PLEASE READ THIS AGREEMENT BEFORE USING CLIKSOURCE’S SERVICES. BY ACCESSING OR USING CLIKSOURCE’S SOFTWARE OR SERVICES OFFERING, YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS SAAS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR CLIKSOURCE’S SOFTWARE AS A SERVICE AGREEMENT, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
This Software as a Service Agreement (“SaaS Agreement” or “Agreement”) is entered into between Customer and ClikSource LLC, a New Jersey limited liability company (“ClikSource”), with its principal place of business at 110 Allen Road, Basking Ridge, NJ 07920. ClikSource and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
DEFINITIONS“Customer Content” means all data and materials provided by Customer to ClikSource for use in connection with the SaaS Services, including, without limitation, customer applications, data files, and graphics.“Documentation” means the user guides, online help, release notes and other documentation provided or made available by ClikSource to Customer regarding the use or operation of the SaaS Services.“Hire” or “Hires” refers to an individual or individuals Customer marks candidate as ‘Hire’ in the ClikSource application as a full-time employee or subcontractor(s) or independent contractor(s) pursuant to the SaaS Services Customer has purchased under this Agreement and any SaaS Services Order Forms thereto.“Other Services” means all technical and non-technical services performed or delivered by ClikSource under this SaaS Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SaaS Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a SaaS Services Order Form and mutually agreed to by the parties. All Other Services will be provided on a non-work for hire basis.“SaaS Services Order Form” is a written purchase agreement document signed by ClikSource and Customer for the purpose of purchasing SaaS Services under the terms and conditions of this SaaS Agreement.“Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.“SaaS Services” refers to the specific ClikSource’s internet-accessible service identified in a SaaS Services Order Form that provides use of ClikSource’s Software that is hosted by ClikSource and made available to Customer over a network on a term-use basis.
“Subscription Term” shall mean that period specified in a SaaS Services Order Form during which Customer will have on-line access and use of the Software through ClikSource’s SaaS Services. The Subscription Term shall renew for successive 12- month periods unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.
“Users” or “User” means individual(s) that will be granted access to and/or managed by the SaaS Services for the purposes of providing SaaS Services.
During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, right to access and use the SaaS Services solely for your internal business operations subject to the terms of this Agreement and up to the number of Hires purchased in the SaaS Services Order Form.
Customer acknowledges that this Agreement is a services agreement and ClikSource will not be delivering copies of the Software to Customer as part of the SaaS Services.
RESTRICTIONSCustomer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than the person or persons authorized under the purchased license (“Users”), (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, ClikSource shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to ClikSource.
Assistance. Customer shall provide commercially reasonable information and assistance to ClikSource to enable ClikSource to deliver the SaaS Services. Upon request from ClikSource, Customer shall promptly deliver Customer Content to ClikSource in an electronic file format specified and accessible by ClikSource. Customer acknowledges that ClikSource’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that ClikSource exercises no control over the content of the information transmitted by Customer or the Users through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
Unauthorized Use; False Information. Customer shall: (a) notify ClikSource immediately of any unauthorized use of any password or User id or any other known or suspected breach of security, (b) report to ClikSource immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any User, and (c) not provide false identity information to gain access to or use the SaaS Services
Administrator Access. Customer shall be solely responsible for the acts and omissions of its Users. ClikSource shall not be liable for any loss of data or functionality caused directly or indirectly by the Users.
Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify ClikSource immediately of any unauthorized use of any password or User id or any other known or suspected breach of security, (ii) report to ClikSource immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any User, and (iii) not provide false identity information to gain access to or use the Service.
License from Customer. Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to ClikSource a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. ClikSource or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some ClikSource programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by ClikSource and not under the Agreement.
Suggestions. ClikSource shall have a royalty-free, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services.
ORDERS AND PAYMENT
Orders. Customer shall order SaaS Services pursuant to a SaaS Services Order Form. All services acquired by Customer shall be governed exclusively by this SaaS Agreement and the applicable SaaS Services Order Form. In the event of a conflict between the terms of a SaaS Services Order Form and this SaaS Agreement, the terms of the SaaS Services Order Form shall take precedence. For any candidate hired by Customer as a result of Customer’s use of the SaaS Services and/or ClikSource application without an active SaaS Services Order Form, ClikSource shall be owed the fee as per the last active SaaS Services Order Form and Agreement.
Invoicing and Payment. Unless otherwise provided in the SaaS Services Order Form, ClikSource shall invoice Customer for all fees upon the SaaS Services Order Form’s effective date. Customer shall pay all undisputed invoices within thirty (30) days from the effective date of each SaaS Services Order Form. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by Customer to ClikSource in United States Dollars. ClikSource pays invoices via Automated Clearing House (“ACH”). As requested by ClikSource, Customer shall provide to ClikSource the necessary ACH information.
Taxes. ClikSource shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services.
TERM AND TERMINATION
Term of SaaS Agreement. The term of this SaaS Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Section.
Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
Suspension or Termination for Non-Payment. ClikSource reserves the right to suspend delivery of SaaS Services or terminate this Agreement if Customer fails to timely pay any undisputed amounts due to ClikSource under this Agreement. Suspension of the SaaS Services or termination of this Agreement shall not release Customer of its payment obligations under this Agreement. Customer agrees that ClikSource shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension or termination of the SaaS Services resulting from Customer’s nonpayment.
Suspension or Termination for Ongoing Harm. ClikSource reserves the right to suspend or terminate delivery of the SaaS Services if ClikSource reasonably concludes that Customer or any User’s use of the SaaS Services is causing immediate and ongoing harm to ClikSource or others. In the extraordinary case that ClikSource must suspend or terminate delivery of the SaaS Services, ClikSource shall immediately notify Customer of the suspension or termination and the parties shall diligently attempt to resolve the issue. ClikSource shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.4. Nothing in this Section 6.4 will limit ClikSource’s rights under Section 6.5 below.
Effect of Termination.
Upon termination of this SaaS Agreement or expiration of the Subscription Term, ClikSource shall immediately cease providing the SaaS Services and all usage rights granted under this SaaS Agreement shall terminate.
If ClikSource terminates this SaaS Agreement due to a breach by Customer, then Customer shall immediately pay to ClikSource all amounts then due under this SaaS Agreement and to become due during the remaining term of this SaaS Agreement, but for such termination.
Upon termination of this SaaS Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
WARRANTIESCLIKSOURCE WARRANTS THAT THE SAAS SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. CLIKSOURCE DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT CLIKSOURCE WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT CLIKSOURCE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY CLIKSOURCE (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER CLIKSOURCE NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL CLIKSOURCE OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
LIMITATIONS OF LIABILITYNEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF CLIKSOURCE) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SAAS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.
Indemnification by ClikSource. If a third party makes a claim against Customer that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that ClikSource’s negligence or willful misconduct has caused bodily injury or death, ClikSource shall defend Customer and its directors, officers and employees against the claim at ClikSource’s expense and ClikSource shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by ClikSource, to the extent arising from the claim. ClikSource shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by ClikSource, or (c) use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement. ClikSource may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.
Indemnification by Customer. If a third party makes a claim against ClikSource that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend ClikSource and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
Definition.“Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this SaaS Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this SaaS Agreement, Customer Content is deemed Confidential Information of Customer. ClikSource software and Documentation are deemed Confidential Information of ClikSource.
Confidentiality. During the term of this SaaS Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party
Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties, but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this SaaS Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
Non-Exclusive Service. Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict ClikSource’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
Assignment. Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this SaaS Agreement to an acquirer of all or substantially all of the business of such party to which this SaaS Agreement relates, whether by merger, asset sale or otherwise. This SaaS Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this SaaS Agreement, provided, however, that such party shall not be relieved of any obligation under this SaaS Agreement.
Notices. Except as otherwise permitted in this SaaS Agreement, notices under this SaaS Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this SaaS Agreement.
Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SaaS Agreement shall not constitute a waiver of any other or subsequent breach.
Severability. If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.
Entire SaaS Agreement. This SaaS Agreement (including all SaaS Services Order Forms and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this SaaS Agreement. This SaaS Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any SaaS Services Order Form or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.
Survival. Sections 3, 6, and 8 through 12 of this SaaS Agreement shall survive the expiration or termination of this SaaS Agreement for any reason.
Publicity. ClikSource may include Customer’s name and logo in its customer lists and on its website. Upon signing, ClikSource may issue a high-level press release announcing the relationship and the manner in which Customer will use the ClikSource solution. ClikSource shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
No Third Party Beneficiaries. This SaaS Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
Independent Contractor. The parties have the status of independent contractors, and nothing in this SaaS Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
Statistical Information. ClikSource may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.
Governing Law. This SaaS Agreement shall be governed by the laws of the State of New Jersey.
Compliance with Laws. ClikSource shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data
Dispute Resolution. All disputes, controversies or claims between the parties hereto arising out of or relating to this Agreement (including, but not limited to, disputes as to the validity, interpretation, performance, breach, or with respect to damages upon termination of this Agreement) shall first be resolved within two weeks through communication and corporate escalation, and then through binding arbitration conducted in the state of New Jersey. Any and all disputes, claims, legal actions, filings, and arbitrations must be instigated within six (6) months of the incident that prompted such action. Customer further agrees to waive its right to file any such claim, dispute, legal action, filing or arbitration outside of the six (6) months limited noted above. This arbitration shall not preclude ClikSource from getting injunctive relief or a restraining order to immediately prohibit continued injurious actions by Customer against ClikSource. Customer agrees that any dispute that arises out of or relating to this Agreement is to be governed by the Model Employment Arbitration Procedures of the American Arbitration Association (“AAA”) and any dispute will be settled by final and binding arbitration held in New Jersey.
This Agreement and any exhibits, attachments or other documents related thereto (including any related SaaS Services Order Forms) constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous agreements whether written or oral.