TalentGuard Master Terms & Conditions Agreement
Summary
1. Definitions
2. Provisions of Services
3. Customer Responsibilities
4. TalentGuard Responsibilities
5. Subscription and Payment of Invoices
6. Service Level Agreement
7. Legal Compliance
8. Aggregated Data
9. Limitation of Liability: Insurance
10. Confidentiality
11. TalentGuard Proprietary and Other Rights
12. Customer Owned Content
13. Feedback and Suggestions
14. Term and Termination
15. Maintenance and Support
16. Representation and Warranties: Indemnities
17. Access and Data Security; Security Policy
18. TalentGuard Privacy Policy and GDPR Compliance
19. General
Exhibit A: Maintenance and Support Policies
As of December 31st, 2023
Former versions available upon request at legal@talentguard.com
This Master Software and Services Agreement outlines the standard contractual terms and conditions (“Terms”) that apply to the provision of any products or services by TalentGuard, Inc. (“TalentGuard”) to the entity identified on the Sales Order Form (“Customer”). These terms are incorporated into the Order Form and together, the Sales Order Form and these Terms are the “Agreement.” A “Sales Order Form” means any order for the provision of products or services.
RECITALS
TalentGuard is a developer and vendor of proprietary software and services related to enterprise talent management;
Customer desires to engage TalentGuard to provide the Services to Customer and its Employees;
Therefore, in consideration of the promises contained in this Agreement, TalentGuard and Customer agree as follows:
TERMS AND CONDITIONS
1.1. “Services” means the proprietary software as a service provided by TalentGuard (“TalentGuard SaaS”) and made available through a URL in a hosted environment, Professional Services and other products and services provided by TalentGuard or its vendors and partners as further described in the applicable Order Form. The Services include all products, modules and services as set forth in the applicable Order Form.
1.2. “Materials” shall mean any materials or content supplied by TalentGuard, its partners or any other third-party in connection with this Agreement for use by Customer. In addition to the TalentGuard SaaS, this can include but is not limited to competencies, job roles, training materials, URL’s, hyperlinks and logos.
1.3. “Confidential Information” shall mean information of either party that is not generally known to the public, including non-public personal information, health and financial data, software, technical information, product plans, website usage statistics, pricing, marketing and sales information, business plans, customer lists, individual employee/employment information, “know-how” and trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.
1.4. “Documentation” shall mean program documentation, user manuals, handbooks and other materials describing the use, design, installation, operation and maintenance of the TalentGuard SaaS.
1.5. “SLA” shall mean the Service Level Agreement as described in Section 6 below.
1.6. “Employee” is a unit of license measure by with the TalentGuard SaaS can be accessed. An Employee is a unique person employed in or otherwise paid by or acting on behalf of Customer’s enterprise, whether or not given access to the TalentGuard SaaS. Sufficient entitlement must be licensed to cover the total number of Employees who are authorized to access the TalentGuard SaaS during the Term specified in the Order Form.
1.7. “Force Majeure” shall mean the occurrence of:
a) an act of government, embargo, national emergency requirement, act of war (whether declared or not), hostilities, invasion, act of foreign enemies, terrorism or civil disorder;
b) an industry-wide strike or strikes or other industrial action, the settlement of which is beyond the reasonable control of the affected party;
c) an unavoidable accident, act of God, fire, or natural disaster;
d) the unavoidable loss or unavailability of necessary resources such as electricity or internet access; or
e) any other unforeseeable circumstances beyond the control of the affected party against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using reasonable commercial efforts, which in each case directly causes such affected party to be unable to comply with all or a material part of its obligations under this Agreement.
1.8. “Privacy Policy” refers to TalentGuard’s privacy policies, posted at: https://talentguard.com/product-privacy-policy/. TalentGuard’s privacy policies may change from time to time.
1.9. “Security Policy” refers to TalentGuard’s security policies, posted at: _ https://talentguard.com/wp-content/uploads/2020/10/TalentGuard-Security-Policy.pdf. TalentGuard’s security policies may change from time to time.
1.10.
