EMPLOYER TERMS AND CONDITIONS
Last Modified: June 2019
These Employer Terms and Conditions (the “Employer Terms” or “Agreement”) set forth the terms and conditions governing the relationship between Matchstik, Inc. (“Matchstik”) and the Employer identified in the applicable Employer Services Order (“SO”), order placed through the Matchstik Platform (“Web Order”) or other agreement (“Employer” or “you”) relating to the services provided by Matchstik (the “Services”). Matchstik and Employer are individually referred to as a “Party” and collectively as the “Parties”.
- Scope of Services. Subject to the terms and conditions of this Agreement, Matchstik shall provide the Services set forth in the SO and/or Schedule A, Web Order, or other agreement (the “Services”).
- Changes to Services. Matchstik reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Matchstik’s Services to Employers, the competitive strength of or market for Matchstik’s Services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.
- Third Party Services. Matchstik may make certain third-party products or services available to Employer, or may make its Services available to be used by Employer within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services”), for which Matchstik makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement.
- Access and Use, Employer Restrictions.
- Access and Use. Subject to and conditioned on Employer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Matchstik hereby grants Employer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable SO or Web Order, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Employer’s internal use.“Authorized User” means Employer’s employees, consultants, contractors, and agents (i) who are authorized by Employer to access and use the Services under the rights granted to Employer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
- Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the Matchstik Platform, or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Matchstik Platform, and third-party materials are and will remain with Matchstik and the respective rights holders in the third-party materials.
- Authorization Limitations and Restrictions. Employer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Employer shall not, except as this Agreement expressly permits:
- copy, modify or create derivative works or improvements of the Services;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
- bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
- input, upload, transmit or otherwise provide to or through the Services or Matchstik Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Matchstik Platform or Matchstik’s provision of services to any third party, in whole or in part;
- remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
- access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third-party privacy rights;
- send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
- attempt to gain unauthorized access to the Service or its related systems or networks;
- use the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
- use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, the Matchstik Platform, or which, as determined by Matchstik, may harm Matchstik or users of the Matchstik Platform or Services or expose them to liability;
- use any device, software or routine that interferes with the proper working of the Services or the Matchstik Platform;
- access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Matchstik’s detriment or commercial disadvantage; or
- otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.
- Service Management. Employer shall, throughout the Term, maintain within its organization a service manager to serve as the primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement.
- Employer Obligations. In addition to any other provision of this Agreement, Employer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Employer Materials (as defined in Section 5.2); (ii) timely supply Matchstik with all necessary information and resources including, without limitation, all files, materials, data necessary for the Services, and access to information, personnel, systems and facilities, reasonably requested by Matchstik (and Matchstik shall be entitled to rely upon any instructions, guidelines or information provided to Matchstik by Employer); (iii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iv) comply with all applicable laws (including all employment related laws, and laws regarding privacy and protection of consumer information) in using the Service; (v) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (vi) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Employer systems, and sole responsibility for all access to and use of the Services.
- Suspension or Termination of Services. Matchstik may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Employer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Matchstik receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Matchstik to do so; or (b) Matchstik believes, in its discretion, that: (i) Employer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Matchstik; (ii) Employer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Matchstik’s other rights or remedies, whether at law, in equity, or under this Agreement.
- Employer Control and Responsibility. Employer has and will retain sole responsibility for: (a) all Employer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Employer or any Authorized User in connection with the Services; (c) Employer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Employer or through the use of third-party services (“Employer Systems”); (d) the security and use of Employer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Employer Systems or its or its Authorized Users’ access credentials, with or without Employer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Employer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Employer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
- Access and Security. Employer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Employer Data, including the uploading or other provision of Employer Data for processing by the Services.
- Fees; Payment Terms.
- Fees. Employer shall pay Matchstik the fees and expenses set forth in the applicable SO, Web Order or other agreement (the “Fees”). All Fees are non-refundable.
- Taxes. All Fees and other amounts payable by Employer under this Agreement are exclusive of taxes and similar assessments. Employer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Employer hereunder, other than any taxes imposed on Matchstik’s income.
