which Authorized Users may use the ProductiveRecruit Service, subject to the terms of the Agreement.
1.14. “Third Party Data” means all data of any kind including personal information that can identify a third party (“third party”) individual personally. Third Party Data includes personal information of athletes age 18 years or over and the minor children of Client’s customers who are athletes younger than age 18 that is submitted, uploaded, imported, processed through, collected from, made available by, produced by or resulting from Client, its authorized users, its Customers and athletes use of the Services during the Term.
2. PROVISION OF THE PRODUCTIVERECRUIT SERVICE.
2.1 ProductiveRecruit Service; Access Right. ProductiveRecruit shall host and make the ProductiveRecruit Service available to Client during the Subscription Term(s) as described on one or more Order Form(s). The ProductiveRecruit Service includes the features and functionality applicable to the ProductiveRecruit Service as ordered by Client. ProductiveRecruit shall host the ProductiveRecruit Service and may update the content, functionality, and user interface of the ProductiveRecruit Service from time to time in its sole discretion. Some features and functionality may be available only with certain versions or editions of the ProductiveRecruit Service, or subject to additional fees or additional provisions.
2.2 Access and Usage Restrictions. Client has a non-exclusive, non-sublicensable, non transferable (except as specifically permitted in this Agreement) right to access and use the ProductiveRecruit Service under this Agreement during the applicable Subscription Term, solely for Client’s internal business purposes relating to the processing of Client Data subject to the limitations stated in the Order Form(s). Unless otherwise specifically permitted in this Agreement, Client shall not (a) sublicense, sell, re-sell, transfer, assign, distribute or otherwise grant or enable access to the ProductiveRecruit Service in a manner that allows access or use of the ProductiveRecruit Service by an individual who is not an Authorized User, or to commercially exploit the ProductiveRecruit Service; (b) copy, modify or create derivative works based on the ProductiveRecruit Service (for the sake of clarity, inputting Client Data is not considered a creation of a derivative work); (c) reverse engineer or decompile the ProductiveRecruit Service (except to the extent permitted by applicable law and only if ProductiveRecruit fails to provide permitted interface information within a reasonable period of time after Client’s written request); (d) copy any features, functions or graphics of the ProductiveRecruit Service; (e) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the ProductiveRecruit Service for any purpose, whether by termination of employment or other change in job status or function); or (f) access or use the ProductiveRecruit Service except as expressly permitted under this Agreement; and (g) access or use the ProductiveRecruit Service (i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (ii) in violation of applicable laws; (iii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (iv) in a manner that interferes with or disrupts the integrity or performance of the ProductiveRecruit Service (or the data contained in the ProductiveRecruit Service); or (v) to gain unauthorized access to the ProductiveRecruit Service (including unauthorized features and functionality) or its related systems or networks.
2.3 Availability & Support. Service Level Agreement (the “SLA”). We warrant 99.9% uptime for the Services and Application and components specific to and wholly controlled by Us, excluding scheduled maintenance or upgrade time. We make no warranty of the platforms that Our services may depend upon the third party provider that hosts the Services and Application. For any period that the SLA is not met, We will provide a pro-rated refund to You for the portion of the service package affected, provided that You promptly notify Us in writing and We verify the service outage. From time to time, We may upgrade the Services infrastructure, which may require marginal downtime of the Services. We will notify Your registered administrative user by email, a minimum of seven (7) days in advance of scheduled maintenance. Support parameters (Eastern Standard Time) specific to the Services covered in this Agreement are as follows:
Email support: Monitored 9:00 A.M. to 5:00 P.M. Monday – Friday CST; and
Emails received outside of office hours will be collected; however, no action can be guaranteed until the next working day.
2.4 Security and Integrity of Client Data. Client acknowledges that it retains administrative control over to whom it grants access to the Client Data hosted in the ProductiveRecruit Service. Nonetheless, during the Subscription Term, ProductiveRecruit shall maintain reasonable administrative and technical safeguards designed for the physical protection, confidentiality, and integrity of Client Data. ProductiveRecruit will not use Client Data except to provide the ProductiveRecruit Service, or to prevent or address service or technical problems, as permitted in this Agreement or as instructed by Client.
2.5 Usage Limits. Use of the ProductiveRecruit Service is subject to the usage limits identified in an Order Form, which may include limitations on features and functionality. If a party detects or becomes aware that Client exceeds a limit, that party shall promptly notify the other, and Client shall work with ProductiveRecruit to promptly change its usage to comply with the limit. If Client fails to change its usage or to comply with the limit within thirty (30) days, or if Client notifies ProductiveRecruit of its intent to continue with the excess usage, Client shall execute an Order Form and pay invoices issued by ProductiveRecruit for that excess usage. As may be reasonably requested by ProductiveRecruit from time to time, Client agrees to verify, certify, or provide evidence that its use of the ProductiveRecruit Service is within the applicable usage limits.
2.6 Professional Services. shall mean the Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services. When both ProductiveRecruit and Client have executed an Order Form, that Order Form becomes effective, and a part of this Agreement, as of the effective date set forth therein (the “Order Effective Date”).
