READ THE FOLLOWING CUSTOMER MASTER SERVICE AGREEMENT BEFORE EXECUTING THE STANDARD SEARCHLIGHT ORDER FORM. THE FOLLOWING PROVISIONS TOGETHER WITH (1) ANY ORDER FORMS EXECUTED IN CONNECTION HEREWITH AND (2) ALL EXHIBITS HERETO AND DOCUMENTS INCORPORATED BY REFERENCE HEREIN WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE STANDARD SEARCHLIGHT ORDER FORM. BY CLICKING THE “I ACCEPT” BUTTON, ACCEPTING THIS AGREEMENT THROUGH THE EXECUTION AND SUBMISSION OF THE STANDARD SEARCHLIGHT ORDER FORM, AND/OR OTHERWISE USING THE SERVICES, YOU REPRESENT THAT YOU HAVE LEGAL AUTHORITY TO ENTER THIS AGREEMENT AND YOU AGREE TO FOLLOW AND BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
1. AGREEMENT; SERVICES AND SUPPORT
1.1 This Agreement governs the rights granted to you or the entity you represent (as applicable, the “Customer”) to access and use the Platform in order to receive the Services as set forth herein. In consideration of (and subject to) the payment of Fees and subject to full compliance with all the terms and conditions of this Agreement, Searchlight will provide Customer the Services selected in the Order Form executed by Customer and Searchlight (which is incorporated herein) and the applicable General Service Level Support Terms (as described on Exhibit B attached hereto and incorporated herein). Capitalized terms used in this Agreement and not otherwise defined shall have the meanings set forth in Exhibit A (Definitions) hereto.
1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s Account. Customer may use the administrative login to create standard users (each with a password) up to the maximum number permitted in the Order Form. Searchlight may refuse registration of, or cancel, passwords it deems inappropriate.
1.4 Searchlight may change the Platform features, and the production, support, delivery, layout or maintenance of the Reports from time to time, or discontinue the provision of a Report or other offered services, in its sole discretion. For any material and adverse changes to Platform features and details, Searchlight will use commercially reasonable efforts to provide at least 30 days advance notice to Customer. As used herein, Report means any information generated by the Platform based on information provided by Customer (or by candidates identified by and provided for Customer’s use via the Platform).
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 By entering into this Agreement, Customer represents, warrants and covenants that (i) Customer will use the Platform and Reports solely for legally permissible purposes and will not use the Platform or Reports in violation of any applicable federal, state or local laws, including, but not limited to the Fair Credit Reporting Act, the Fair Chance Act, and Title VII of the Civil Rights Act of 1964, to the extent applicable, and Customer accepts full responsibility for complying with all such laws and for using the Reports in compliance with all applicable laws; (ii) prior to providing any personal information of any Candidate or Reference to Searchlight, Customer will have obtained all legally required consents and authorizations from the applicable Subject(s), (iii) Customer has received independent legal advice regarding the requirements applicable to the Customer’s receipt and use of the Platform and Reports and any notifications to Subjects used in connection with such use.
2.2 Customer Responsible for Employment Decisions. Customer acknowledges that Searchlight is not responsible for ensuring the accuracy of Customer Data or Subject Data, or for advising or directing Customer with respect to any decisions or actions Customer takes in connection with any Candidate or Position. Customer represents, warrants and covenants that Customer will not rely upon any Reports or other information received or reviewed via the Platform as the sole or determinative basis for any employment-related decisions Customer makes in connection with any Candidate or Position, and Customer retains sole responsibility for ensuring that all such actions and decisions are made in compliance with applicable law. Customer represents and warrants that Customer will disregard any information pertaining to a Candidate's criminal history or background if received via the Plaform.
2.2 License. Subject to all terms of the Agreement, Searchlight hereby grants to Customer, a non-exclusive, non-sublicensable, non-transferable, non-assignable, license solely for the Term, to access the Platform in order to use the Reports and the Services, in all cases consistent with applicable laws and regulations and the terms of this Agreement, and solely for Customer’s internal business purposes. Customer will not (and will not authorize or permit Customer’s personnel or any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform (or any underlying software, documentation or data related to the Platform); modify, translate, or create derivative works based on the Platform or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; or access or use the Platform for any illegal, improper or unauthorized purpose. Searchlight retains all right, title, and interest (including, but not limited, to intellectual property rights) in and to the Platform and anything developed and delivered under this Agreement. Nothing in this Agreement shall be construed as granting Customer any right, title or interest in or to the Platform other than the rights expressly granted herein.
