This Master Service Agreement is entered as of the Effective Date between Rock Hire, Inc., a Delaware corporation (“Rock Hire”) and the Customer for Rock Hire’s provision of access to Rock Hire’s SaaS Platform and related Services to Customer on a subscription basis. The Parties hereby agree to the following terms and conditions:
“Agreement” means any Order Form(s), the Data Processing Agreement , this Master Subscription Agreement, the SLA, and any documents further attached to or referred to in this Agreement;
“Candidate Content” means any Content provided by a candidate to the Customer that is uploaded to the Services by the Candidate;
“Confidential Information” means any non-public or proprietary information or material relating to a Party, whether orally, in writing disclosed to the receiving Party, in electronic, tape, disk, or any other physical or visual form, by or on behalf of the disclosing Party, that is marked or designated as confidential or might reasonably be considered as confidential, including without limitation, all know-how, trade secrets, scientific, technical, statistical, strategic, financial or commercial information;
“Content” means any and all content, information, data, images, photos, video, sound, notes, and works of authorship, articles, or other materials;
“Customer” means the customer as set out in the Order Form;
“Customer Content” means any Content provided, imported or uploaded to the Services by Customer or Users or on Customer’s behalf;
“Data Processing Agreement” or “DPA” means if applicable, the data processing agreement attached to the Agreement, which is hereby incorporated by reference;
“Effective Date” means the date of signature of the Order Form by the Customer;
“Fees” means the Subscription Fees, the Professional Services Fees and any other fees set out in an Order Form signed by both Parties;
“Force Majeure” means an event, or a series of related events, that is outside the reasonable control of the Party affected including failures of the internet or any public telecommunications network, virus or other malicious software attacks, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
“GDPR” means the General Data Protection Regulation (EU) 2016/679.
“Individual” means any individual, candidate, employee or referrer, who leverages their own data to assist in the sourcing of candidates or applies or is sourced as a potential applicant to jobs or companies hosted on the Rock Hire Platform;
“Intellectual Property Rights” or “IPR” means all intellectual property rights wherever in the world, whether registered or not registered, including: (a) all patent and patent applications; (b) trademarks, business names and logos (registered or not registered); (c) trade secrets; (d) copyrights; (e) proprietary and confidential information, ideas, inventions, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents; and (f) all other similar proprietary and confidential rights;
“Order Form” means the order form and any additional orders signed by the Parties;
“Party“ or “Parties” means the Customer contracting party and the Rock Hire company as set forth in the Order Form;
“Personal Data” means any Content or information related to an identified or identifiable Individual;
“Professional Services” means the professional services as described in the package specified in the Order Form or in a statement of work (as applicable);
“Professional Services Fees” means the fees for the Professional Services as set out in the Order Form(s);
“Scheduled Downtime” means the following maintenance windows currently reserved by Rock Hire, which may be changed from time to time on notice to Customer: A maximum of eight (8) hours per semi-monthly period between the hours of (a) Midnight (12:00 A.M.) and 8:00 A.M. Eastern Time in the United States.
“Services” means the Subscription Services, the Professional Services and any further Services mentioned in the Order Form(s);
“Site Availability” means the percentage calculated by dividing (a) the Site Uptime by (b) the difference between the total amount of clock time and the Scheduled Downtime actually used by Rock Hire, in a given Month.
“Site Uptime” shall mean the total number of minutes in a month during which all material parts of the Rock Hire website are operating properly and available for access and use by Authorized Users.
“Rock Hire” means the Rock Hire, Inc.
“Rock Hire Content” means any content, data, or recommendations that are provided by Rock Hire to the Customer;
“Rock Hire Site” means the website located at www.rockhire.com and any other URLs owned or operated by Rock Hire and designated by Rock Hire for use hereunder;
“Rock Hire Platform” means the talent acquisition platform as described in the Description;
“Rock Hire Technology” means the Services and all intellectual property rights in the Services, the Rock Hire Content and any of the Rock Hire’ proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to Customer by Rock Hirein providing the Services;
“Start Date” means the start date as set forth in the Order Form;
“Statement of Work” or “SOW” means an agreement specifying the details for the performance of the Professional Services and signed by both Parties;
“Subscription Services” means the usage (i.e. access, hosting, maintenance and support) of the core Rock Hire Platform and the add-on modules subscribed at the Effective Date;
“Term” means the term as defined in section 4 hereunder;
“Travel Fees” means all reasonable travel, accommodation and out-of-pocket expenses incurred in connection with the performance of the obligations under this Agreement. The Travel Fees shall include any non-refundable travel fees payable to third parties by Rock Hire resulting from a cancellation or change requested by the Customer;
“Users” means Customer’s employees, contractors, consultants and representatives who are authorized by Customer to utilize the Services and who are provided with access to the Services by virtue of a password or the equivalent thereof. Users shall not be competitors of Rock Hire;
Unless other specified herein: (i) the word “including” means “including but not limited to”; and (ii) any reference to days will mean calendar days. For the avoidance of doubt the word “ensure” as used in this Agreement does not constitute a guarantee, but (only) a contractual obligation.
