TERMS OF Service
HELLOHIRE TERMS OF SERVICE
Last Updated: Jan 23, 2023
The following Hellohire Terms of Service (“Terms of Service”) govern Customer’s access to and use of the Services. These Terms of Service, together with any Order Forms referencing these Terms of Service (together, the “Agreement”), form a binding legal agreement between Hellohire Inc. (“Hellohire”, “we” or “us”) and the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services (such customer, the “Customer”, “you” or “your”). This Agreement is entered into effective on the earlier of: (i) the date Customer first uses any part of the Services; and (ii) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
BY USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14.12. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO HELLOHIRE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON OR ENTITY, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO HELLOHIRE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON OR SUCH ENTITY TO THIS AGREEMENT.
THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
HELLOHIRE’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH HELLOHIRE’S PRIOR WRITTEN CONSENT.
1.1 “Action” has the meaning set out in Section 11.1.
1.2 “Administrator Users” has the meaning set out in Section 5.1.
1.3 “Administrator User Account ” has the meaning set out in Section 5.1.
1.4 “Administrator Users” has the meaning set out in Section 5.1.
1.5 “Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
1.6 “Aggregated Data” has the meaning set out in Section 3.1.
1.7 “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances, guidelines or judgments, in each case of any Governmental or Regulatory Authority.
1.8 “Billing Cycle” has the meaning in Section 8.1
1.9 “Confidential Information” has the meaning set out in Section 9.1.
1.10 “Customer” has the meaning in the preamble.
1.11 “Customer Data” means other than Aggregated Data, any data, information, content, records, and files, including Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into the Services, including the Customer Content and Reports.
1.12 “Customer Indemnitee” has the meaning set out in Section 11.1.
1.13 “Customer User Accounts ” has the meaning set out in Section 5.1.
1.14 “Deliverable” means a deliverable provided to Customer as a result of Professional Services.
1.15 “Dependencies” has the meaning set out in Section 2.6.
1.16 “Documentation” means Hellohire’s manuals, instructions or other documents or materials that Hellohire makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Hellohire Solution.
1.17 “Discloser” has the meaning set out in Section 9.1.
1.18 “Employee Users” has the meaning set out in Section 5.1.
1.19 “Employee User Account ” has the meaning set out in Section 5.1.
1.20 “Excluded Downtime” has the meaning set out in Section 6.
1.21 “Feedback” has the meaning set out in Section 3.3.
1.22 “Fees” has the meaning set out in Section 8.1.
1.23 “Free Trial Term” has the meaning set out in Section 2.1.2.
1.24 “Force Majeure” has the meaning set out in Section 14.6.
1.25 “Force Majeure Period” has the meaning set out in Section 14.6.
1.26 “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Hellohire, Customer, the Services, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
1.27 “Hellohire Indemnitee” has the meaning set out in Section 11.3.
1.28 “Hellohire Metadata” means the metadata that is generated by the Hellohire Software residing on the Customer Endpoints resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Hellohire Software.
1.29 “Hellohire Property” has the meaning set out in Section 3.2.
1.30 “Hellohire Solution” means Hellohire’s proprietary software-as-a-service solution as may be more particularly described in the applicable Order Form or the online purchasing portal.
1.31 “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.
1.32 “Job Seeker” means any individual that has a Job Seeker Account.
1.33 “Job Seeker Account ” means any Customer User Account for a Job Seeker.
1.34 “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.35 “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
1.36 “Order Form” means any order form that references this Agreement and that is agreed to by the parties.
1.37 “Personal Information” means information of an identifiable individual transferred by Customer or its Permitted Users to Hellohire hereunder.
1.38 “Permitted Purpose” means the permitted purpose as set out in an applicable Order Form.
1.39 “Permitted User(s)” means Customer’s employees, consultants, contractors, agents and anyone including Persons whom Customer provides access and use of the Hellohire Solution under the rights granted to Customer pursuant to this Agreement. The term “Permitted User” includes Administrative User, Employee Users, and Job Seekers.
1.40 “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
1.42 “Professional Services” means the consulting, training and other professional services described in an applicable Order Form. The term “Professional Services” does not include Hellohire Solution.
