AdaMarie Subscription Services Agreement
Effective August 23, 2024.
This Subscription Services Agreement (the “Agreement”) governs the services provided by Ada-Marie, Inc. (“AdaMarie”) to the customer (“Customer”). This Agreement supersedes any previously executed Agreement or other master agreement(s) entered into by the Parties which pertain to the Services (defined below). Each of AdaMarie and Customer may be referred to herein individually as a “Party” and collectively as the “Parties
SERVICES AND ORDERING
1.1. Services
As its Services, AdaMarie provides employers with a platform that allows Customers to make job postings, receiving analytics on use and clicks on job postings, and access to the AdaMarie resume database, all of which are included in the fee charged for the Services. Use of the Services is subject to the AdaMarie Terms of Use located here [hyperlink] and the AdaMarie Privacy Policy located here [hyperlink].
1.2. Ordering Services
Customer may access and use the Services to the extent and for the period of time allowed by the subscription purchase. You may select the Services you would like to purchase by selecting “Post a Job” on the AdaMarie website or visiting the AdaMarie pricing page.
1.3. Invoicing and Payment
Customer will pay the fees for the Services in accordance with the payment terms stated on the AdaMarie website.
Customer’s purchases are non-cancelable and payment for Services is non-refundable. Customer will pay or reimburse AdaMarie for all federal, state, and local taxes, including sales, use, gross receipts, VAT, levy, GST, or similar transaction taxes imposed on Customer’s purchase of Services. Customer will have no liability for taxes that are statutorily imposed on AdaMarie, including taxes or fees measured by AdaMarie’s net or gross income.
AdaMarie shall be entitled to reasonable attorneys’ fees and collection costs associated with recovering payment under this Agreement.
2. RESPONSIBILITIES
2.1. Use of Services
Unless otherwise stated in the Agreement, only Customer-designated employees and contractors are authorized to use the Services (“User”). A “User” is an individual who signs-up to use AdaMarie’s Services through this Agreement, and Customer shall be responsible for all acts and omissions of Users accessing the Services, and for User’s compliance with the terms of this Agreement. Customer may only use the Services for Customer’s internal use and may not re-sell or allow access to the Services to any third party.
Customer will promptly and without undue delay notify AdaMarie upon learning of any unauthorized use of the Services or any other breach of security related to the Services. Customer will have access to the Users’ information that it collects in connection with the Users’ access to the AdaMarie Services purchased by Customer. Customer may use such information only as needed for the purpose of contacting individuals about their interest in employment with Customer.
Customer shall use the Services solely for the purpose of contacting potential Candidates for employment with Customer. Customer shall not use the Services to contact Candidates for the purpose of soliciting the purchase or sale or goods and Customer shall not share or sell the personal information of any Candidates accessed through the Services with any third party for any reason other than as contemplated under this Agreement. AdaMarie may communicate to Users about the Services, including how to use the Services.
As used herein, “Candidates” shall refer to any person who responds to a posting of Customer or who has posted their information on AdaMarie’s site in order to use the Services provided by AdaMarie to job seekers. Violation of this provision may result in immediate termination of Customer’s Services and Customer will not be entitled to any refund for pre-paid fees.
2.2. Provision of Services
Customer is responsible for providing AdaMarie with the information necessary for AdaMarie to provide the Services. Customer is solely responsible for the accuracy, quality and legality of such information. If a Service must integrate with third-party systems or applications used by Customer (e.g. an applicant tracking system, “ATS” or a customer relationship management system, “CRM”), Customer is solely responsible for the integration and related activities. AdaMarie disclaims any and all liability for the use of third-party systems or applications residing outside AdaMarie’s systems.
Customer shall ensure that any information that it posts in connection with the Services complies with all applicable laws and regulations and that the information is accurate, correct and truthful.
2.3. Compliance with Laws
With respect to the Parties’ performance of their obligations under this Agreement, the Parties will comply with all applicable laws data protection requirements, and all international, federal, state, provincial and local laws relating, but not limited to (a) corruption practice, bribery, and acts contrary to the public administration including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq.; (b) discrimination against employees or job applicants based on race, color, religion, sex, sexual orientation, gender identity, national origin, veteran status or disability; and (c) U.S. export control laws and regulations that restrict the use and access to controlled information, goods, and technology.
2.4. Scope of AdaMarie’s Services under the CCPA/CPRA
For purposes of the California Consumer Privacy Act, and the California Privacy Rights Act of 2020, and other applicable laws, AdaMarie does not sell personal data to Customers. Customers have access to the Candidate personal information that is available on the AdaMarie platform, except when Candidates (a) direct AdaMarie to share additional information with customers or (b) use AdaMarie’s Services to directly communicate with AdaMarie’s customers. Customer shall be responsible for providing Candidates with any legally required privacy notices related to Customer’s use of the Candidates’ data.