- Invoices and Payment, Matchstik shall issue invoices to Employer as set forth in the applicable SO or Web Order. Matchstik shall send invoices to Employer at the address set forth in the SO or Web Order, or such other address as Employer may later specify by notice. Except as otherwise set forth in a SO or Web order, and except as otherwise provided for Subscription Services as set forth below, Employer shall pay all amounts due under this Agreement within 10 business days after receipt of the applicable invoice unless otherwise stated in the SO.
- Subscription Services.
- Matchstik’s subscription charges are billed according to the schedule you signed up for (i.e. based on the subscription start and end date, be it daily, monthly, quarterly, semi-annually, or annually) and are not refundable once they have been charged. Matchstik does not issue pro-rated refunds on any unused portion of your subscription.
- A valid payment method, including credit card, is required to process the payment for your subscription Services. You shall provide Matchstik with accurate and complete billing information including full name, address, state, zip code, telephone number, and valid payment method information. By submitting such payment information, you automatically authorize Matchstik to charge all subscription Services Fees incurred through your account to any such payment instruments. Should automatic billing fail to occur for any reason, Matchstik will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
- If you do not cancel any subscription Services prior to the end of the subscription Services term, the subscription Services will automatically renew at the current Matchstik monthly rate and be automatically billed and charged to you using the payment method originally used to purchase the subscription Services. Matchstik will provide you with a reasonable prior notice of any change in subscription fees to give you an opportunity to terminate your subscription Services before such change becomes effective. Your continued use of the subscription Services after the fee change comes into effect constitutes your agreement to pay the modified subscription Services fee amount.
- Expenses. Except as otherwise agreed to in an SO or SOW, Employer agrees to reimburse Matchstik for all preapproved, reasonable and necessary out-of-pocket expenses properly incurred or paid by Matchstik in connection with, or related to, the performance of the Services.
- Intellectual Property Rights.
- Services and Matchstik Materials/Employer-Specific Content. All right, title and interest in and to the Matchstik Materials, including all Intellectual Property Rights therein, are and will remain with Matchstik. Employer has no right, license, or authorization with respect to any of the Matchstik Materials except as expressly set forth in this Agreement. All other rights in and to the Matchstik Materials are expressly reserved by Matchstik. “Matchstik Materials” means the Services, the Matchstik Platform, specifications, documentation, and Matchstik systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Services or otherwise comprise or relate to the Services, including all data collected by the Matchstik Platform and Services and all job seeker candidate pool and data. Notwithstanding the above, Matchstik Materials shall not include any text, images, graphic designs, audio, video or other proprietary content provided by Employer specific to the identification, description of Employer and its job opportunities and openings (“Employer-Specific Content”). To the extent Matchstik obtains any rights to the Employer-Specific Content, Matchstik hereby assigns to Employer all right, title and interest in and to the Employer-Specific Content. To the extent Employer obtains any rights to the Matchstik Materials, Employer hereby assigns to Matchstik all right, title and interest in and to Matchstik Materials. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- Employer Intellectual Property License. Employer grants to Matchstik a limited, non-exclusive, royalty-free right and license during the Term, with the right to use the Employer Materials as necessary to fulfill Matchstik’s obligations under this Agreement, solely for the purpose of providing the Services. “Employer Materials” means trademarks, trade names, service marks, trade dress, designs, artwork and logos of Employer associated with the Services, all images, data and other materials provided by the Employer for the purposes of this Agreement, and all Employer-Specific Content and other content provided by Employer for posting on the Matchstik Platform or through the Services.
- Feedback. If Employer or any Authorized User transmits or provides any communications or materials to Matchstik by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Matchstik Platform (“Feedback”), Matchstik is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Employer hereby assigns to Matchstik on Employer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Matchstik is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Matchstik is not required to use any Feedback.
- Publicity. Employer agrees that Matchstik may use Employer’s business name, website URL and logo on its websites and in its marketing materials, identifying Employer as a current or former customer of Matchstik.