2. Provision of the Services by Rock Hire
a) Rock Hire will provide access to the Rock Hire Platform and the Services subscribed by the Customer as specified in one or more Order Forms signed by the Parties.
b) Rock Hire shall provide Buyer and the authorized Users access to the Subscription Services at all times outside of Scheduled Downtime periods. Excluding Scheduled Downtime, Rock Hire guarantees a Service Level commitment for minimum Site Availability of ninety-eight percent (98.0%) during each month.
c) In the event that use or size of Customer (i.e. total Customer’s full time equivalent employees) exceeds the amount specified in the Order Form, Customer will be responsible for upgrading Customer’s subscription promptly and pay any additional Subscription Fees accordingly.
3. Fees, Invoicing and Payment
(FOR THOMAS: this was copied from SmartRecruiters and refers to orders made using Order Form. Basically, we want to be a SaaS company, where Customers just sign up to a certain plan)
- The Customer agrees to pay Rock Hire all Fees set forth in each Order Form.
- Unless otherwise specified in the Order Form, the Subscription Fees shall be invoiced annually in advance at each anniversary date. Unless otherwise specified in the Order Form, the first invoice shall be issued on the Start Date.
- The Professional Services Fees are provided on either a fixed fee basis or a time and materials basis as set out in the Order Form.
- The Professional Services Fees on a fixed fee basis in accordance with the package subscribed in the Order Form shall be invoiced upfront on the Start Date. Once the fixed Professional Fees defined in the Order Form are consumed, Rock Hire is entitled to invoice additional Professional Fees on a time and materials basis as defined in the purchased Package.
- The Professional Services Fees on a time and materials basis shall be invoiced monthly in arrears. The Professional Services Fees on a time and materials basis are based on an estimate and Rock Hire cannot guarantee that the Professional Services will be completed for that amount. If the estimated amount of Professional Services is exceeded, Rock Hire is entitled to invoice the Customer under the same rates and terms.
- All other Fees shall be invoiced as defined in the relevant Order Form(s).
- Payment obligations are based on the Services subscribed in the relevant Order Form(s). All Fees shall be paid within thirty (30) days from the date of the invoice. If the Customer has specified a credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, the Customer authorizes Rock Hire to charge the credit card or debit the bank account provided to Rock Hire for all Fees incurred under this Agreement.
- Except as expressly set forth herein, all Fees will be non-refundable once paid to Rock Hire (including upon any termination or suspension of this Agreement). Until paid in full, all past due Fees not subject to a good faith dispute will bear an additional charge of the lesser of one percent (1%) per month or the maximum amount permitted under applicable law.
- If Rock Hire requires use of collection agencies, attorneys, or a court of law for collection on Customer’s account, the Customer will be responsible for those expenses.
- All Fees stated in or in relation to this Agreement are exclusive of any applicable value added taxes imposed by all local, state, federal or foreign authorities, which will be added to the Fees. All taxes imposed by all local, state, federal or foreign authorities shall be paid by the Customer. The Customer will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement other than taxes on Rock Hire’ income, employees or similar taxes.
4. Term and Termination
- This Agreement starts on the Effective Date and remains in effect for the initial Term (“Initial Term”) as set forth in the Order Form and as long as an Order Form is in effect under this Agreement. Except as otherwise specified in the Order Form, Subscription Services will automatically renew for additional periods equal to the expiring term, unless either Party gives the other notice of nonrenewal at least thirty (30) days before the end of the relevant Term. At that time, the Customer authorizes Rock Hire to collect the applicable Fees, allowing Rock Hire to use any valid payment source of yours that Rock Hire has on record.
- Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating party) within thirty (30) days after receiving written notice thereof. Where payment of undisputed Fees is late for more than thirty (30) days of the due date of the undisputed invoice, Rock Hire reserves the right to suspend the Services and/or to terminate this Agreement by giving Customer seven (7) days’ prior written notice (email being sufficient).
- Each Party may terminate this Agreement if the other Party becomes the subject of a voluntary petition in bankruptcy, any voluntary proceeding relating to insolvency or liquidation or any other proceeding relating to insolvency or liquidation.
- Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to the Customer under this Agreement will terminate; (b) the Customer will immediately cease all use of and access to the Services; (c) all Fees then owed by the Customer will become immediately due and payable; (d)Rock Hire may delete any of the Customer’s content held by Rock Hire within thirty (30) days after the date of termination and (e) if such termination is due to breach of the Agreement by Rock Hire, then Rock Hire shall promptly refund to the Customer all prepaid unearned Subscription Fees.