2.2 No legal advice. Customer acknowledges that Searchlight cannot and does not provide, and has not provided, legal advice of any kind to Customer in connection with this Agreement, and that Searchlight is not responsible for Customer’s compliance with applicable laws and regulations relating to Customer’s requests for, or use of, Reports under this Agreement. Customer acknowledges it is Customer’s sole responsibility to consult legal counsel and to otherwise ensure its own legal compliance regarding all aspects of Customer’s use of Reports, including but not limited to (1) any employment or other decisions Customer makes related to a Subject, and (2) the compliance with applicable laws and regulations of all communications and/or notices provided by Customer to any Subject.
2.3 Customer represents, covenants, and warrants that Customer will access and use the Platform only in compliance with Searchlight’s standard access and security policies then in effect and the terms of this Agreement (including the scope and duration identified in this Agreement). Customer shall be responsible for obtaining and maintaining all Equipment. Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this Agreement, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
2.5 Upon approval by Customer, Searchlight may (i) produce and publish a case study on its website regarding the Customer’s use of the Services, and (ii) create self-promotional materials such as press releases, advertisements, brochures, etc. Upon approval by Customer, Customer shall provide a mutually agreeable quote with respect to Searchlight and the Services, to be used for Searchlight’s marketing and publicity purposes.
3.1 As between Searchlight and Customer, Searchlight (or its licensors, as applicable) retains all intellectual property rights in and to the Platform, any and all technology, materials and information related to the Platform, in each case whether currently existing or later developed.
3.2 As between Customer and Searchlight, Customer retains all rights in the Customer Data. Customer consents to, and grants to Searchlight a non-exclusive, worldwide license for Searchlight’s internal access, collection, transmission, storage, copying, processing, analysis and use of Customer Data and the Reports (i) to facilitate Customer’s use of the Platform and Searchlight’s provision of the Platform to Customer; (ii) to administer the Platform and to monitor compliance with this Agreement; and (iii) solely in anonymized and aggregated format and without the use of any personally identifiable information, for research and development purposes related to the Platform and Searchlight’s related services. As used herein, “Customer Data” means information Customer provides to Searchlight via the Platform to facilitate Searchlight’s preparation of one or more Reports for Customer. Customer represents and warrants that Customer (or Customer’s licensors, as applicable) has all rights, and has obtained all consents and permissions, necessary to provide all Customer Data that Customer has provided, or will provide, to Searchlight pursuant to this Agreement. Should such a consent or permission be revoked by a Subject and communicated to Customer, Customer is responsible for communicating the fact of such revocation to Searchlight.
3.3 As between Customer and Searchlight, Customer shall receive all rights in the Reports upon Customer’s downloading or printing of such Reports from the Platform, provided, however, that Searchlight shall have and retain all rights to use the Reports as set forth in Section 3.2 above. For avoidance of doubt, (a) Searchlight’s rights to use the Reports shall remain in effect following the Term, and any request by Customer to Searchlight to return or destroy Customer Data or other information in Searchlight’s possession shall not require Searchlight to return or destroy the Reports created by Searchlight for Customer.
4.1 Each party understands and acknowledges that the other party has disclosed or may disclose Proprietary Information to the other in connection with this Agreement. Proprietary Information means all confidential information disclosed by a the Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure and shall include, without limitation, (i) the Platform and underlying software, algorithms and information embodied therein and (ii) Customer Data. Customer’s Proprietary Information shall not include Usage Data or Subject Data.
4.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Platform and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed.
5. SUBSCRIPTION; PAYMENT OF FEES
5.1 By subscribing for access to the Platform, Customer agrees to pay Searchlight the Fees for the Services as listed on the applicable Order Form. The fees for any renewal term shall be at Searchlight’s then standard rates currently in effect, or if applicable, as otherwise stated in the Order Form. All Fees paid under this Agreement are nonrefundable.
5.2 Searchlight may choose to bill through an invoice, in which case full payment for invoices issued in any given month must be received by Searchlight thirty (30) days after the mailing date of the invoice (or as otherwise set forth in the Order Form), or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Searchlight’s net income. For clarity, in the event of any conflict between the terms of this section 5 and the Order Form, the Order Form shall control.
6.2 Usage Data. Searchlight is expressly authorized to collect Usage Data, provided that the Usage Data is anonymized and no personally identifying information of the Customer or Subjects is revealed. Searchlight owns all right, title and interest in and to all Usage Data. Searchlight will not disclose Usage Data based on Customer Data to any third party in a manner that identifies Customer without Customer’s consent other than (i) to Searchlight’s third party service providers who use it for the sole benefit of Searchlight or as required to provide the Services; or (ii) as may be required by law or legal process.