“Order Form” shall mean all applicable sales and service Order Forms and any additional TalentGuard implementation forms required in order for TalentGuard to provide the Services, and refers to the detailed products and services listed and described in the order Form, the respective responsibilities of the parties and payment terms for the particular Services chosen by Customer.
1.11. “Professional Services” shall mean the consulting, implementation, training and advisory services that TalentGuard may provide to Customer under an applicable Order Form to enable Customer and Customer’s Employees to better optimize the TalentGuard SaaS.
2.1 TalentGuard will provide the Services selected by Customer, as indicated on the applicable Order Form and in accordance with the terms and conditions of this Agreement, to Customer and its Employee. TalentGuard agrees to fulfill its responsibilities as specified in this Agreement and Order Form. TalentGuard will have no liability under this Agreement or any Order Form to the extent that TalentGuard’s failure to deliver the Services arises out of Customer’s failure to comply with its obligations under this Agreement or any Order Form.
2.2 Talentguard grants Customer a non-transferable, non-assignable (except as expressly permitted under the terms of this Agreement) license and right to access and use the TalentGuard SaaS during the Term subject to compliance with the terms and conditions of this Agreement. The TalentGuard SaaS delivers its functionality over the Internet to support enterprise talent management and human resources processes.
2.3 Customer may use the Services for its own use and for the benefit of its Employees. A single license may only be used by one individual – a single license shared by multiple individuals is not permitted. TalentGuard reserves the right to revoke or suspend any user without refund if it has reason to believe that a licensing violation has occurred. The access license for an Employee who has previously been licensed to access the Services and whose employment has been terminated or who otherwise has ceased to access the Services may be transferred to another Employee for access at no additional licensing charge.
2.4 TalentGuard may modify the Services during the Term, including without limitation, by adding, modifying or removing features at any time during the Term in its sole discretion, so long as there is no change that would materially affect Customer’s ability to use the Services for the purposes set forth in this Agreement or the Order Form. TalentGuard will notify Customer in writing within 30 days of any modifications that could restrict Customer or its Employees from using the Services for the purposes set forth in this Agreement or the Order Form.
2.5 The Services are hosted by TalentGuard or TalentGuard’s hosting provider. TalentGuard will ensure that any hosting provider utilized by TalentGuard will maintain no less than industry standard information security standards and safeguards.
2.6 Any Professional Services to be performed under this Agreement shall be set forth and described in an Order Form executed by both parties. Such Order Form shall describe the services to be performed, the work product or deliverables to be developed, the prices to be paid for such services, applicable timelines for delivery, contact information for both parties and any specific specifications or criteria applicable to such services. If additional Professional Services are to be performed, then such services shall be described as stated above in an amended or additional Order Form to be executed by both parties. Professional Services shall be performed in accordance with the professional standards which reasonably and ordinarily can be expected from skilled and experienced persons engaged in the same type of undertaking. TalentGuard will allocate personnel, subject to availability, with the most relevant and applicable knowledge to Customer’s project. Personnel who are assigned to work with Customer in connection with Professional Services provided under this Agreement shall have completed personal and business reference checks, verification of previous employment and criminal background checks prior to being assigned. Customer will be notified in writing in advance in the event that the performance of Professional Services is subcontracted to a third party, and TalentGuard warrants such subcontractors shall be contracted to at least the same standards of performance as set forth in this Agreement and the applicable Order Form.
2.7 Notwithstanding any of the terms or conditions set forth in this Agreement, or any other agreement between TalentGuard and Customer, any separately identified third-party software, components, embedded content or products provided to Customer pursuant to any Order Form which TalentGuard identifies as being third-party software (“Third-Party Software”), are licensed to Customer under the terms of the applicable third-party license agreement(s) for the Third Party Software. The Third-Party Software vendor shall be responsible for all warranty, support, indemnification, performance and all other issues, claims and remedies relating to its software. The terms and conditions of this Agreement, including without limitation all provisions relating to warranties, indemnification, support, SLA’s, performance standards, and/or refunds, shall not be applicable to Third-Party Software.