- Confidentiality. Each Party shall (a) use Confidential Information (as defined below) of the other Party only for the purposes of exercising rights or performing obligations in connection with this Agreement; (b) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other Party (including without limitation all precautions employed by a Party with respect to its own Confidential Information); and (c) during the Term and thereafter, not disclose the Confidential Information to any third party. Notwithstanding the foregoing, either Party may disclose Confidential Information (a) to its employees or independent contractors for the purpose of performing its obligations or exercising its rights hereunder, provided that each such employee and independent contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein; and (b) if required by law or a court, provided the receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the disclosing Party to participate in the proceeding. “Confidential Information” means and includes the terms of this Agreement and all confidential and proprietary information of a Party, including, without limitation, computer programs, software, technical drawings, algorithms, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), designs, schematics and other technical, business, financial, Employer and product information, data and development plans, of any nature and in any form whatsoever, provided that such information is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation or is disclosed in such a manner that a reasonable person would understand that such information is confidential and proprietary. Employer agrees, without limitation, that Matchstik’s matching process, assessment tools and methodologies, Matchstik’s product roadmap or strategic roadmap, and Matchstik’s prices, proposals and quotes related to a SO or Web Order, are Confidential Information of Matchstik. Confidential Information does not include information that the receiving Party can document: (i) is or becomes (through no improper action or inaction by the receiving Party) readily available to the public; (ii) was in its possession or known by it without restriction on disclosure or use prior to receipt from the disclosing Party; (iii) was rightfully disclosed to it by a third party that rightfully received such information without restriction on disclosure or use; or (iv) was independently developed without use of any Confidential Information of the disclosing Party.
- Term and Termination.
- Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable SO, Web Order or other agreement. For subscription Services, if Employer does not cancel any subscription Services prior to the end of the subscription Services term, the subscription Services will automatically renew for an additional term equivalent to the expiring term (e.g. if the term was 30 days it will automatically renew for another 30 day term; if the term was 6 months, it will automatically renew for an additional 6 month term) at the then current rate for the applicable renewal term, and be automatically billed and charged to you using the payment method originally used to purchase the subscription Services. Matchstik will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your subscription Services before such change becomes effective. Your continued use of the subscription Services after the fee change comes into effect constitutes your agreement to pay the modified subscription Services fee amount.
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- either party may terminate this Agreement effective on written notice to the other party, if the other party materially breaches this Agreement or the applicable SO or Web Order, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ninety (90) days (ten (10) days for any failure to pay amounts due) after the non-breaching party provides the breaching party with written notice of such breach; and
- either party may terminate this Agreement (and all SOs and Web Orders), effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Surviving Terms. Any provision or other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
- Representations and Warranties.
- Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the entering into of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; (d) this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) that it will at all times comply with applicable law.
- Additional Matchstik Warranties.Matchstik represents and warrants to Employer that Matchstik will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
- Additional Employer Representations, Warranties and Covenants. Employer represents, warrants and covenants to Matchstik that (i) Employer owns or otherwise has and will have the necessary rights and consents in and relating to the Employer Materials so that, as received by Matchstik and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, (ii) that its job posting, hiring practices, and interactions and communications with job seekers or candidates will at all times be ethical and nondiscriminatory.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, SECTION 9.2, ALL SERVICES AND MATCHSTIK MATERIALS ARE PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND MATCHSTIK DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES OR MATCHSTIK MATERIALS. MATCHSTIK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MATCHSTIK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR MATCHSTIK MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET EMPLOYER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SERVICES AND MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR MATERIALS IS STRICTLY BETWEEN EMPLOYER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND MATERIALS.
- SCREENING TOOLS. Matchstik may make available to Employer certain screening tools, assessments and other candidate information to Employer for use by Employer in its job application and hiring process. Matchstik is licensing these tools to Employer to be used by Employer solely as it determines. By using any screening tools, assessments or information made available to you by Matchstik, Employer agrees that it has made the determination to use these tools as part of its application and hiring process, and the questions asked and how and when to use the screening tools, assessments and information is solely determined by Employer. Employer is solely responsible for determining whether a candidate or job seeker is qualified. Employer is also solely responsible for the use of the screening tools, assessment and information including any results which are considered to have a “disparate impact”. Employer further acknowledges that it is responsible for offering alternative methods of screening, if required by the Americans with Disabilities Act or any other equivalent state act. Matchstik does not make any warranties relating to compliance with the Americans with Disabilities Act or any equivalent state act.