2.7 Ownership of Deliverables. If Software Development Work is included in any Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services, Client acknowledges and agrees that ProductiveRecruit owns all of the intellectual property rights in the Deliverables and Documentation including without limitation any pre-existing materials and Confidential Information supplied by Client for incorporation into such Deliverable and the software used to provide the Deliverables. Any modification, enhancement, derivative work, or other improvement of or based upon the Services, which includes a Deliverable, whether developed by ProductiveRecruit or a Client, will be ProductiveRecruit exclusive property and Client hereby irrevocably and in perpetuity assigns to ProductiveRecruit all worldwide rights, title, and interest therein.
ProductiveRecruit grants to Client a revocable, royalty-free, non-exclusive, non-transferable, non-assignable right to use any Deliverable if an Order Form has been executed, to the extent necessary to permit Client to use the Deliverable in connection with the Services during the Term until such time that the Agreement ends or is terminated then Client shall cease using any enhancements, modifications, adaptations and derivative works of the Services made by ProductiveRecruit or Client and Client shall return all such products to ProductiveRecruit immediately. Client acknowledges that nothing in this Agreement will restrict or limit ProductiveRecruit from performing similar services and creating similar Deliverables for any third party.
2.8 No Work Made for Hire. (a) Client agrees that no Work Product will be developed from a Deliverable as a “work made for hire.” As such, copyright and all other intellectual property rights vest with ProductiveRecruit when the Deliverable is fixed in a tangible medium of expression. In the event that Client is ever determined to own copyrights or other intellectual property rights in the Deliverable, Client hereby: (i) irrevocably assigns to ProductiveRecruit all rights, title, and interest that Client might have in the Deliverable; (ii) agrees to execute all documents necessary to implement and confirm the letter and intent of this Section; and (iii) irrevocably appoints ProductiveRecruit as Client ’s attorney‐in‐fact to execute any ownership documents to perfect such ownership interests of ProductiveRecruit, such right being coupled with an interest.
(b) Deliverable as Confidential Information. The Deliverables are deemed to be ProductiveRecruit's Confidential Information hereunder and, except as permitted herein, must not be disclosed by Client without ProductiveRecruit's express written approval. Client may use the Deliverable for any internal business purpose and Client may disclose the Deliverable to any contractor or ProductiveRecruit of Client that assists Client with its internal business affairs and operations, provided that Client first binds such third party contractor or ProductiveRecruit to the same restrictions on use and disclosure of the Deliverable contained herein. Any other disclosure or publication of any Deliverable requires ProductiveRecruit's prior written consent.
2.9 Third Party Integrated Services. Third Party Integrated Services are third party products, applications or services that are provided and managed by third party providers, and interoperate with the ProductiveRecruit Services.
ProductiveRecruit allows third party vendors, service providers, software developers and information systems companies to provide third party products, applications, websites and/or features via the ProductiveRecruit Services (“integrated Service” or “Integrated Services”). ProductiveRecruit offers Integrated Services by either i) licensing technology from a third party and embedding it in the Services; or ii) establishing a connection or conduit with a third party’s software platform or information system enabling the Services to send Client Data or any type of information to the intended party. (i) and (ii) are collectively the “Embedded Technology”). Client consents to use Embedded Technology with the Subscription Service.
2.9.1 Integrated Services. Client acknowledges that: (i) in order to use certain Integrated Services, there may be additionally applicable terms and conditions including those which may establish a direct contractual relationship between Client and an Integrated Services provider; and (ii); Uptime, availability and support of Integrated Services may be provided by an Integrated Services provider and not ProductiveRecruit. If subscribed for Integrated Services, Client agrees ProductiveRecruit may allow the provider of such Integrated Services to access Client’s Data as required for the interoperation of that Integrated Service with the ProductiveRecruit Services. Client acknowledges ProductiveRecruit is not responsible for any disclosure, modification or deletion of Client’s Data not protected by HIPAA resulting from access by an Integrated Service or its provider. ProductiveRecruit does not warrant or support Integrated Services, except as specified in a specific addendum to this Agreement related to the Integrated Service.
Embedded Technology will be used among other ways to collect data and information (“third party information”) from various systems: (i) to identify opportunities in the third party information to be utilized by Client while using the Services; (ii) to make improvements to the software underlying the Services; and (iii) to measure Key Performance Indicators (KPIs). ProductiveRecruit has no duty to verify the accuracy or reliability of all such third party information and KPIs and shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, or claim caused by Client or any third party’s reliance on any such third party information and KPIs.
3. CLIENT RESPONSIBILITIES. Client has exclusive control and responsibility for determining what data Client submits into the ProductiveRecruit Service and for obtaining all necessary consents and permissions for submission of Client Data and processing instructions to ProductiveRecruit. Client is further responsible for the accuracy, quality, and legality of all Client Data, and for the acts and omissions of Authorized Users in accessing and using the ProductiveRecruit Service. Client shall use reasonable measures to prevent, and shall promptly notify ProductiveRecruit of, any known or suspected unauthorized use of the ProductiveRecruit Service or Authorized User access credentials.
4. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP.
4.1 Client. Client grants ProductiveRecruit a worldwide, non-exclusive license for the limited purpose of allowing ProductiveRecruit to host, copy, process, transmit and display Client Data as reasonably necessary for ProductiveRecruit to provide the ProductiveRecruit Service as permitted in this Agreement. Subject to this limited license right, as between ProductiveRecruit and Client, Client owns all right, title and interest, including all related Intellectual Property Rights, in and to the Client Data.