3. CONFIDENTIAL INFORMATION
3.1. Definition
“Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by the recipient to be confidential (pricing, non-public personal data). Confidential Information does not include any portion of the information that recipient can prove (i) was rightfully known to recipient before receipt from discloser; (ii) was generally known to the public on the date of the disclosure; (iii) becomes generally known to the public after the date of the disclosure, through no fault of recipient; (iv) was received by recipient from a third party without any confidentiality obligation; or (v) was independently developed by recipient without breach of this Section 3.
3.2. Limited Use and Non-Disclosure
Recipient will (a) use Confidential Information only for the purposes of furthering the business relationship between the Parties; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except (1) to Affiliates or employees, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this Agreement or (2) as required by law; and (d) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, to the extent applicable, unless authorized in writing by discloser. “Affiliate” of a Party means any entity that the Party directly or indirectly controls, is under common control with, or is controlled by, where control means the ownership of more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
4. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
No right, title or interest in any intellectual property right transfers to the other Party, except for the limited rights stated in the Agreement. As between the Parties, Customer retains all ownership rights in and to Customer’s personal data. Neither Party shall, except as otherwise required by applicable laws, issue or release any announcement, statement, press release or other publicity related to the relationship of the Parties established according to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, Customer grants AdaMarie the permission to develop marketing content around Customer’s experience of using the Services and add Customer’s business name and company logo to AdaMarie’s customer list, website, or marketing materials, in each case, subject to Customer’s objection and guidance on usage. Customer can opt out of this use by sending an email to support@ada-marie.com. Customer further grants AdaMarie permission to use Customer’s marks and logos as required for the performance of the Services. If Customer provides AdaMarie or its Affiliates with any suggestions, enhancement requests, or other feedback about the Services or related technology (“Feedback”), AdaMarie may use such Feedback without any restriction or obligation to compensate Customer.
5. TERM AND TERMINATION
5.1. Term
This Agreement is effective on the date of Customer’s purchase (“Effective Date”) and remains in effect until terminated. All Services will auto-renew for the same tier/period unless Customer terminates its Services prior to the renewal date.
5.2. Termination and Suspension
Either Party may terminate the Services if the other Party materially breaches the Agreement, the AdaMarie Terms of Use or the AdaMarie Privacy Policy and fails to cure the breach within thirty (30) days after receiving written notice of the breach. Either Party may terminate this Agreement immediately upon notice if the other Party (a) files a voluntary petition for bankruptcy or a petition or answer seeking reorganization; (b) has filed against it an involuntary petition for bankruptcy that has not been dismissed within sixty (60) days of the date of filing; (c) makes an assignment for the benefit of creditors; or (d) applies for or consents to the appointment of a receiver, trustee or liquidator for substantially all of its assets or such a receiver, trustee or liquidator is appointed for the other Party. Upon providing advance written notice to Customer (to the extent reasonably practicable), AdaMarie may suspend Customer’s access to the Services if Customer is in breach of the Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. Any such suspension will not relieve Customer from its obligation to pay AdaMarie in respect of the Services. If all subscriptions under this Agreement have expired or been terminated, then either Party may terminate this Agreement for convenience by providing written notice to the other Party.
5.3. Effect of Termination
Termination of the Services and this Agreement will not relieve Customer from its obligation to pay AdaMarie any fees due under the subscription, excluding termination by Customer for AdaMarie’s uncured material breach of this Agreement. If Customer terminates the Services and this Agreement because of AdaMarie’s uncured material breach, AdaMarie will refund a pro-rata share of any pre-paid fees under the applicable subscription. Customer will notify Users that their access to the applicable Services has terminated, and AdaMarie may remove or discard all content that Customer uploaded or otherwise made available to AdaMarie.
Termination of a subscription does not terminate this Agreement; however, termination of this Agreement will result in the immediate termination of all subscriptions. The provisions of this Agreement that by their nature extend beyond the termination of this Agreement will survive termination.
6. LIMITED WARRANTY; DISCLAIMER
AdaMarie warrants that it has the necessary rights to provide the Services to Customer. Customer’s sole remedy and AdaMarie’s sole liability for a breach of the foregoing warranty is AdaMarie’s obligation to defend and indemnify Customer under Section 7.1(a). Except for the warranty stated in this Section 6, AdaMarie makes no representation or warranty about the Services, including any representation that the Services will be secure, uninterrupted or error-free. To the fullest extent permitted under applicable law, AdaMarie disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose.