2.8 The Services may include links to other Web sites, related to the Services, that are not owned or operated by TalentGuard (“Third-Party Web Sites”) and that Customer may log into and access solely at its option. TalentGuard provides these links to Customer as a convenience only. TalentGuard does not verify, make any representations concerning, or take responsibility for, any Third-Party Web Sites, whether accessed via the Talentguard SaaS or by Customer on its own, including without limitation the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third-Party Web Sites. This Agreement and the Privacy Policy do not apply to such Third-Party Web Sites, and Customer should review such Third-Party Web Sites’ privacy policies, terms and conditions and business practices as they may be different from those of TalentGuard. It is Customer’s sole responsibility to comply with such terms. Customer’s dealings and communications with any third party in connection with the Third-Party Web Sites are solely between Customer and such third party. Customer’s use of any Third-Party Web Sites and third-party product, process, publication, or service is entirely at its own risk.
3.1 Customer is solely responsible for its use of the Services provided to Customer by TalentGuard. Customer is responsible for maintaining the confidentiality and security of the access credentials of Customer and Employees, and for all activity occurring under Customer’s account, which results from Customer’s activity or Customer’s failure to maintain the security and confidentiality of access credentials. Customer agrees to notify TalentGuard as soon as practicable if it is suspected or discovered that a Customer password or account number or other account information has been compromised.
3.2 Customer will not permit Employees, and will not knowingly permit any third party, to undertake any action intended to interfere with effective operation of the Services, or violate any applicable law or regulation in connection with this Agreement.
3.3 Customer will not use the Services or the TalentGuard SaaS to engage in any illegal or abusive behavior, including, but not limited to any attempts to:
a) Access or use data, services, systems or networks in any manner that is unauthorized, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures unless authorized in writing by TalentGuard;
b) Interfere with the Services, host or network including, without limitation, denial of service attacks or other deliberate attempts to overload the system unless authorized in writing by TalentGuard;
c) Introduce or otherwise distribute any “time bomb,” virus, drop dead device, malicious logic, worm, Trojan horse, trap or back door virus, spyware or other malware or other harmful computer code designed to interrupt, destroy or limit the use of any computer software or hardware, or collect, use or disseminate any message from or through any computer;
d) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, testing environment or any part thereof;
e) Attempt to or actually access the Services by any means other than through the interface provided by TalentGuard;
f) Attempt to or actually override any security component of the Services, host or network;
g) Permit any unauthorized individuals or third parties to access the Services.
3.4 TalentGuard monitors the use of the Services, and if TalentGuard determines that Customer or Employees have breached the provisions of this Section 3, TalentGuard may, at its sole discretion, take any appropriate actions, which may include immediate suspension of Customer’s access to the Services.
4.1 TalentGuard shall provide: (a) the Services in accordance with the requirements and terms and conditions of this Agreement and all applicable Order Forms; (b) all updates and upgrades to the Services to Customer that TalentGuard provides to its customers generally at no additional charge; and (b) Support (“Support”) in accordance with Section 15 below and pursuant to the terms of TalentGuard’s standard customer support policies.
5.1 As consideration for the subscription to the Services, Customer shall pay all fees (“Fees”) set forth in the Order Form. All Fees owed by Customer are exclusive of, and Customer shall pay, all sales, use, VAT, excise, withholding, and other taxes and duties that may be levied in connection with this Agreement (excluding franchise, payroll, income and other taxes levied directly on TalentGuard, for which are TalentGuard is solely responsible). In case any taxes are withheld by Customer as per applicable tax laws the amount payable to TalentGuard shall be grossed up to cover such withholding tax and Customer shall pay the amounts due to TalentGuard net of such withholding taxes. Except as expressly set forth in this Agreement, all fees are non-refundable.
5.2 TalentGuard’s invoices shall be due within the time period set forth in the Order Form, or if no time period is set forth therein, then within thirty (30) days from receipt of invoice (in either case, the “Payment Period”). If payment is not received within the Payment Period (i) such invoice shall accrue a late charge equal to the lesser of (a) 1½% per month or (b) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law, and (ii) TalentGuard may also terminate the applicable Order Form and all Services being provided thereunder upon ten (10) days’ written notice to Customer.