1.43 “Recipient” has the meaning set out in Section 9.1.
1.44 “Reports” means any reports provided to the Customer as part of its access and use of the Hellohire Solution.
1.45 “Services” means the Professional Services and Hellohire Solution collectively, and any part thereof and includes any services provided to Customer for any free trial (if applicable), and made available online by Hellohire, including associated Hellohire’s offline components, as described in the Documentation. “Services” excludes Third-Party Products.
1.46 “Scheduled Maintenance” means maintenance performed by Hellohire on the Hellohire Solution.
1.47 “Subscription” means the limited right to use and access the Hellohire Solution, during a Subscription Term as set out in an applicable Order Form.
1.48 “Subscription Term” means the term of the Subscription to the Hellohire Solution as identified in an Order Form or in the online purchasing portal, including any renewals thereto.
1.49 “Support Services” has the meaning set out in Section 6.
1.50 “Term” has the meaning set out in Section 13.1.
1.52 “Third-Party Products” has the meaning set out in Section 7.
2. Access and Use.
2.1 Provision of Access.
2.1.1 Paid Subscriptions. Subject to and conditioned on Customer and its Permitted Users’ compliance with the terms and conditions of this Agreement, Hellohire hereby grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable (except as permitted herein to Permitted Users) right to access and use the Hellohire Solution during the Subscription Term, solely for use by Permitted Users in accordance with the terms and conditions herein. Such use is limited to the applicable Permitted Purpose.
2.1.2 Free Trial. Hellohire may, in its sole discretion, permit the Customer to access and use the Hellohire Solution for a free trial period (“Free Trial Term”). The Free Trial Term will end on the earlier of: (i) the start date of the Subscription Term; or (ii) the immediate termination by Hellohire in its sole discretion as provided herein. Customer agrees that Hellohire, in its sole discretion and for any or no reason, may terminate Customer’s access to the free trial or any part thereof. Customer agrees that any termination of Customer’s access to the free trial may be without prior notice, and Customer agrees that Hellohire will not be liable to Customer or any third party for such termination. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE SERVICES (INCLUDING THE HELLOHIRE SOLUTION) DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION BEFORE THE END OF THE FREE TRIAL TERM. CUSTOMER CANNOT TRANSFER CUSTOMER DATA ENTERED DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SUBSCRIPTION THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “WARRANTIES; DISCLAIMERS” SECTION AND “HELLOHIRE INDEMNITIES” SECTION BELOW, DURING THE FREE TRIAL TERM, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND HELLOHIRE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL TERM UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE HELLOHIRE’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, HELLOHIRE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL TERM WILL MEET CUSTOMER’S REQUIREMENTS; (II) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL TERM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) USAGE DATA PROVIDED DURING THE FREE TRIAL TERM WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO HELLOHIRE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL TERM, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
2.2 Restrictions on Use. Customer will not itself, and will not permit others (including but not limited to any Permitted Users) to: (i) sub-license, sell, rent, lend, lease or distribute the Hellohire Solution or any Intellectual Property Rights therein or otherwise make the Hellohire Solution available to the third parties other than Permitted Users; (ii) use the Hellohire Solution to permit timesharing, service bureau use or commercially exploit the Hellohire Solution; (iii) use or access the Services: (1) in violation of any Applicable Law or Intellectual Property Right; (2) in a manner that threatens the security or functionality of the Hellohire Solution, including by taking any action that imposes, or that may impose, in Hellohire’s discretion, an unreasonable or disproportionately large load on Hellohire’s systems or infrastructure; or (3) for any purpose or in any manner not expressly permitted in this Agreement; (iv) use the Services to create, collect, transmit, store, use or process any Customer Data: (1) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (2) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (3) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (v) Modify the Hellohire Solution; (vi) reverse engineer, de-compile or disassemble the Hellohire Solution; (vii) remove or obscure any proprietary notices or labels on the Hellohire Solution, including brand, copyright, trademark and patent or patent pending notices; (viii) access or use the Services for the purpose of building a similar or competitive product or service; (ix) perform any vulnerability, penetration or similar testing of the Hellohire Solution; or (x) use or access the Services in any manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement.