4.2 ProductiveRecruit. ProductiveRecruit owns and shall continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the ProductiveRecruit Service. Client acknowledges that the ProductiveRecruit name, the ProductiveRecruit logo, and the product and feature names associated with the ProductiveRecruit Service are trademarks of ProductiveRecruit or third parties, and no license to those marks is granted under this Agreement. Client grants to ProductiveRecruit a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate and use, commercialize and distribute with the ProductiveRecruit Service any suggestions, recommendations or other feedback specifically relating to the ProductiveRecruit Service as Client in its discretion may elect to provide and to create derivative works of the same.
5. USE OF AGGREGATE INFORMATION. Client acknowledges that ProductiveRecruit collects, logs, and aggregates usage data as part of the normal operation of the ProductiveRecruit Service (“Aggregated Data”). ProductiveRecruit may use Aggregated Data for purposes of operating ProductiveRecruit’s business, monitoring performance of the ProductiveRecruit Service, and improving the ProductiveRecruit Service as long at the Aggregated Data is anonymized and ProductiveRecruit’s use does not reveal or disclose any Client Data, Client Confidential Information, or personally identifiable information or personal data of Authorized Users.
6. BILLING AND PAYMENT.
6. Payment Terms
6.1 Fees. 6.1 Fees. Client can choose monthly or yearly subscription fee plans. Client is responsible to pay ProductiveRecruit for all monthly or yearly Fees (“Fees”) to subscribe to use the Service each month the Term is in effect as set forth in Our Order Form. By subscribing to use the Service, Customer agrees to pay ProductiveRecruit's applicable monthly and/or yearly fees. Unless otherwise provided in writing by Us, You will pay all fees due according to the prices and terms listed in the Order Form. Payment for all fees shall be due upon the Effective Date and payment shall be made in U.S. Dollars. Fees are based on the Services purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. Fees are based on annual periods that commence on the Effective Date and end on the anniversary thereof. Fees for any additional Services purchased during the Contract Term will be prorated for the remaining time of the monthly, quarterly or yearly period in which they were purchased.
6.2 BILLING. (a) We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to use Payment Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Payment Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
(b.) PAYMENT METHOD. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
IF YOU WISH TO TERMINATE YOUR AUTHORIZATION FOR A PAYMENT METHOD OR CHANGE YOUR PAYMENT METHOD, CONTACT US AT: support@productiverecruit.com. Or, you can adjust your payment methods in the settings function of the ProductiveRecruit Service.
(c) CURRENT INFORMATION REQUIRED
AS PART OF YOUR CONTINUED USE OF THE SERVICES YOU ARE REQUIRED TO PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL REQUIRED INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (INCLUDING PROVIDING A CHANGE IN BILLING ADDRESS, OR UPDATED CREDIT CARD NUMBERS, OR CREDIT CARD EXPIRATION DATES), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE ABOVE MENTIONED INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAYMENT SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAYMENT SERVICES AS SET FORTH ABOVE.
(d) CHANGE IN AMOUNT AUTHORIZED. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
(e) REAFFIRMATION OF AUTHORIZATION. Your non-termination or continued use of a Payment Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Payment Service.
(f) You can change your payment method yourself by logging into the ProductiveRecruit platform and visiting the subscription section.
(g) You shall maintain a valid payment method at all times until the termination of services (not upon notice of cancellation). Your Breach of these provisions shall entitle ProductiveRecruit to immediately suspend the services to you.
6.3 Taxes. Fees are exclusive of all applicable taxes, levies, or duties, and Client is responsible for payment of all of those taxes, levies, or duties, excluding taxes based solely on ProductiveRecruit’s income. Client shall pay all fees free and clear of, and without reduction for, any applicable transaction taxes, including but not limited to sales and use taxes, VAT, GST, gross receipts taxes, withholdings and other similar transactional charges (“Transaction Taxes”); Transaction Taxes imposed on payments of fees will be Client’s responsibility, and Client shall provide receipts issued by the appropriate taxing authority to ProductiveRecruit on request to establish that the Transaction Taxes have been paid. ProductiveRecruit may invoice Transaction Taxes as permitted in applicable law on an invoice as referenced in Section 6.1 or a separate invoice. ProductiveRecruit reserves the right to determine Transaction Taxes based on Client's “bill to” or "ship to" address, or other information provided by Client on location of Client’s use of the ProductiveRecruit Service. Client is responsible for any taxes, penalties or interest that might apply based on ProductiveRecruit’s failure to charge appropriate tax due to incomplete or incorrect “bill to” or “ship to” location information provided by Client. If Client is exempt from Transaction Taxes, Client shall provide proof of the exemption to ProductiveRecruit without undue delay upon execution of the applicable Order Form.
6.4 Effect of Nonpayment. This Agreement and Client’s access to the ProductiveRecruit Services or ProductiveRecruit’s provision of Professional Services may be suspended or terminated if Client fails to make timely payment of undisputed fees when due. Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus collection costs. Suspension will not relieve Client’s obligation to pay amounts due. Upon termination of this Agreement, Client shall pay the balance due on Client’s account subject to the provisions of Section 7.3 (“Effect of Termination; Survival”).