6.1 TalentGuard will use commercially reasonable efforts to make the Services available with an Annual Uptime Percentage of at least 99.5% (“Service Commitment”).
7.1 Each party will comply with all applicable laws and regulations (including the U.S Export Administration Act and all other applicable U.S. and foreign export control laws and restrictions) with respect to its activities under this Agreement.
8.1 As between the parties, TalentGuard owns the aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services (the “Aggregated Data”). Nothing herein shall be construed as prohibiting TalentGuard from utilizing the Aggregated Data, provided that TalentGuard’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services.
9.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE CLAIM), FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION OR DELAY, LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY STATUTORY OR REGULATORY FINES OR PENALTIES INCURRED, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES.
9.2 EXCEPT FOR A PARTY’S INFRINGEMENT INDEMNIFICATION OBLIGATIONS IN SECTION 16.3 AND 16.4, OR FOR DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ANY AND ALL LOSSES, DAMAGES, COSTS OR EXPENSES ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE CLAIM), WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED TWO TIMES THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO TALENTGUARD FOR TALENTGUARD SERVICES (i.e.; EXCLUDING ALL AMOUNTS PAID OR PAYABLE WITH RESPECT TO THIRD-PARTY SOFTWARE) UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INITIATION OF THE CLAIM.
9.3 The parties expressly acknowledge and agree that TalentGuard and Customer have entered into this Agreement in reliance upon the limitations of liability specified herein. Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply in such jurisdictions. In such event, the liability of either party for such damages with respect to the Services will be limited to the greatest extent permitted by applicable law in such jurisdiction.
9.4 TalentGuard will, for the term of this Agreement and 12 months following termination or expiration of the Agreement, maintain appropriate liability coverage to cover any potential liabilities arising under this Agreement. The limits of such shall be at least commensurate with the limits of liability stated in this Section 9. TalentGuard will designate Customer as a certificate holder on TalentGuard’s insurance coverage and shall provide a Certificate of Insurance evidencing such coverage to Customer upon request.
10.1 Confidential Information may not be shared or used unless such disclosure is to the receiving party’s personnel, including employees, agents, advisors and subcontractors, on a “need-to-know” basis in connection with the Services and the receiving party’s obligations under the Agreement. The parties agree to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall, subject to any applicable lawful restrictions, provide advance notice to the other party as soon as practicable before making such a disclosure and reasonably cooperate with the disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing party’s expense. The receiving party shall use commercially reasonable efforts to limit such disclosure to the minimum required to comply with such demand. The obligations with respect to Confidential Information shall continue for so long as the receiving party is in possession of the Confidential Information.
11.1 As between Customer and TalentGuard, the TalentGuard Intellectual Property is, and shall at all times remain, the sole and exclusive property of TalentGuard. TalentGuard also retains all ownership in any added functionality or modifications made to the TalentGuard Intellectual Property pursuant to any Customer request, and TalentGuard has sole and complete discretion as to the inclusion or exclusion of any additions or modifications to the TalentGuard Intellectual Property. Customer shall have no right to use, copy, distribute or create derivative works of the TalentGuard Intellectual Property except as expressly provided herein. TalentGuard shall have the right, in its sole discretion, to modify the TalentGuard Intellectual Property. “TalentGuard Intellectual Property” means the Services and Materials, and all improvements, changes, enhancements and components thereof, and all other proprietary information and materials of TalentGuard and/or its licensors that are delivered, provided or used by TalentGuard in the course of performing the Services, as well as all other intellectual property owned by TalentGuard and all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how, as well as and any underlying source code and object code related thereto. This Agreement does not grant Customer any intellectual property rights in or to the TalentGuard Intellectual Property, or any of their components.