2.3 Suspension; Modifications. Hellohire may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity under this Agreement: (i) suspend Customer’s access to or use of the Hellohire Solution or any component thereof: (1) for Scheduled Maintenance; (2) if there is a Force Majeure event; (3) if Customer or any Permitted User violates any provision of this Agreement, including without limitation any of the restrictions set out in Section 2.2 above; (4) to address any emergency security concerns; (5) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Law; or (6) for non payment of undisputed Fees when due; and (ii) Modify the Hellohire Solution.
2.4 Subcontracting. Hellohire may engage third parties to assist it in providing the Services or any part thereof. The delegating or subcontracting of all or any part of Hellohire’s obligations under this Agreement to any subcontractor will not relieve Hellohire from any obligation or liability under this Agreement.
2.5 Professional Services. Hellohire will use commercial reasonable efforts to perform Professional Services set out in an applicable Order Form The parties may also set out Deliverables to be delivered by Hellohire in an applicable Order Form. Customer acknowledges and agrees that Hellohire’s performance of the Professional Services is dependent on Customer’s performance of certain activities and tasks as may be reasonably requested by Hellohire to facilitate Hellohire’s timely performance of the Professional Services, including, without limitation, providing Hellohire with access to sufficiently qualified employees of Customer, Customer facilities, or working space or office support at such Customer facilities (“Dependencies”). Hellohire will not be liable for any delay or non-performance of any Professional Services caused by Customer’s non-performance or inadequate performance of any Dependencies. All Professional Services will be performed remotely unless otherwise indicated in the Order Form as being an on-site provided service. Within 5 days of Hellohire’s delivery of a Deliverable, Customer will provide Hellohire with written notice of its acceptance or rejection of such Deliverable. If Customer rejects any such Deliverable, Hellohire will correct the deficiencies set out in Customer’s notice of rejection for such Deliverable. Once Hellohire has notified Customer that it has completed such corrections, Customer will have 5 days from the date of such notice to re-test the Deliverable. If Customer uses any Deliverable delivered by Hellohire or fails to give notice of acceptance or rejection within the time period set out herein, such use of any Deliverable or failure to give notice of acceptance or rejection will constitute Customer’s deemed acceptance of such Deliverable.
3. Ownership; Reservation of Rights
3.1 Customer Data. Except as specifically set forth in this Agreement, Customer retains all right, title and interest including all Intellectual Property Rights in or to the Customer Data. Customer grants to Hellohire: (i) a nonexclusive, worldwide, royalty-free, transferable, sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to provide the Services; and (ii) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to: (1) improve and enhance the Services and its other offerings; (2) generate Hellohire Metadata; and generate (3) generate aggregated statistical data that: (A) is anonymized; (B) cannot be re-identified by Hellohire; and (C) does not contain any Personal Information or identify any customers of Customer or Customer (such data, information and materials, the “Aggregated Data”). Customer agrees that Hellohire may: (i) make Aggregated Data publicly available in compliance with Applicable Law; and (ii) use Aggregated Data to the extent and in the manner permitted under Applicable Law. For greater clarity, Aggregated Data will not contain any Customer’s Confidential Information.
3.2 Hellohire Property. Hellohire or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) Hellohire Solution; (iii) Documentation; (iv) the Hellohire Metadata; (v) other than Customer Data, anything used, developed or delivered by or on behalf of Hellohire under this Agreement including without limitation any Aggregated Data and Deliverables (excluding any Reports); and (vi) any Modifications to the foregoing (“Hellohire Property”).
3.3 Customer grants to Hellohire and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Hellohire’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Hellohire is not obligated to use any Feedback.