7. INDEMNIFICATION
7.1 Indemnification Scope
AdaMarie will defend, indemnity and hold Customer, its Affiliates, and their respective directors, officers and Users harmless from and against all third-party claims to the extent resulting from or alleged to have resulted from (a) the Services’ infringement of a third party’s intellectual property right; or (b) AdaMarie’s material breach of the Agreement. Customer will defend and indemnify AdaMarie, its Affiliates, and their respective directors, officers and employees from and against all third-party claims to the extent resulting from or alleged to have resulted from (x) the infringement of a third party’s intellectual property right by any content, data or other information uploaded into AdaMarie’s system or otherwise provided by Customer; (y) Customer’s infringement of a third party’s intellectual property right or privacy right due to Customer’s use of the Services; or (z) Customer’s material breach of the Agreement. With respect to AdaMarie’s indemnity and defense obligations under (a), above, this provision does not cover claims arising from: (i) the combination of the Services with products or services not provided by AdaMarie; (ii) the modification of the Services by any person other than AdaMarie; or (iii) use of the Services in a manner not permitted or contemplated hereunder. If any Services become the subject of an infringement claim, or in AdaMarie’s reasonable opinion is likely to become the subject of such a claim, then, in addition to defending the claim, AdaMarie shall promptly, at its sole expense, either (1) immediately replace or modify the Services to make them non-infringing or cure any claimed misuse of another’s intellectual property or (2) immediately procure for Customer the right to continue using the Services pursuant to this Agreement. If AdaMarie fails to provide one of the foregoing remedies, AdaMarie shall refund to Customer any pre-paid and unused fees for the infringing Services.
7.2 Indemnification Procedures
Each Party will promptly notify the other in writing of any third-party claim. The indemnifying Party will (a) control the defense of the claim; and (b) obtain the other Party’s prior written approval of the indemnifying Party’s settlement or compromise of a claim. The indemnified Party will (y) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (z) assist and cooperate in the defense as reasonably requested by the indemnifying Party at the indemnifying Party’s expense.
8. LIMITATION OF LIABILITY
8.1 Damages Waiver
Subject to Section 8.3, to the fullest extent permitted by law, AdaMarie, and its Affiliates, will not be liable to Customer in connection with the Agreement for lost profits or lost business opportunities, loss of data, or any indirect, incidental, consequential, special or punitive damages. AdaMarie disclaims any liability for personal data breaches, provided that AdaMarie will be liable for personal data breaches that result from AdaMarie’s failure to comply with applicable law.
8.2 Limitations
Subject to Section 8.3, AdaMarie and its Affiliates will not be liable to Customer or its Affiliates in connection with the Agreement for an amount that exceeds the total fees paid or payable to AdaMarie during the term of the applicable Subscription.
8.3 Exclusions
The limitations of liability stated in sections 8.1 and 8.2 do not apply to a Party’s (a) indemnification obligations; (b) liability for fraud, gross negligence or intentional misconduct; (c) liability for death or personal injury; or (d) violation of the other Party’s intellectual property rights.
9. INSURANCE COVERAGE
During the term of this Agreement, AdaMarie will maintain commercially reasonable insurance coverage over its business operations.
10. DISPUTE RESOLUTION
The Agreement is governed by the laws of the State of Illinois, and any action or proceeding (including those arising from non-contractual disputes or claims) related to the Agreement will be brought in the appropriate state or federal court located in Illinois.
The prevailing Party in any litigation may seek to recover its reasonable legal fees and costs.
11. MISCELLANEOUS
11.1 Validity.
If a conflict exists between any of the terms in the Agreement, and the Terms of Use, the terms of this Agreement shall govern. Neither Party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding of any person relating to the subject matter of the Agreement, other than as stated in the Agreement.
11.2 Notice.
Notices will be provided in writing to the email address and/or physical address of the other Party associated with the subscription, unless otherwise stated in the Agreement. Notices are effective on the date of delivery.
11.3 No Partnership.
The Agreement does not create a legal partnership, agency relationship, or joint venture between the Parties. Neither Party has the power or authority to bind the other or to create any obligation or responsibility on behalf of the other. Under no circumstances will any employee of one Party be deemed to be the employee of the other.
11.4 Assignment.
Either Party may assign this Agreement to an Affiliate or a successor-in-interest that is not a competitor of the non-assigning Party, made in connection with (i) the sale of all or substantially all of the assigning Party’s assets; (ii) any change in the ownership of more than 50% of the assigning Party’s voting capital stock in one or more related transactions; or (iii) the assigning Party’s merger with or acquisition by such successor-in-interest, provided that the relevant parties enter into a written agreement to do so. Except for the assignments set forth in the foregoing sentence, neither Party will assign the Agreement in whole or in part without the other Party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned). Any attempted assignment in violation of this restriction is void. The Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.5 Monitoring.
AdaMarie may remotely monitor Customer’s use of the Services to ensure compliance with the Agreement, provided that AdaMarie will not access Customer’s network, systems or devices in connection with such monitoring.
11.6 Severability.
If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the Parties’ intentions and the remaining provisions will not be affected.
11.7 Amendment.
AdaMarie may update this Agreement from time to time with notice to Customer.
11.8 Counterparts.
If this Agreement will be executed then it can be executed electronically and in counterparts, each of which is deemed to be an original and together comprise a single document. Each Party represents and warrants that the individual binding a Party under this Agreement is authorized to do so. If you are an individual accepting these terms on behalf of an entity (such as a business), you represent that you have the legal authority to enter into this Agreement on that entity’s behalf. AdaMarie reserves the right to treat that entity as the subscription owner for purposes of this Agreement (this includes treating the entity as the owner of the enterprise data related to the Services).