11.2 Customer recognizes and agrees that: (i) the Services and Materials are protected by copyright, trademark, patent and other intellectual property laws; (ii) Customer may not use any TalentGuard trademarks, tradenames, logos or other brand identifications except in connection with the Services and as authorized by this Agreement or otherwise by TalentGuard in writing, and (iii) Customer does not acquire any right, title, or interest in or to the Services or Materials except the non-exclusive, limited and temporary right to access and use the Services and Materials as necessary pursuant to this Agreement and any Order Form.
11.3 Customer grants TalentGuard limited permission to view data and take actions within Customer’s TalentGuard account in order to deliver the Services, including without limitation support, maintenance, and onboarding. Customer also grants permission for TalentGuard to make design choices to technically administer the Services, for example, how the Services back up data to maintain data security. Customer may request TalentGuard to perform actions within Customer’s TalentGuard account, and in doing so hereby grants TalentGuard the limited permission to view, create, and modify data in Customer’s TalentGuard account in order to fulfill the request, including but not limited to employee records, reports, and account configurations. While not limited to the following, additional examples of the limited permissions encompassed in this Section are: viewing or taking action within an employee’s TalentGuard account in order to reproduce an issue or bug, creating or uploading career paths in the career development process, importing performance scores, exporting data in order to produce a custom report and similar actions as necessary to provide the Services as required by this Agreement and the applicable Order Form,
11.4 With written permission from Customer, TalentGuard and its partners may use Customer’s name and logo on TalentGuard’s website located at http://www.talentguard.com for purposes of identifying Customer within a customer list. Use of Customer’s name and logo on TalentGuard’s or any partner’s website will be revocable for any reason at any time by Customer.
12.1 As between TalentGuard and Customer, any and all information, data, results, plans, sketches, text, files, links, images, photos, videos, audio files, notes or other materials uploaded by Customer or an Employee through the Services remain the sole property of Customer (“Customer Content”). Customer Content does not include any IBM or other third-party content that is provided to Customer by TalentGuard.
12.2 THIS AGREEMENT DOES NOT GRANT TALENTGAURD ANY RIGHTS TO CUSTOMER CONTENT OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN THAT CUSTOMER CONTENT EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT AS NECESSARY TO PROVIDE AND IMPROVE THE SERVICES IN ACCORDANCE WITH THE REQUIREMENTS OF THIS AGREEMENT AND THE APPLICABLE ORDER FORMS, OR OTHERWISE IN ACCORDANCE WITH CUSTOMER’S WRITTEN INSTRUCTIONS.
13.1 TalentGuard or its systems may send or generate surveys to users to solicit feedback regarding performance of the Services and suggestions for improvements (such feedback will be stored in anonymous and aggregated form). All ideas or suggestions provided by Customer or Employees to TalentGuard with respect to any of the Services will be considered non-confidential and non-proprietary. To the extent that TalentGuard makes any modifications or incorporates any idea or suggestion provided by Customer to TalentGuard, TalentGuard will not owe or pay any compensation to Customer. Customer, and each Employee (to the extent Customer has such right), hereby grants TalentGuard an irrevocable, royalty-free perpetual license to use all feedback and suggestions regarding the Services.
14.1 The Term of this Agreement will begin on the Effective Date of the Agreement, and continue through the time periods as set forth in the initial and subsequent Order Forms, unless earlier terminated pursuant to this Agreement. Thereafter the Term will be automatically renewed for consecutive renewal time periods equal to the initial time period, pursuant to terms and conditions, including pricing, as set forth in the applicable Order Form, unless terminated by either party pursuant to Section 14.2 below or by written notice delivered to the non-terminating party at least ninety (90) days prior to the end of the then-current Term. Notwithstanding anything else set forth in this Section 14.1, this Agreement will remain in effect while any Order Form is in effect and termination of this Agreement shall not result in the termination of any existing Order Form, unless this Agreement is terminated by either party pursuant to 14.2 below.
