ERC provides a web-based platform for management of employee and friend referrals. The Company desires to obtain the benefit of these services, and ERC agrees to provide the services, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. THE SERVICES
1.1 Background; the Services. The services (the “Services”) are generally described in the preamble to this Agreement and in further detail on www.employeereferrals.com and its subdomains (the “Websites”). By using the Services, the Company will enable their employees and others to harness their professional and personal networks to generate personnel referrals to fill open employment positions (each, a “Referral”). When a Referral becomes an employee of the Company (a “Hire”), the Company will be able to track and compensate those persons that have assisted in that process. Those persons may be employees of the Company (each, an “Employee”), friends and acquaintances of Employees, or others who use the ERC platform to make referrals (each, a “Friend”).
2. RIGHT TO USE; RESTRICTIONS AND LIMITATIONS
2.1 Right to Use for End Users. Subject to the terms and conditions of this Agreement, ERC hereby grants to Company, and to Employees and Affiliates (collectively, “End Users”), a limited, nonexclusive, nontransferable and revocable right and license to use and access the Services via an ERC Website.
2.3 Limitations. The Company will use the Services only for the uses described or referenced in this Agreement. Neither Company nor any End User will (a) reproduce, download, modify or distribute all or any of a portion of the Services or any intellectual property relating to such services, including without limitation any computer code or (b) reverse engineer, decompile, disassemble, access the computer code relating to the Services. Company may not remove ERC logos, Terms, trademarks, or similar materials from the Services without ERC’s prior written consent. The Company may use the Services only for lawful purposes and in a lawful manner consistent in all material respects with all applicable laws, statutes and regulations relating to employment.
2.4 Hire Reporting. Company will facilitate automated reporting of ERC sourced hires via a link between Client’s applicant tracking system and ERC’s application.
2.5 Content. Company understands that information regarding Referrals provided through or by means of its Websites (“Referral Content”) has not been independently reviewed or verified by ERC and that ERC will not be responsible for the accuracy or veracity of such information.
2.6 Use of Services; Company Content. In using the Services, Company will be responsible for adequately describing its open positions and the qualities and characteristics that a Referral should possess in order to qualify for that position. The Company will also be responsible for adequately describing the compensation and other benefits associated with such position. Company shall be solely responsible for providing, updating, uploading and maintaining any and all Company information and/or materials on, within, displayed, linked or transmitted to, from or through ERC Websites on its behalf (“Company Content”). For the avoidance of doubt, the Company Content includes, without limitation, information about jobs, job postings, employees, and applicants. Company assumes sole responsibility for the accuracy of the Company Content, and for ensuring that the Company Content does not infringe or violate any right of any third party or any law, statute or regulation (in each case, in any material respect).
3. COMPANY REPRESENTATIVE(S)
3.1 Company Representatives. The Services shall be performed in conjunction with Company personnel. Company shall appoint at least one person to be the primary point of contact for receiving alerts or other communications from End Users (the “Company Representative(s)”), and shall provide ERC with the contact information for such Company Representative(s), including name(s), title(s), email address(es), and telephone number(s). Unless otherwise designated, Company Representative(s) will be the persons designated as Administrator within the ERC platform.
AVAILABILITY OF SERVICES
Subject to the terms and conditions of this Agreement, ERC shall provide the Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. Company acknowledges and agrees that from time to time the Services may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which ERC may undertake from time to time, service malfunctions and causes beyond the reasonable control of ERC or which are not reasonably foreseeable by ERC, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to Company’s Internet service provider, hostile network attacks, network congestion or other failures. Company agrees that ERC may not have control over the stability and throughput speed of the Internet or the availability of Services on a continuous or uninterrupted basis. Regardless of the cause of any interruption in the normal Services, ERC shall use its commercially reasonable best efforts to promptly re-establish the Services.
5. CONFIDENTIALITY; PRIVACY
5.1 Confidentiality. Subject to the other terms and conditions of this Agreement, as a result of this Agreement and the ongoing relationship of the parties, each of the parties may have access to or acquire knowledge of confidential and proprietary information concerning the other and the other’s business (the “Confidential Information”), and each agrees to treat the Confidential Information as confidential. All Confidential Information shall remain solely the property of the disclosing party, and the recipient shall maintain and protect the confidentiality of such Confidential Information with the same degree of care used to protect its own confidential information, but in any event, no less than a reasonable degree of care. Each of the parties agrees not to utilize another’s Confidential Information for any purpose other than the performance of this Agreement.