6.3 Subject Data. Subject to the license provided to Customer pursuant to this Agreement, Customer acknowledges that Customer holds no ownership interest in the Subject Data, and that the Subject Data is owned by the applicable Subject or, to the extent agreed between the applicable Subject and Searchlight, by Searchlight.
7.1 Subject to earlier termination as provided below, the initial Service term is as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least fourteen (14) days prior to the end of the then current Term.
7.2 In addition to any other remedies it may have, Service Provider may also terminate the Order Form upon ten (10) calendar days written notice if Customer materially breaches any of the terms or conditions of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer shall pay in full all remaining Fees payable through the remainder of the Initial Service Term. If the Order Form is terminated as a result of a material breach by Customer after the Initial Service Term, Customer will pay in full for the Services up to and including the last day on which the Services are provided.
7.3 Termination (which includes expiration or non-renewal) of the Order Form shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form.
7.4 Upon the termination of the Agreement or Services, Customer’s right to access or use the Services shall terminate.
7.5 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 8 (“Indemnification”), 9 (“Warranty and Disclaimer”), 10 (“Limitation of Liability”), and 11 (“Miscellaneous”) shall survive termination of the Agreement.
8.1 Searchlight agrees, at its own expense, to indemnify, defend Customer and hold Customer and its officers, directors, employees and agents from and harmless against any suit, claim, or proceeding (collectively, “Claims”) brought against Customer by a third party alleging that the use of the Platform in accordance with the Order Form and this Agreement infringes any U.S. copyright, trademark, patent or other third party intellectual property rights, provided that Customer (i) promptly notifies Searchlight in writing of any such suit, claim or proceeding, (ii) allows Searchlight, at Searchlight’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Searchlight all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Searchlight’s written consent. The foregoing obligations do not apply with respect to the Platform or portions or components thereof (x) not supplied by Searchlight, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Searchlight’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
8.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Searchlight and its officers, directors, employees and agents from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any Claim brought against Searchlight by a third party that arises from an (i) Customer’s alleged violation of Sections 2, 3.2, or 6, (ii) the alleged deficiency of any actions required by Customer under, or any violations by Customer of, applicable law in connection with Customer’s use of the Platform or Reports and/or Customer’s interactions with any Subject related to this Agreement; or (iii) any claim that the Customer Data (in the form provided to Searchlight by Customer) or its provision to Searchlight violates any third party rights, including but not limited to rights of privacy or intellectual property rights.
8.3 For any Claim subject to indemnification under Section 8.1 or 8.2, the indemnified party shall (i) promptly notify the indemnifying party in writing of any such suit, claim or proceeding, (ii) allow the indemnifying party, at the indemnifying party’s own expense, to direct the defense of such suit, claim or proceeding, (iii) give the indemnifying party all information and assistance necessary to defend such suit, claim or proceeding, and (iv) not enter into any settlement of any such suit, claim or proceeding without the indemnifying party written consent.
9. WARRANTY AND DISCLAIMER
DISCLAIMER. SEARCHLIGHT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND SEARCHLIGHT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT SEARCHLIGHT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SEARCHLIGHT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
CUSTOMER ACKNOWLEDGES THAT SEARCHLIGHT RECEIVES THE CUSTOMER DATA AND SUBJECT DATA FROM CUSTOMER, CANDIDATES, AND REFERENCES, AS APPLICABLE, AND BASES THE CONTENT OF ITS REPORTS ON SUCH INFORMATION AS RECEIVED FROM SUCH PARTIES. SEARCHLIGHT THEREFORE CANNOT AND DOES NOT GUARANTEE THE ACCURACY OF ANY REPORT OR OTHER INFORMATION PROVIDED BY VIA THE PLATFORM AND MAKES NO WARRANTY REGARDING THE ACCURACY OF THE REPORTS OR THE UNDERLYING INFORMATION. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SEARCHLIGHT FOR THE APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY PLUS, IN THE CASE OF CUSTOMER’S LIABILITY, ALL AMOUNTS OWED BY CUSTOMER TO SEARCHLIGHT. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE (S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SEARCHLIGHT, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SEARCHLIGHT, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED HEREIN. If applicable law limits the application of the provisions of this Section 10, a party’s liability will be limited to the maximum extent permissible.
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Searchlight’s prior written consent but may be assigned by Searchlight without restriction. Both parties agree that the Order Form and this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Searchlight in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed in one or more counterparts. The parties agree that any material breach of Section 2 or 4 of this Agreement will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 4 in addition to any other relief to which the owner of such Proprietary Information may be entitled. The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to the Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A Definitions
Capitalized terms used in this Agreement shall have the meanings set forth below:
Exhibit B General Service Level Support Terms