14.2 Either party may terminate this Agreement for the material breach of any provision by the other party if such material breach remains uncured for thirty (30) days after receipt of written notice of such breach describing the breach from the non-breaching party. Such termination right shall be in addition to any other rights and remedies that may be available to the non-breaching party. In the event the Agreement is terminated for breach pursuant to this Section 14.2, all Order Forms are simultaneously terminated. Upon expiration or termination of this Agreement, Customer shall immediately cease using the Services.
14.3 It is TalentGuard’s policy to permanently delete all of Customer Content 30 days after this Agreement is terrminated. Customer must export all Customer Content within such 30-day window.
14.4 The following provisions and obligations will survive termination of this Agreement: (i) any obligation of Customer to pay for Services up to the date of termination; (ii) Sections 1, 2.7, 2.8, 5, 9, 10, 11.1, 11.2, 12.1, 12.2, 14, 16 and 19 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill the essential purpose of this Agreement.
15.1 Organizational Administrator (OA) & End User Technical Support. TalentGuard will provide assistance by responding to help requests submitted through the TalentGuard Help Center relating to the TalentGuard SaaS solution included in this agreement between the hours of 8:00AM and 5:00PM CST Monday through Friday (excluding Bank Holidays and other recognized holiday periods in the US). It will, under normal operating conditions, use its best endeavors (utilize any means necessary) to give a response on the intended course of action to a query within twenty-four (24) business hours of the query being received.
15.2 Service Levels. TalentGuard’s Maintenance and Support Service Levels are set forth in Exhibit A.
16.1 TalentGuard and Customer expressly warrant that each, respectively, has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its respective ability to perform as required by this Agreement.
16.2 TalentGuard warrants that (a) the Services will be performed accordance with the professional standards which reasonably and ordinarily can be expected from skilled and experienced persons engaged in the same type of undertaking, (b) the TalentGuard SaaS will materially conform to its then-current Documentation, and (c) Professional Services provided under this Agreement will materially conform to the requirements as set forth in the applicable Order Form. As Customer’s exclusive remedy and TalentGuard’s sole liability for breach of this warranty, (a) TalentGuard shall use reasonable commercial efforts to correct the non-conformance at no additional charge to Customer, or (b) in the event TalentGuard is unable to correct such non-conformance within thirty (30) days following it receipt of written notice describing such non-conformity, TalentGuard shall refund to Customer any unused subscription fees paid that are attributable to the non-conforming TalentGuard SaaS component (calculated from the date that TalentGuard receives such notice), and any Professional Services fees paid that are attributable to non-conforming Professional Services. To receive warranty remedies, Customer must promptly report and describe any non-conformities in writing to TalentGuard, but no later than thirty (30) days following the date the non-conformity is identified by Customer.
16.3 If a third party claims the Services infringes that party’s patent, copyright or other proprietary right, TalentGuard will indemnify, defend and hold harmless Customer, its officers, directors, representatives and employees from and against such claim at TalentGuard’s expense and pay all costs, damages, and attorney’s fees that a court finally awards or that are included in a settlement approved by TalentGuard, provided that Customer: (a) promptly notifies TalentGuard in writing of the claim; and (b) allows TalentGuard to control, and cooperates with TalentGuard in, the defense and any related settlement. If such a claim is made, TalentGuard may continue to enable Customer to use the Services or to modify it such that it becomes non-infringing. If TalentGuard determines that these alternatives are not reasonably available, TalentGuard may terminate the Services without any liability to Customer upon notice to Customer and with the refund of any prepaid and unused fees on a pro-rata basis. The infringement indemnity obligations in this Section 16.3 do not apply to the extent the infringement claim arises from (a) any technology not provided by TalentGuard or otherwise identified by TalentGuard in writing as interoperable, (b) use of the Services other than in accordance with this Agreement and the applicable Services documentation, (c) Customer Content, and/or (d) modification or alteration to the Services by anyone other than TalentGuard or otherwise as authorized by TalentGuard.