- Matchstik Indemnification. Subject to the limitations of Section 11, Matchstik shall indemnify, defend and hold harmless Employer from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) incurred by Employer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an affiliate of Employer) that Employer’s use of the Services (excluding Employer Materials and third party materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
- access to or use of the Services or Matchstik Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Matchstik;
- modification of the Services or Matchstik Materials other than: (i) by or on behalf of Matchstik; or (ii) with Matchstik’s written approval in accordance with Matchstik’s written specification;
- failure to timely implement any modifications, upgrades, replacements or enhancements made available to Employer by or on behalf of Matchstik; or
- act, omission or other matter described in Section 10.2.
- Employer Indemnification. Employer shall indemnify, defend and hold harmless Matchstik and its officers, directors, employees, agents, stockholders, successors and assigns (each, a “Matchstik Indemnitee”) from and against any and all Losses incurred by such Matchstik Indemnitee in connection with any Action by a third party that arise out of or relate to any: (a) Employer Materials, including any processing of Employer Materials by or on behalf of Matchstik in accordance with this Agreement; (b) Employer hiring practices or interactions with job seekers or candidates; (c) Employer’s use of screening tools, assessment and information provided by Matchstik; (d) allegation of facts that, if true, would constitute Employer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Employer, any Authorized User, or any third party on behalf of Employer or any Authorized User, in connection with this Agreement; or (f) Employer’s violation or alleged violation of applicable law.
- Exclusive Remedy. THIS SECTION 10 SETS FORTH EMPLOYER’S SOLE REMEDIES AND MATCHSTIK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND MATCHSTIK MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
- Limitations of Liability.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL MATCHSTIK OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MATCHSTIK UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY EMPLOYER TO MATCHSTIK IN THE 3 MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Force Majeure. Neither Party shall be liable for any default or delay in the performance of any of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Notices. Any notice to be given under this Agreement shall be in writing and delivered by hand U.S. mail or electronic mail to the address listed:
If to Matchstik:
Mailing Address: 1160 Berea Drive, Boulder CO 80305
If to Employer: the email or mailing address set forth in the applicable SO, Web Order, or other agreement.
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rdday after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Non-Solicitation/Non-Hire. During the term of this Agreement, and for a period of one (1) year following the expiration or termination of this Agreement (including any SO or Web Order), Employer will not, directly or indirectly, (i) solicit, employ, offer employment to, or otherwise engage as an employee, independent contractor, or otherwise, any individual who is or was an employee of Matchstik at any time during the Term, or in any manner induce or attempt to induce any employee of Matchstik to terminate their employment with Matchstik, or (ii) materially interfere with the relationship of Matchstik with any individual who at any time was an employee of Matchstik.
- Entire Agreement. This Agreement, together with the SO, Web Order, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- AssignmentNeither Party may assign this Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other Party; provided, however, that, notwithstanding the foregoing, Matchstik may assign this Agreement to (i) any affiliate or (ii) a third party by way of merger, acquisition, consolidation or sale or transfer of all or substantially all of its assets or membership units. Any purported assignment of rights in violation of this Section is void.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Amendment and Modification; Waiver. Except as otherwise provided, no waiver or modification of this Agreement or any SO or Web Order, will be binding upon either Party unless made in writing and signed by duly authorized representatives of such Party, and no failure or delay enforcing any right will be deemed a waiver of such right.
- Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law. All matters relating to the Services, the Matchstik Platform and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction).
(a) Scope, Governing Rules.The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall exclusively be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”).
(b) Authority of Tribunal, Judicial Review.The award rendered by the arbitrator shall be final and non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction.
(c) Selection of Tribunal.There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
(d) Seat of Arbitration. The seat or place of arbitration shall be Denver, Colorado, USA, and the Parties waive any objection to arbitration taking place in Denver.
- Attorneys’ Fees. In the event that any arbitration or any other action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other party arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.