6.5 Future Features and Functionality. Client acknowledges that purchases under this Agreement or any Order Form are not contingent on the delivery of future features or functionality.
6.6 Fee Changes. We in our sole discretion and at any time, may modify the Fees for the Subscriptions. We will provide you with at least 30 days notice (including by email) of any proposed changes to the Fees for your Subscription to give you an opportunity to terminate your Subscription before such change becomes effective. Thereafter, your continued use of the Services after the Fee change comes into effect constitutes your irrevocable and binding agreement to pay the modified Fees for the Subscriptions.
6.7 Refunds. All Fees paid by you to us are non-refundable, except if required by law.
7.1 Term and Termination
7.1 (a) Term; Renewals. Term; Renewals. Our subscription plans' billing frequency/term is monthly or yearly. 30 days is the initial term for a monthly subscription (the “Monthly Term”). One year is the initial term for a yearly subscription (the “Yearly Term”). For the avoidance of doubt monthly subscription plans are for an initial period of 30 days and will thereafter automatically renew for successive 30-day periods. You must provide five (5) days notice to terminate the agreement if you choose the monthly term subscription plan. The yearly one (1) year terms shall automatically renew for successive twelve (12) month periods unless either party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Pricing during renewal terms shall be increased by up to 5% per year for each sequential year at Our discretion.
7.2.1 Termination for Cause. This Agreement shall terminate upon any breach of the Terms by You or Your Authorized Users, in accordance with the Terms.
7.2.2 Effect of Termination. Upon termination, (i) you shall cease any and all use of the Services and You shall relinquish to Us or destroy any and all parts of the Services in Your control, and (ii) all rights, licenses, consents and authorizations granted by Us to You will immediately terminate. The termination of this Agreement shall not limit Our rights or remedies at law or in equity.
7.2.3.Suspension of Services. We may suspend delivery of the Services, without liability, if: (i) You fail to pay any amounts due hereunder to Us, and nonpayment continues for more than thirty (30) days from when notice is given to the You by Us, (ii) We reasonably believe that the Services are being used in violation of this Agreement, (iii) You do not cooperate with Our reasonable investigation of any suspected violation of this Agreement, (iv) there is an attack on Your server by a third party, Your server is accessed or manipulated by a third party without Your consent, or there is another event for which We reasonably believe that the suspension of Services is necessary to protect Our network or Clients, or (v) required by law. We shall use commercially reasonable efforts to give You reasonable notice of a suspension of Services, unless immediate suspension is necessary to protect Us or Our Clients from imminent significant operational or security risk.
7.2.4 Client’s Right To Terminate The Agreement. If Client discovers any material defect with the Services, Client must notify ProductiveRecruit in writing and as Client’s sole and exclusive remedy and ProductiveRecruit’s sole obligation, ProductiveRecruit will either use reasonable efforts to correct any such defect within sixty (60) days of the date the defect was reported, or create a workaround so as to fix the material defect affected in the Software. If ProductiveRecruit is unable to correct or fix the defect in the Software, and the defect renders the Software unusable, the Client shall be entitled to terminate the Agreement and ProductiveRecruit shall issue a pro-rata refund of Subscription Fees for the remaining term of the Agreement. Refund of any such fees is contingent upon Client’s best efforts cooperation in assisting ProductiveRecruit to determine the extent of the defect.
7.2.5 Treatment of Client Data After Expiration or Termination. Client agrees that after termination or expiration of this Agreement, or termination or expiration of any Order Form or Statement of Work, ProductiveRecruit may immediately deactivate Client’s account(s) associated with the Agreement or applicable Order Form(s). During the thirty (30) day period after termination or expiration, ProductiveRecruit shall grant a reasonable number of Authorized Users access to the ProductiveRecruit Service for the sole purpose of retrieving any Client Data that it wishes to retain and deleting any remaining Client Data. After the 30-day period, ProductiveRecruit shall delete Client’s account, including remaining Client Data, if any, from the ProductiveRecruit Service unless legally prohibited.
7.3 Effect of Termination; Survival. Upon early termination of this Agreement by Client under Section 7.2.4 for ProductiveRecruit’s uncured material breach, Client is entitled to a prorated refund of prepaid fees relating to the ProductiveRecruit Service applicable to the remaining period in the applicable Subscription Term. Upon early termination of this Agreement by ProductiveRecruit under Section 7.2.1, fees relating to the ProductiveRecruit Service applicable to the duration of any applicable Subscription Term shall become immediately due and payable by Client. In addition, upon expiration or termination of this Agreement for any reason: (a) all subscription rights granted under this Agreement, ProductiveRecruit’s obligation to provide the ProductiveRecruit Service, and Client’s right to access or receive the ProductiveRecruitService, will terminate; (b) Client Data will be available for retrieval and deleted under Section 7.2.5 (“Treatment of Client Data After Expiration or Termination”); and (c) Sections 1 (“Definitions”), the restrictions in Section 2.2 (“Access and Usage Restrictions”) for so long as Client has access to the ProductiveRecruit, 3 (“Client Responsibilities”), 4 (“Intellectual Property Rights and Ownership”), 5 (“Use of Aggregate Information”), 6 (“Billing and Payment”), 7.2.5 (“Treatment of Client Data After Expiration or Termination”), 7.3 (“Effect of Termination; Survival”), 8 (“Representations and Warranties”), 9 (“Indemnification”), 10 (“Limitation of Liability”), 11 (“Confidentiality and Sensitive Data”), and 12 (“General”) will survive.