16.4 If a third party claims that any part of Customer Content infringes or violates a patent, trademark, trade secret, copyright or other intellectual property right, or otherwise makes a claims relating to or arising out of Customer Content, Customer will indemnify, defend and hold harmless TalentGuard, its officers, directors, representatives and employees from and against that claim at Customer’s expense and pay all costs, damages, and attorney’s fees that a court finally awards or that are included in a settlement approved by Customer, provided that TalentGuard: (a) promptly notifies Customer in writing of the claim; and (b) allows Customer to control, and cooperates with Customer in, the defense and any related settlement.
16.5 THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER TALENTGUARD NOR CUSTOMER MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TALENTGUARD DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR FREE OR UNINTERRUPTED. TALENTGUARD MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION IN OR FROM AN END USER OR CUSTOMER SERVICES ACCOUNT. TALENTGUARD IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, APPROPRIATENESS, OR LEGALITY OF DATA, USER POSTS, OR ANY OTHER INFORMATION POSTED BY A USER.
17.1 Access, if any, to Customer’s computer, telecommunication or other information systems (“Systems”) is hereby granted solely to provide the Services described in this Agreement and is limited to those specific systems, time periods, and personnel as are reasonably needed to effect the purpose of this Agreement. Access is subject to business control and information protection policies, standards, and guidelines as may be provided by Customer. Use of any other systems is expressly prohibited. Without limiting the foregoing, TalentGuard warrants that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Customer’s systems.
17.2 TalentGuard has implemented and shall maintain industry standard administrative, physical and technical safeguards to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of Customer’s data (including any applicant or Employee data provided by Customer) (“Customer Data”) which is held or accessed by TalentGuard. TalentGuard will not sell, disclose, transfer, share or rent any Customer Data under any circumstances. In addition, TalentGuard has implemented and shall maintain industry standard administrative, technical, and physical safeguards to secure its facilities and systems from unauthorized access and to secure Customer Data and Customer Content. TalentGuard shall notify Customer as soon as reasonably possible following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of any Customer Content or Customer Data.
17.3 Customer shall comply with the provisions of the Security Policy. Any questions or issues regarding TalentGuard’s Security Policy should be addressed to securitypolicy@talentguard.com
18.1 TalentGuard’s Privacy Policy applies to TalentGuard’s Website and all services provided by TalentGuard. TalentGuard complies with the EU General Data Privacy Regulations (“GDPR”) and applies operating practices and procedures to ensure full adherence to the GDPR. TalentGuard generally operates as a “Processor” of data under the GDPR. Please see the TalentGuard Privacy Policy for additional information regarding TalentGuard’s privacy policies and the GDPR. Any questions or issues regarding TalentGuard’s Privacy Policy should be addressed to privacypolicy@talentguard.com.
19.1 Assignment and Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement or transfer its rights and obligations hereunder to any company or other legal entity that is controlled by, controls or is under common control with such party, or in connection with a merger or sale of all or substantially all of such party’s business or assets. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
19.2 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
19.3 Governing Law; Dispute Settlement. This Agreement will be governed solely by the laws of the State of Texas and controlling United States Federal Law without reference to conflicts of law principles, and to the exclusive jurisdiction of the Austin, Texas courts. Any disputes concerning this Agreement shall be resolved by binding arbitration to be held in Austin, Texas. in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment on the award rendered thereby may be entered in any court having jurisdiction thereof, provided, however, that the foregoing shall not prevent either party from seeking injunctive relief in any court of competent jurisdiction.
19.4 Notices. TalentGuard and Customer may send notices pursuant to this Agreement to the addresses first written above via hand delivery, courier or first-class certified mail. Parties must advise the other in writing as soon as practicable of any changes in notice information. The initial person(s) who shall act as points of contact for the purpose of receiving any communication relating to this Agreement are as set forth in the applicable Order Form, and each party shall promptly notify the other party in the event of any change in such point of contact. Either party may send notices electronically, provided that the sending party acquires written confirmation (electronic or otherwise) from the receiving party of receipt of such notice. Otherwise such electronic notice shall not be legally sufficient.