3.4 All rights not expressly granted by Hellohire to Customer under this Agreement are reserved.
5. Customer User Account; Customer Responsibilities
5.1 In order for Customer to access and use the Hellohire Solution, Hellohire will issue one or more administrator accounts (“Administrator User Account”) to Customer for use by Administrator User (as defined below), that provides Customer with the capability to create user accounts for Employee Users (each a “Employee User Account”), other Permitted Users and together with the Administrator User Accounts the (“Customer User Accounts”). Customer will ensure that each Permitted User only uses the Hellohire Solution through its assigned Customer User Account. Customer will not allow any Permitted User to share its Customer User Account with any other person. “Employee Users” means any Person that is permitted by Customer to access and use the Hellohire Solution through an Employee User Account. “Administrator Users” means those employees of Customer that are authorized by Customer to access and use the Hellohire Solution on Customer’s behalf through an Administrator User Account. Customer will promptly notify Hellohire of any actual or suspected unauthorized use of the Hellohire Solution. Hellohire reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
5.2 Customer will solely be responsible for: (i) the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any third party products or systems with which Customer uses Services; (ii) providing, at its own expense, all network access to the Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services; (iii) properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure; and (iv) use the Services in accordance with this Agreement and Applicable Laws.
For each Subscription to the Hellohire SaaS Services, Customer will generally have access to Hellohire’s technical support via email at firstname.lastname@example.org (“Support Services”). Support Services will be provided from 9:00 am eastern time to 5:00 pm eastern time each Monday to Friday (excluding statutory and civic holidays observed in Toronto, Ontario, Canada). Hellohire may amend the Support Services from time to time in its sole discretion. Customer shall not be entitled to any Support Services during any Free Trial Term. The following items are excluded from the Support Services: (i) Scheduled Maintenance (as defined below); (ii) any downtime resulting from outages of third party connections or utilities or other reasons beyond Hellohire’s control; (iii) any downtime due to suspension of Hellohire Solution due to Customer’s non-payment of Fees, if such suspension is permitted by this Agreement; (iv) any downtime due to a Force Majeure; (v) Customer’s breach of this Agreement; (vi) any downtime caused by Internet service provider failure or delay, Third-Party Products, or denial of service attack; or (vii) any downtime for emergency maintenance (collectively “Excluded Downtime”).
7. Third-Party Products
The Hellohire Solution may contain or require the use of third party technology that is licensed under separate license terms, and not under this Agreement or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer is responsible for separately obtaining or licensing such technology. Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Hellohire does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Hellohire as “certified” or otherwise. Hellohire cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Hellohire. Hellohire is not responsible for any disclosure, Modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
8. Fees and Payment
8.1 Fees. Customer will pay to Hellohire the fees described in any Order Form for any applicable Subscription (the “Fees”). Unless otherwise provided in this Agreement, Fees are non-refundable. Customer will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing Cycles are set either on a monthly basis, annual basis or such or period as confirmed by Hellohire to Customer, depending on the type of Subscription plan Customer selects when purchasing a Subscription in the online purchasing portal or as set out in the Order Form. A valid payment method, including credit card, is required to process the payment for a Subscription. Customer shall provide Hellohire with accurate and complete billing information including full name, address, state, zip code, province, postal code, telephone number, and a valid payment method information. By submitting such payment information, Customer automatically authorizes Hellohire to charge all Fees incurred through Customer’s account to any such payment instruments. Should automatic billing fail to occur for any reason, Hellohire will issue an electronic invoice indicating that Customer must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice. Full payment for invoices issued must be received by deadline date for payment as set out in such invoice.
8.2 Usage Limits. If Customer’s use of the Services exceeds the service capacity or usage limits set forth on the Order Form, or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein. If Customer requests that Hellohire provide it with services in addition to the Services, Customer will be billed for such additional services based on Hellohire’s standard rates.
8.3 Changes to the Fees. Hellohire in its sole discretion and at any time, may modify Fees for the Subscriptions. Any Fees change will become effective at the end of the then-current Billing Cycle. Hellohire will provide Customer with a reasonable prior notice of any change in Fees for Subscription(s) to give Customer an opportunity to terminate its Subscription before such change becomes effective. Customer’s continued use of Services after Fees change comes into effect constitutes Customer’s agreement to pay the modified Fees amount.
8.4 Disputed Invoices or Charges. If Customer believes that Hellohire has invoiced Customer incorrectly, Customer must contact Hellohire no later than 45 days after having received the invoice in which the error or problem appeared to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts, and the Parties will attempt in good faith to resolve the dispute.