8. REPRESENTATIONS AND WARRANTIES.
8.1 By Each Party. Each party represents and warrants that it has the power and authority to enter into this Agreement and that its respective provision and use of the ProductiveRecruit Service is in compliance with laws applicable to each party.
8.2 By ProductiveRecruit.
(a) Conformity with Documentation. ProductiveRecruit warrants that, during the Subscription Term, the ProductiveRecruit Service will perform in a manner materially consistent with the applicable Documentation, and ProductiveRecruit shall not materially decrease the functionality of ProductiveRecruit Service. If a breach of the foregoing warranty occurs, Client shall provide ProductiveRecruit with written notification of the specific way(s) in which the ProductiveRecruit Service does not comply with the warranty and with reasonable information for ProductiveRecruit to create a reproducible test case. If ProductiveRecruit, in its sole discretion, confirms noncompliance, it shall use commercially reasonable efforts to correct that noncompliance within a thirty (30) day period (which may be mutually extended by the parties). If ProductiveRecruit cannot correct the noncompliance during the 30-day cure period, Client may give ProductiveRecruit a thirty (30) day notice of intent to terminate. At the end of the notice period, if the ProductiveRecruit Service still does not comply with this warranty, Client may elect to terminate this Agreement (and any applicable Order Form or Statement of Work) and receive a prorated refund of prepaid fees applicable to the remaining period in the then-current Subscription Term. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to a modification of or defect in the ProductiveRecruit Service that is made or caused by or on behalf of anyone other than ProductiveRecruit. THE FOREGOING RIGHTS ARE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT (AND ProductiveRecruit’S SOLE LIABILITY) FOR A BREACH OF THE WARRANTY DESCRIBED IN THIS SECTION 8.2(A).
(b) Malicious Code. ProductiveRecruit warrants that, to the best of its knowledge, the ProductiveRecruit Service is free from, and ProductiveRecruit shall not knowingly or intentionally introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”), provided however, that ProductiveRecruit shall not be in breach of this warranty if Client or any third party introduces Malicious Code.
8.3 (a) By Client. Client represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of personal data before submission of that personal data to the ProductiveRecruit Service.
8.3 (b) As a director or coach of a sports club, college coach, athletic director at a high school, or owner of a college recruiting consulting business that interacts with athletes age 18 years or older, parents of minor children athletes and athletes that are minors while using the Services and Application, Client warrants that:
(i) It has the legal right and ability to enter into this Agreement, (ii) It has all necessary rights, licenses, consents and permissions to use the Client Data and Third Party Data with the Application and Services, (iii) Client is not a competitor of ProductiveRecruit, or someone acting on behalf of a competitor, (iv) Client is in compliance with the Children’s Online Privacy Protection Act (COPPA); (v) Client or its company retains personal information collected online from a child for only as long as is necessary to fulfill the purpose for which it was collected and deletes the information using reasonable measures to protect against its unauthorized access or use; (vi) Client does not condition a child’s participation in an online activity on the child providing more information than is reasonably necessary to participate in that activity; (vii) Client shall not post or upload any pictures or videos of children under the age of 18 onto the Application or Services unless a Parent of a minor athlete consents to your doing so; (viii) Client and all employees of its company before they are permitted access to the Application or Services shall be a member in good standing of or licensed by the governing body that oversees the sport it consults in or coaches, (ix); Client shall not sell, share or profit from the data of any minor, athlete or user; (x) Client shall not sell, share or profit from the NIL of any minor, athlete or user; and (xi) Client’s use of the Application or Services will not violate or breach any applicable laws, regulations or agreements or unreasonably interfere with Our other customers’ use of Our Application or Services. Client further warrants that it understands that all laws applicable to this Agreement, including those governing data and privacy, may change on a regular basis and vary by jurisdiction, and Client is solely responsible for compliance with any and all applicable laws and regulations.
8.5 WARRANTY DISCLAIMERS. EXCEPT AS WARRANTED IN THIS SECTION 8, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WHEN PRODUCTIVERECRUIT IDENTIFIES A VERSION OF THE PRODUCTIVERECRUIT SERVICE OR OTHER TECHNOLOGY AS BETA, PILOT, TRIAL, LIMITED RELEASE, PRE-RELEASE, EVALUATION, NON-PRODUCTION OR SIMILAR DESIGNATION, THAT VERSION IS PROVIDED “AS IS,” EXCLUSIVE OF ANY AND ALL WARRANTIES, IS NOT SUPPORTED, AND IS NOT SUBJECT TO ANY AVAILABILITY OR SECURITY OBLIGATIONS, AND PRODUCTIVERECRUIT MAY TERMINATE OR DISCONTINUE THAT VERSION AT ANY TIME WITHOUT LIABILITY. PRODUCTIVERECRUIT IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION OR OTHER DAMAGE RESULTING FROM PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS OUTSIDE OF ITS CONTROL.