19.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Notwithstanding the foregoing, TalentGuard may amend the Privacy Policy and Security Policy at any time by posting a new version at its website and sending Customer notice thereof, and such amended version will become effective 10 business days after such notice is sent. If Customer does not accept any terms of the Privacy Policy or Security Policy after any amendments, Customer may terminate this Agreement. The parties acknowledge and agree that such amendments of the Privacy Policy or Security Policy shall not operate as a breach of the Agreement.
19.6 Entire Agreement and Conflicts. This Agreement and all attachments and exhibits, together with all applicable Order Forms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Neither party has relied upon any such prior or contemporaneous communications. Each party has cooperated in the drafting, negotiation and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such language. In the event of any conflict between the terms of this Agreement and those of the Privacy Policy, any Attachments or Exhibits to this Agreement (other than an Order Form) and/or any related agreements, the terms of this Agreement will govern. However, if there is any conflict between this Agreement and any Order Form, the Order Form will govern.
19.7 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
19.8 Force Majeure. To the extent caused by Force Majeure, no delay, failure, or default will constitute a breach of this Agreement. A party affected by a force majeure event will notify the other party as soon as practicable, and report, at a minimum, an estimate of the impact and estimated time to resolution. Parties will use commercially reasonable efforts to minimize the impact of any Force Majeure event.
19.9 Marketing. Although the terms of this Agreement are Confidential, either party may refer to its existence, including without limitation in press releases, websites, collateral, and presentations. Customer further agrees to be a reference, provide quotes, and allow Talenguard to build a case study based on the results of the implementation and ongoing findings; provided that Customer is permitted to review, comment upon and approve such case study prior to its release.
19.10 Cumulative Remedies. Except as otherwise expressly provided in this Agreement, all remedies in this Agreement are cumulative and in addition to (not in lieu of) any other remedies available to a party at law or in equity.
19.11 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
MAINTENANCE AND SUPPORT POLICIES
1. Service Levels
Service Level Agreement
| Service Levels | Definition | Response Time | Resolution Time |
|---|---|---|---|
| Severity 1 (Critical – System) | The entire system is unavailable for all users. | < 1 business hours | Best effort to Hotfix the issue (< 4 business hours) |
| Severity 1 (Critical – Software) | System is usable, but a critical issue is present. • Security Flaw • Server Error • Data Corruption or • Essential work blocked • No workaround • Affects many or all users | < 2 business hours | Best effort to resolve within next release. |
| Severity 2 (High) | System is usable, but a major issue is present. • Essential work blocked • Workaround exists • Any # of users are affected or • Essential work blocked • No workaround • Affects one or few users | < 4 business hours | Evaluated and scheduled for next release on a case-by-case basis |
| Severity 3 (Medium) | System is usable, but a minor issue is present. • Essential work is not blocked • No workaround • Any # of users are affected | < 1 business day | Evaluated and scheduled for future release on a case-by-case basis |
| Severity 4 (Low) | System is usable, but an extremely minor issue is present. • Essential work is not blocked • Workaround exists • Any # of users are affected | < 2 business days | Evaluated and scheduled for future release on a case-by-case basis |
2. Cooperation. Customer will cooperate with TalentGuard in resolving any issues and upon request will provide information or support reasonably requested elements, including but not limited to: a full description of the issue and expected results; a reproducible test case that demonstrates the specific sequence that causes the Bug being reported; all applicable error, trace and system files; exact wording of all error messages; any special circumstances surrounding the discovery of the issue; any additional information and cooperation reasonably requested by TalentGuard.
3. Exclusions. Notwithstanding anything to the contrary, TalentGuard will have no obligations related to maintenance and support, or responsibilities with respect to Service issues caused by: (1) the use or functioning of the Service with third party products other than those specified in the Agreement; (2) use of the Service in breach of the Agreement or the Documentation; (3) any modification, customizations or enhancements of the Service by any person or entity other than TalentGuard, (4) acts of god or war beyond TalentGuard’s control (e.g., floods, fires, internet disruption, loss of electricity or other utilities), (5) the gross negligence of Customer or any third party, operator error, attempted access, maintenance or other use by unauthorized persons, or (6) the failure of or caused by any third-party software, hardware, or data feeds, or failure or corruption of any database.