8.5 Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. If Customer fails to make any payment when due, without limiting Hellohire’s other rights and remedies, Hellohire may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) if such failure continues for five (5) days or more, Hellohire may: (1) suspend, in accordance with Section 2.3, Customer’s and all other Permitted Users’ access to any portion or all of the Services until such amounts are paid in full; or (2) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator), without incurring any obligation or liability to Customer or any other Person by reason of such suspension or termination.
8.6 Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Hellohire.
8.7 Payment Processor. Payment and collection of Fees is enabled through and executed by a third party payment processors. Transaction fees associated with the individual payment and collection of Fees or amounts under this Agreement are as outlined in the pricing plan provided to Customer. Customer may be required to agree to terms and conditions as required by such third party payment processor from time to time. Prior to using the Services and any components thereof, Customer must have all applicable such third party payment processor’s terms and conditions in effect. By using the Services or any component thereof, Customer acknowledges it must be in full compliance with the terms and conditions of such third party payment processor and be in good standing with such third party payment processor.
8.8 Suspension. Any permitted suspension of the Services by Hellohire pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments of Fees, unless such Fees are subject to a dispute per Section 8.4 of this Agreement.
9. Confidential Information
9.1 Definitions. For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, including, where the Discloser is Customer, Customer’s Confidential Information includes the Customer Data, and, where the Discloser is Hellohire, Hellohire’s Confidential Information includes the Hellohire Property; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
9.2 Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement:
Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
9.2.1 disclose Confidential Information of the Discloser:
i. in the case the Customer to any Person, except to its Permitted Users that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
ii. in the case of Hellohire to Hellohire’s employees, independent contractors, advisors, consultants, agents and its Affiliates, that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement and to its subcontractors and contractors to perform the Services or to its subcontractors for the purpose of providing the Services;
9.2.2 use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
9.2.3 alter or remove from any Confidential Information of the Discloser any proprietary legend.
9.3 Exceptions to Confidentiality. Notwithstanding Section 9.2, Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies (unless prohibited by Applicable Law) the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (iii) in the case of Hellohire, to potential assignees, acquirers or successors of Hellohire if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Hellohire.
9.4 Injunction and other equitable relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Section 2.2 or Section 3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
9.5 Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each party will promptly return to the other party or destroy all Confidential Information (excluding any Customer Data which is addressed in Section 13.5.1) of the other party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Hellohire may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
10. Warranty; Disclaimer
10.1 Mutual Representations, Covenants and Warranties. Each party represents, warrants, and covenants that:
10.1.1 it has full power and all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder; and
10.1.2 it will carry out its obligations under this Agreement in compliance with Applicable Laws, rules and regulations, applicable to it and the Services.
10.2 Customer Representations, Covenants and Warranties. Customer represents and warrants to, and covenants with, Hellohire that: (i) the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case, as required by Applicable Laws including applicable privacy laws, to enable Hellohire to provide the Hellohire Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Hellohire and to or from all applicable third parties; and (ii) Customer and its Permitted Users will comply with all Applicable Laws.
10.3 Hellohire Warranties. Hellohire warrants that: (i) it will perform the Professional Services in a professional and workmanlike manner; and (ii) The media on which any part of the applicable Hellohire Solution will be delivered by Hellohire free from all viruses and malicious code (provided that this warranty does not extend to any malicious code or virus introduced into the Hellohire Solution by the Customer). For any breach of a warranty above, Customer’s sole and exclusive remedy is to terminate the Agreement pursuant to Section 13.4.1. THE FOREGOING WARRANTY DOES NOT APPLY, AND HELLOHIRE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
10.4 GENERAL DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT HELLOHIRE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO THE SERVICE LEVELS AGREED TO IN THE AGREEMENT, THE SERVICES (AND ANY PART THEREOF) ARE PROVIDED “AS IS”. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, HELLOHIRE MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE PRODUCTS OR FURNISHED TO CUSTOMER BY HELLOHIRE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HELLOHIRE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, AND OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, HELLOHIRE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
11.1 Hellohire Indemnities. Hellohire will defend, indemnify and hold harmless Customer, and its officers, directors, employees and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitees arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of an Hellohire Indemnitee) that arise from or relate to any allegation that the Hellohire Solution infringe any third-party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) incorporation of any of the Hellohire Solution into, or any combination, operation, or use of the Hellohire Solution with, any products or services not provided or authorized by Hellohire, unless such infringement would also have resulted solely from the use of the Hellohire Solution without their incorporation in, or combination, operation or use, with such other products or services; (ii) Modification of the Hellohire Solution other than by Hellohire or with Hellohire’s express written approval; or (iii) unauthorized use of the Hellohire Solution. This Section 11.1 will not apply to the extent that any such third party Action arises from Customer Data or Third-Party Products. This Section 11.1 states the Hellohire’s sole liability to, and the Customer Indemnitees sole and exclusive remedy against, Hellohire for any third party claim described in this section.