8.6. Disclaimer - Third Party Integrated Services and Integrated Services. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLIENT ACKNOWLEDGES THAT PRODUCTIVERECRUIT IS NOT RESPONSIBLE FOR THE USE OF ANY THIRD PARTY PRODUCTS, THIRD PARTY INTEGRATED SERVICES, INTEGRATED SERVICES AND EMBEDDED TECHNOLOGY WITH THE PRODUCTIVERECRUIT SERVICES.
8.7. Disclaimer - Client Data. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLIENT ACKNOWLEDGES THAT PRODUCTIVERECRUIT IS NOT RESPONSIBLE FOR THE INTEGRITY OF THE CLIENT DATA PROCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ITS COMPLETENESS, ACCURACY, VALIDITY, AUTHORIZATION FOR PROCESSING AND INTEGRITY OVER TIME AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, OF SUCH CLIENT DATA.
8.8 Disclaimer - Account Credentials. ClIENT IS RESPONSIBLE FOR ENSURING THAT END USERS ARE KEEPING THEIR CREDENTIALS TO ACCESS THEIR ACCOUNTS CONFIDENTIAL AND SECURED, INCLUDING BY FOLLOWING INFORMATION SECURITY BEST PRACTICES REGARDING PASSWORDS. IF ACCOUNTS ARE COMPROMISED AS A RESULT OF END USERS’ NEGLIGENCE, ALTUS SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM THIS NEGLIGENCE.
9. INDEMNIFICATION.
9.1 By ProductiveRecruit. ProductiveRecruit shall defend, indemnify and hold Client harmless from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by Client) finally awarded against Client (or, subject to Section 9.3, the amount of any settlement ProductiveRecruit enters into) resulting from any claim, demand, suit or proceeding from an unaffiliated third party (“Claim”) specifically alleging that the ProductiveRecruit Service directly infringes or misappropriates a valid copyright, trademark, or trade secret of a third party. ProductiveRecruit shall have no indemnification obligation for Claims to the extent arising from: (a) Client’s or any Authorized User’s use of the ProductiveRecruit Service other than as permitted under this Agreement; (b) the combination of the ProductiveRecruit Service developed by ProductiveRecruit with any Client Data or with any Client or third party products, services, hardware, data, content, or business processes; or (c) from the modification of the ProductiveRecruit Service by any party other than ProductiveRecruit or ProductiveRecruit’s agents, or modification by ProductiveRecruit or ProductiveRecruit’s agents based on Client instructions. The foregoing is ProductiveRecruit’s exclusive obligation for infringement claims. If ProductiveRecruit becomes aware of a Claim alleging infringement or misappropriation, or ProductiveRecruit reasonably believes such a Claim will occur, ProductiveRecruit may, at its sole option: (i) obtain for Client the right to continue use of the ProductiveRecruit Service; (ii) replace or modify the ProductiveRecruit Service so that it is no longer infringing; or, (iii) if neither (i) nor (ii) is reasonably available to ProductiveRecruit, terminate the ProductiveRecruit Service, in which case ProductiveRecruit’s sole liability (in addition to the indemnification obligations set out in this Section 9.1) is to refund to Client a prorated amount of prepaid fees for the ProductiveRecruit Service applicable to the remaining period (from the date ProductiveRecruit is notified of the infringement claim by Client) in the then-current Subscription Term.
9.2 By Client. Client shall defend, indemnify and hold ProductiveRecruit harmless from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by ProductiveRecruit) finally awarded against ProductiveRecruit (or, subject to Section 9.3, the amount of any settlement Client enters into) resulting from any Claim arising from (a) your unauthorized use of, or misuse of, the ProductiveRecruit Services, Application or Software; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) allegations that use of the Client Data and Third Party Data infringes a valid copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (d) Client’s failure to obtain consents and permissions from data subjects for the submission and processing of Client Data and Third Party Data in the ProductiveRecruit Service or Application; or (e) instructions by Client or its Authorized Users for processing data other than as specifically allowed in this Agreement.
9.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the Claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the Claim; and (c) providing to the indemnifying party all available information and assistance resulting from the Claim, at the indemnifying party’s request and expense. The indemnified party may participate in the defense of the Claim, at the indemnified party’s sole expense (not subject to reimbursement). Neither party may settle any claim that includes a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought without that party’s prior written consent. Neither party may admit liability for or consent to any judgment or concede or settle or compromise any Claim unless that admission or concession or settlement or compromise includes a full and unconditional release of the other party from all liabilities in respect of the Claim.
10. LIMITATION OF LIABILITY.
10.1 No Indirect Damages. NEITHER PARTY OR ITS AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, CYBERATTACK, BUSINESS INTERRUPTION, BUSINESS OPPORTUNITIES, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR ANY PERSONAL OR CLIENT DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS, BODILY HARM, EMOTIONAL DISTRESS OR LOSS OF LIFE ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FROM A CYBERATTACK, OR COSTS OF DELAY, THE USE OR INABILITY TO USE THE PRODUCTIVERECRUIT SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PRODUCTIVERECRUIT SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT OR THE INCOMPATIBILITY OF THE PRODUCTIVERECRUIT SERVICE WITH ANY HARDWARE, SOFTWARE OR USAGE REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF THE DAMAGES.