5.2 Privacy. The Company Content, together with information regarding the manner in which Company uses the Services, will not be disclosed by ERC except as necessary to carry out the terms and conditions of this Agreement or (a) to comply with law or comply with legal process served upon ERC, (b) to protect and defend ERC’s rights or property or those of ERC’s customers, clients, vendors, and third party providers, or (c) to protect the personal safety of ERC’s users or the public. By entering this Agreement and using the Services, Company agrees that ERC may gather and use in any manner desired information describing the habits, usage patterns or demographics of those persons who use its Websites (“Usage Information and Statistics”) as long as such use does not violate the terms of this Section 6.
Except as set forth in Section 2.1 hereto, title to any software and hardware now owned by ERC and/or its third party providers and used in providing the Services remains exclusively owned by ERC and/or its third party providers and is not transferred to Company. As between the parties, the Company owns all right, title and interest in and to the Company Content except for the limited rights to the Company Content granted to ERC hereunder.
7. WARRANTIES, DISCLAIMERS
7.1 Limited Warranty. Except as otherwise set forth in this Agreement, ERC warrants that it shall provide the Services in a professional manner and that it shall immediately notify the Company Representative(s) of any complaints or filing made through the software. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 7.1, THE SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, END USERS, OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. Company’s exclusive remedy for breach by ERC of its limited warranty shall be to discontinue the Services and receive an immediate pro-rated refund of Fees paid for the term from the time of discontinuation of Services.
7.3 Indemnification. Company will defend, indemnify and hold harmless ERC, its employees, officers, agents, and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of Company’s violation of its obligations under this Agreement, or the negligent or willful acts of Company. Company’s obligation to indemnity under this provision shall survive termination of this Agreement. ERC will defend, indemnify and hold harmless Company, its employees, officers, agents, and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of ERC’s violation of its obligations under this Agreement, or the negligent or willful acts of ERC, its employees, or agents, or violation of any third party intellectual property or privacy rights. ERC’s obligation to indemnity under this provision shall survive termination of this Agreement.
8.1 Termination. Company may terminate this Agreement within thirty (30) days of written notice if ERC fails to substantially perform its material duties and obligations under this Agreement. ERC may, at it’s election, either suspend service or terminate this Agreement for Company’s failure to pay or other breach of this Agreement. Each party shall have 30 days Notice to Cure any breach.
8.2 Termination of Service. Upon termination of this Agreement for any reason, all access to the Services shall terminate. Upon termination of this Agreement, at the Company’s request, all Company Content will be deleted from ERC’s Websites except for an archival copy of Company Content to allow ERC to confirm and verify the Company’s and ERC’s payment obligations hereunder. If the Company terminates the Services and then wishes to transition Company Content or Referral Content to another data type or source or service platform, Company shall pay ERC $125/hr for these transition services.
9. GENERAL PROVISIONS
9.1 Notice. Any notice or other communication required or permitted by this Agreement shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via email (with acknowledgment of complete transmission) to a party to this Agreement at such party’s known address (or at such other address for a party as may be specified by notice). If by mail, delivery shall be deemed effective three business days after mailing in accordance with this Section and to the addresses noted above.
9.2 Independent Contractors. Each party is an independent contractor and the parties shall not have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create joint venture, partnership or agency relationship between the parties. The parties agree and acknowledge that no End User has or shall have any rights as a third party beneficiary or otherwise arising from or relating to this Agreement.
9.3 Arbitration. Any unresolved claim, dispute, or controversy arising from this Agreement other than under Section 6.1 hereof, shall be submitted to arbitration under the rules of the American Arbitration Association (the “AAA”) or, by mutual consent, any other recognized arbitration association. The rules of the AAA or other association shall apply and the Agreement shall be construed according to the commercial laws of the State of Utah. The arbitration shall take place in Salt Lake City, Utah. The decision of the arbitrator(s) shall be binding upon the parties. The costs of any such arbitration, including without limitation, the administrative fee, arbitrator’s fees, attorneys’ fees, fees of expert witnesses and travel expenses shall be borne by the losing party. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award or an order of enforcement. The prevailing party in any proceeding to enforce the judgment awarded by the arbitrator shall be entitled to all attorneys’ fees, expert witness fees; travel expenses, court costs; and other litigation expenses.
9.4 Waiver/Severability. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
9.5 Force Majeure. Except for the payment of fees by Company, if the performance of any part of this Agreement is prevented, hindered, delayed or otherwise made impracticable by reason of any cause or event not within the reasonable control of such party and without its fault or negligence, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
9.6 Assignment and Transfer. Either party may assign to a successor in interest without prior consent of the other party.