11.2 If the Hellohire Solution is, or in Hellohire’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any portion of the Hellohire Solution are enjoined or threatened to be enjoined, Hellohire may, at its option and sole cost and expense:
11.2.1 obtain the right for the Customer to continue to use the affected Hellohire Solution materially as contemplated by this Agreement;
11.2.2 Modify or replace Hellohire Solution, in whole or in part, to seek to make the Hellohire Solution (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Hellohire Solution under this Agreement; or
11.2.3 if Hellohire determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement, require Customer to immediately cease all use of the Hellohire Solution or part or feature thereof and provide pro rata refund of any unused prepaid Fees for the terminated Hellohire Solution, if applicable.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
11.3 Customer Indemnities. Customer will defend, indemnify and hold harmless Hellohire, and its officers, directors, employees and agents (each, a “Hellohire Indemnitee”) from and against any and all Losses incurred by Hellohire Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of an Hellohire Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Sections 2.2, 10.1, 10.2, or 14.4; or (iii) unauthorized use of the Hellohire Solution (or any part thereof) by Customer or any Permitted User. Customer will fully cooperate with Hellohire in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Hellohire.
11.4 Indemnification Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (ii) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s written consent unless it unconditionally releases the indemnified party of all liability); and (iii) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. Limitation of Liabilities
The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
12.1 AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE HELLOHIRE SOLUTION IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
12.2 TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (1) SAVINGS, (2) PROFIT, (3) DATA, (4) USE, OR (5) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
12.3 EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 12.1 AND 12.2 DO NOT APPLY TO LIMIT: (I) EITHER PARTY’S OBLIGATIONS UNDER SECTIONS 11.1 and 11.3; (II) LOSSES ARISING OUT OF OR RELATING TO CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2.2; (III) EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION) (PROVIDED THAT HELLOHIRE’S LIABILITY FOR AN ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO CUSTOMER DATA, RESULTING FROM A BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION) IS LIMITED TO THE LIABILITY CAP IN SECTION 12.1 ABOVE); (IV) CUSTOMER’S PAYMENT OBLIGATIONS IN THIS AGREEMENT; OR (V) A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD.
13. Term and Termination
13.1 Term. This Agreement commences on the Effective Date and continues until all Subscriptions hereunder have expired or have been terminated (“Term”) unless terminated earlier pursuant to the terms of this Agreement.
13.2 Subscription Term. Each Subscription Term is as specified in the applicable Order Form or in the online purchasing portal. Except as otherwise specified in an Order Form, Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant Subscription Term.
13.3 Termination for Convenience. Hellohire may terminate this Agreement at any time and for any reason without liability or penalty by providing at least 30 days advance written notice to Customer. Upon Hellohire’s termination of this Agreement pursuant to this Section 13.3, Hellohire will refund to Customer, on a pro-rata basis, any unused Fees prepaid under this Agreement for any period following the effective date of termination. If Customer has never executed an Order Form with Hellohire and has paid all Fees at Scale’s then-current rates, either Hellohire or Customer may terminate this Agreement immediately upon notice, provided, however, that if the Customer terminates the Agreement pursuant to this Section 13.3, Customer will be responsible for paying all remaining Fees for the rest of the then-current Term; and (ii) Customer shall not be entitled to any refund of Fees prepaid upon termination pursuant to this Section.