10.2 Liability Limit. Each party's and its Affiliates’ total, aggregate liability arising out of or related to this agreement will not exceed the amount paid by Client within the six months before the first incident out of which the liability arose.
10.3 Conditions. The exclusions and limits in this “Limitation of Liability” section reflect the parties’ allocation of risk and will apply under any legal theory (including, without limitation, contract or tort), even where a party was aware of the possibility of such damages, the damages were foreseeable, and/or any remedies hereunder fail of their essential purpose. Such exclusions and limits will not limit Customer’s payment obligations under order forms, obligations toward the Client Data or either party’s liability for infringement of the other party’s intellectual property and confidentiality rights. Such exclusions and limits will not apply to the extent they are prohibited by law.
10.4 Limitation of Liability Restrictions. Notwithstanding the foregoing, nothing in this Section 10 shall exclude or limit the liability of either party or its Affiliates for death or bodily injury caused by the negligence of that party or that party’s Affiliates arising out of the performance of Professional Services under this Agreement, or for any other liability to the extent that liability may not be limited as a matter of applicable law.
10.5 Client assumes the entire cost of any damages it may incur or suffer of any kind resulting from client’s use of any third party products, or ProductiveRecruit’s use of Third Party Products, Third Party Integrated Services, Integrated Services and Embedded Technology with the ProductiveRecruit Services.
10.6 Limitations Fair and Reasonable. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY STATED IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF THOSE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
11. CONFIDENTIALITY AND SENSITIVE DATA.
11.1 Confidentiality. “Confidential Information” means this Agreement, the ProductiveRecruit Service, ProductiveRecruit pricing information, ProductiveRecruit technical information, Client Data and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) related to the provision or use of the ProductiveRecruit Service that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights under this Agreement. Recipient will not disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and subcontractors who have a need to know and who are bound in writing to keep that information confidential under confidentiality requirements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and at a minimum will use at least the degree of care a reasonable person would use. The foregoing will not apply to any information that: (a) was in the public domain at the time it was communicated to the Recipient by the Discloser; (b) entered the public domain after the time it was communicated to the Recipient by the Discloser through no fault of the Recipient; (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient by the Discloser; (d) was rightfully communicated to the Recipient free of any obligation of confidence after the time it was communicated to the Recipient by the Discloser; (e) was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser; or (f) is expressly permitted to be disclosed under the terms of this Agreement.
11.2 Compelled Disclosure. The Recipient shall not be in violation of Section 11.1 for a disclosure that was in response to a valid order by a court or other governmental body, as long as the Recipient provides the Discloser with prior written notice of the disclosure to permit the Discloser to seek confidential treatment of that information.
11.3 Sensitive/Personal Data. Client agrees that it shall not submit into the ProductiveRecruit Service the following types of information except with ProductiveRecruit’s prior written approval: government-issued identification numbers, consumer financial account information, credit reports, personal health information, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).
12. GENERAL.
12.1 Notices. Notices to a party will be sent by first-class mail, overnight courier, or prepaid post to the address for that party as identified on the first page of the Agreement (or as subsequently updated in writing to the other party) and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Client shall address notices to ProductiveRecruit’s CEO, with a copy to ProductiveRecruit Inc., at the address in Section 1.3, when Client has sent a notice to an entity other than ProductiveRecruit Inc.
12.2 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except as provided in this Section 12.2. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) to its Affiliate or under a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without the other party’s consent, provided the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other party are paid in full. If a party is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then that other party may terminate this Agreement upon written notice.
12.3 Governing Law. By using ProductiveRecruit’s Website or Services, you agree that the laws of the State of Illinois without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and ProductiveRecruit.
12.4 Disputes/Arbitration.
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF PRODUCTIVERECRUIT’S WEBSITE OR SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN CHICAGO, ILLINOIS EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE COMMERCIAL ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S CONSUMER RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.
YOU AND PRODUCTIVERECRUIT AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY ILLINOIS LAW, AND THE ARBITRATOR'S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURT LOCATED IN CHICAGO, ILLINOIS.
12.5 Restrictions. You must comply with all applicable foreign, federal, state, provincial, and local laws, including privacy, data protection and access to information laws, when using the ProductiveRecruit Service. For example, you are responsible for complying with all telephone recording laws and requirements, including notifying parties that telephone calls are being recorded when required. You are also responsible for, as applicable, complying with the Telephone Consumer Protection Act (TCPA), the telemarketing provisions of the Canadian Competition Act and Canada’s Anti-Spam Legislation (CASL), including ensuring that all voice calls, text messages and any other commercial electronic messages are sent with the recipients’ valid consent and include prescribed information and an effective unsubscribe mechanism, to the extent required. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to:
a. Use the ProductiveRecruit Service for any illegal purpose or in violation of any local, state, provincial, national, or international law;
b. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. use the ProductiveRecruit Service in violation of any applicable advertising and marketing laws such as CAN-SPAM, the TCPA, the FTC’s Telemarketing Sales Rule, Canada’s Anti-Spam Legislation (CASL), the telemarketing provisions of the Canadian Competition Act, and the CRTC Unsolicited Telecommunications Rules, including those that relate to (i) permitted calling times; (ii) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists); (iii) the required content of text messages and requirements for enabling and promptly implementing unsubscribe requests; (iv) any registration requirements relating to do not call lists; and (v) any notices that need to be given to potential customers during telephone calls.
e. import or transfer to the ProductiveRecruit Service any data that is sensitive financial information (including credit card numbers), health information, medical information, pharmaceutical information, any personal information whatsoever about or regarding children under 13 years of age, or other sensitive or regulated information (for example, Social Security Numbers or Social Insurance Numbers);
You represent, warrant, and agree that: (i) You or your business shall send instructions to anyone who uses the website or services on how to opt out from receiving messages (STOP instructions), as well as how they can get help information (HELP instructions).\; and (ii) Your business is required to have a privacy policy conspicuously disclosed on your business’ website containing a Text/SMS policy.
12.6 Client’s Obligations and Responsibilities With Regard to Client and/or Third Parties Uploading Their Personal Information or Data To The Services. In the event that Client or its Clients (“third parties”) upload personal information or data to the Services that can identify someone (a third party) individually (“third party data”), Client understands and agrees that as part of its obligations under this Agreement to continue to access the Services it will undertake certain obligations and duties with regard to third parties as follows:
(i) Client shall obtain written consent from third parties permitting: (a) Client to upload and submit third party data or personal information up into the Services; and (b) ProductiveRecruit to maintain and process all third party data or personal information of any kind that Client obtains from third parties.
(ii) Client shall not market, share, sell, or license the third party data or personal information to any third parties and shall only use the third party data and third party personal information in its use of the Services. Client shall be permitted to use the third party data and personal information in the operations of its business but not in furtherance of Client’s marketing and sales efforts; (iii) Client shall maintain administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of third party data and personal information; (iv) Client shall maintain Terms of Use and Privacy Policy Agreements on its public facing websites which must include language that Client shall protect third party data and personal information and that Client shall not market, share, sell or license any third party data and personal information to any third parties not a party to this Agreement.
Each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any court in the Applicable Jurisdiction in any action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
12.7 Export Laws. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the ProductiveRecruit Service. Without limiting the generality of the foregoing, Client represents that it is not named on any U.S. government denied-party list, and shall not make the ProductiveRecruit Service available to any user or entity that is located in a country that is subject to a U.S. government embargo, or is listed on any U.S. government list of prohibited or restricted parties.
12.08 Remedies. Unless stated otherwise in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Where Client controls any Affiliate, ProductiveRecruit is entitled to remedies from Client for the obligations and liabilities of Affiliates who place orders under this Agreement.
12.9 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Client and ProductiveRecruit as a result of this Agreement or use of the ProductiveRecruit Service or Professional Services.
12.10 U.S. Government End Users. If Client is a branch agency or instrumentality of the United States Government, the following provision applies. If Client is the U.S. Federal Government, ProductiveRecruit provides the ProductiveRecruit Service, including related software and technology, under the following: Government technical data and software rights related to the ProductiveRecruit Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with ProductiveRecruit to determine if there are acceptable terms for transferring those rights, and a mutually acceptable written addendum specifically conveying those rights, must be included in any applicable contract or agreement.
12.11 Waiver; Modification. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of that right or provision unless the waiver is in writing signed by the waiving party. No modification hereof will be effective unless in writing and signed by both parties.
12.12 Severability. If any provision of this Agreement is unenforceable, that provision will be changed and interpreted to accomplish the objectives of that provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Section 10 (“Limitation of Liability”) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (“Representations and Warranties”).
12.13 Entire Agreement; Execution. This Agreement comprises the entire agreement between Client and ProductiveRecruit and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties for services governed by the terms of this Agreement. If a conflict arises between the terms of this Agreement and the terms of any Statement of Work, any Order Form, or other exhibit to this Agreement, that conflict will be resolved in the following order: (a) any Order Form; (b) any Statement of Work, (c) this Agreement; then (d) any exhibits to this Agreement. This Agreement will be construed as if drafted by both parties and will not be strictly construed against either party. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of that section. Reference to words like (a) “includes” and “including” is inclusive and means “includes (or including), but not limited to”; and (b) “arising” (or which “arise” or “arises”) “out of this Agreement” means matters which occur under this Agreement or relate to the provision or use of ProductiveRecruit Services that directly flow from a party’s performance of or failure to perform its obligations under this Agreement. Any preprinted terms on any Client ordering documents or terms referenced or linked in those terms will have no effect on the terms of this Agreement and are hereby rejected, including where the Client ordering document is signed by ProductiveRecruit. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties hereby consent to the use of electronic signatures for execution of this Agreement, and further agree that electronic signatures to this Agreement are legally binding with the same force and effect as manually executed signatures.
12.14 Force Majeure. Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party's reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.
12.15 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
12.16 Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to such subject matter. In the event of a conflict between the foregoing terms and conditions and any Exhibits to this Agreement, the foregoing terms and conditions will control. The parties agree that in the event Client utilizes a purchase order, any term therein which purports to modify or supplement the terms of this Agreement will be void with no force or effect. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). A party does not waive its rights under this agreement by granting an extension or forbearance to another party.