13.4 Termination for Cause.
13.4.1 A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, Hellohire may terminate this Agreement immediately if: (i) Customer breaches any restrictions on use in Section 2.2; (ii) as provided in Section 8.5 or (iii) if required by Applicable Law.
13.4.2 If this Agreement is terminated by Customer due to Hellohire’s material breach pursuant to Section 13.4.1, Hellohire will provide Customer with a pro rata refund of any unused Fees prepaid by Customer applicable to the period following the effective date of termination of the Agreement.
13.4.3 If this Agreement is terminated by Hellohire due to Customer’s material breach pursuant to Section 13.4.1 Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement. Hellohire will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the term of the Agreement had it not been terminated.
13.5 Effect of Termination. Upon expiration or termination of this Agreement:
13.5.1 Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services provided that upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Hellohire will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Hellohire will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited;
13.5.2 Customer will, as instructed by Hellohire, return, delete or destroy Hellohire Property in its possession, and certify in writing to the Hellohire that the Hellohire Property has been returned or deleted or destroyed;
13.5.3 All Order Forms will also terminate;
13.5.4 All Fees due and payable and subject to Section 8.3, any amounts due to Hellohire are immediately due and are to be immediately paid by Customer to Hellohire; and
13.5.5 Other than as otherwise provided for in this Agreement, no expiration or termination will affect or relieve Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund.
13.6 Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer), Section 12 (Limitation of Liabilities), Section 13.6 (Survival), and Section 14 (General Provisions).
14. General Provisions
14.1 Notices. Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices will be sent: (i) if to Hellohire, to the following address:
202-1200 Bay Street
and (ii) if to Customer, to the current postal or email address that Hellohire has on file with respect to Customer. Hellohire may change its contact information by posting the new contact information on its website, through the Hellohire Solution or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Hellohire current at all times during the Term.
14.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Hellohire’s prior written consent. Hellohire may transfer and assign any of its rights and obligations under this Agreement without consent. Any purported assignment or delegation by a party in violation of this Section will be null and void. Subject to the foregoing, this Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.
14.3 Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, a party may commence lawsuits to seek injunctive relief with respect to a violation of its Intellectual Property Rights or breach of confidentiality obligations; in each case, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14.4 Export Restrictions. Customer shall not to directly or indirectly export, re-export or import all or any portion of the Hellohire Solution without first obtaining all required licenses, permits and permissions. Hellohire makes no representation or warranty that the Hellohire Solution may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
14.5 Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
14.6 Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). This Section does not apply to any of Customer’s obligations under Sections 8 (Fees and Payment), 9 (Confidentiality) or 11 (Indemnity). The excused party will: (a) recommence performance of the obligations that it has failed to perform as a result of the Force Majeure event without delay, including through the use of alternate sources, workaround plans or other means; and (b) provide sufficient documentation to establish to the reasonable satisfaction of the other party the impact of the Force Majeure event. The parties agree that in the event of a Force Majeure event affecting a party continues for four (4) weeks (“Force Majeure Period”), either party will be entitled to terminate this Agreement, by providing at least ten (10) days’ written notice to the other party after the completion of the Force Majeure Period. In the event of such termination, Customer’s sole remedy and Hellohire’s sole liability will be to a pro rata refund any prepaid unused Fees for the applicable Hellohire Solution.
14.7 Customer Lists. Hellohire may identify the Customer by name and logo as a Hellohire customer on Hellohire’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
14.8 Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
14.9 Waiver. A waiver of any provision of this Agreement will be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
14.10 Independent Contractors. Hellohire’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party.
14.11 Entire Agreement. This Agreement (including all Order Forms hereunder) constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral. This Agreement replaces and terminates any prior agreed agreement, terms of service or other terms and conditions agreed between the parties related to the Hellohire Solution. Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services or Hellohire Solution; (ii) do not override or form a part of this Agreement (including without limitation any Order Form); and (iii) are void.
14.12 Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE FOREGOING, HELLOHIRE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON HELLOHIRE’S WEBSITE. UNLESS OTHERWISE INDICATED BY HELLOHIRE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON SUCH WEBSITE (WHICHEVER IS EARLIER).
14.13 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement; (2) the applicable Order Form; and (3) the Documentation.
14.14 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.