5. Access Grant and Restrictions
- Subject to the terms and conditions of the Agreement, Rock Hire grants Customer a worldwide, non-exclusive, non-transferable right to permit the Customer and the Users to do the following solely for the purposes of locating and hiring potential employees for the Customer:
- access the features and functions of the Services ordered under an Order Form and subscribed solely for Customer’s internal business purposes during the Term; and
- view, download, reproduce, and print job & Candidate Content made available to Customer through the Services.
The Customer shall undertake reasonable efforts to make all Users aware of the provisions of this section 5. Rock Hire may suspend access for any User who violates this Agreement.
- The Customer agrees that the Customer will not: (1) permit any third party to access and/or use the Services, other than the Users authorized under the Agreement or in the case of application programming interface access granted by a third party; (2) rent, lease, loan, or sell access to the Services to any third party; (3) interfere with, disrupt, alter, translate, or modify the Services or any part thereof, or create an undue burden on the Services or the networks or services connected to the Services; 4) reverse engineer, decompile, disassemble or otherwise attempt to obtain or perceive the source code from which any software component of the Services are compiled or interpreted, and the Customer acknowledges that nothing in this Agreement will be construed to grant the Customer any right to obtain or use such code; (5) access the Services in order to build or create a derivative, competitive or similar product or service or copy any ideas, features, functions or graphics of the Services; or (6) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Services.
- The Customer agrees not to attempt to access any of the Services by any means other than through the interface that is provided by Rock Hire nor to engage in any activity that interferes with or disrupts the Services or infringes on Rock Hire’ and/or its third-party vendors’ brand or intellectual property rights. The Customer will use the Services and all Candidate Content in conformance with all applicable laws.
- In addition, the Customer agrees not to use, or encourage or permit others to use, the Services to: (1) stalk and/or harass another; (2) harm minors in any way; (3) impersonate any person or entity, or falsely state or otherwise misrepresent the Customer’s affiliation with a person or entity; (4) forge headers or otherwise manipulate identifiers to disguise the origin of any Content posted on or transmitted through the Services; (5) use the Services or Content such that it will mislead a third party into believing that he or she is interacting directly with Rock Hire or the Services; (6) engage in any chain letters contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); (7) access or use the Services in any manner that could damage, disable, overburden or impair any Rock Hire server or the networks connected to any Rock Hire server; (8) harvest, collect, gather or assemble information or data regarding other users without their consent; or (9) market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by Rock Hire.
- The Customer agrees not to store any illegal content or content which violates applicable law, or material rights of third parties within the provided storage space. The Customer is obliged to scan the Customer Content and the content for viruses and other harmful components before storing them on the server and to use appropriate virus protection programs.
- The Customer shall ensure that each username and password issued to a User will be used only by that User. The Customer is responsible for making commercially reasonable efforts to maintain the confidentiality of all Users’ usernames and passwords. The Customer agrees (1) other than third parties who are authorized pursuant to the definition of “Users” as set forth in section 1 (Definitions), not to allow a third party to use Customer’s account, usernames or passwords at any time; and (2) to notify Rock Hire promptly of any actual or suspected unauthorized use of the Customer’s account, usernames or passwords. Rock Hire reserves the right to terminate any username and password, which Rock Hire reasonably determines may have been used by an unauthorized third party or for an unlawful purpose. Rock Hire shall notify the Customer of any actual or suspected unauthorized use of the Customer’s account, usernames or passwords.
6. Customer Content
- Customer grants Rock Hire a non-exclusive, worldwide, royalty-free and fully paid license to: (1) use, reformat, display, modify and create derivative works of the Customer Content solely for the purpose of and to the extent necessary to provide the Services hereunder to the Customer (including, where applicable, sharing and providing such Customer Content with candidates & employees); and (2) use Customer’s trademarks, service marks, and logos to provide the Services to Customer and the candidates as set forth hereunder. All rights in and to the Customer Content not expressly granted to Rock Hire in this Agreement are reserved by the Customer. As between the Parties, Customer retains all right, title and interest in and to the Customer Content and Rock Hire acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Rock Hire further acknowledges that Customer retains the right to use the Customer Content for any purpose in the Customer’s sole discretion.
- The Customer shall be responsible for and assumes the risk, responsibility and expense of: (1) any problems resulting from, the accuracy, quality, integrity, legality, reliability, and appropriateness of all such Customer Content; (2) acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Users to connect to, access, and use the Services; and (3) Rock Hire being compelled to be a witness in any proceeding to which Rock Hire is not a party or if Rock Hire receives a subpoena with respect to any proceeding to which Rock Hire is not a party that are in any way related to Customer’s use of the Services.
- Rock Hire and the Customer acknowledge and agree that Individuals own and control certain Personal Data, and Rock Hire’ use thereof, and may have certain rights in such Personal Data (as opposed to Customer or Rock Hire having such rights), notwithstanding anything to the contrary in this Agreement.
7. Representations and Warranties
- Each Party warrants and represents that it has legal rights and authority to enter into this Agreement and to perform the obligations herein.
- Each Party warrants and represents that it shall respect all applicable laws and regulations (including any export laws and regulations and customs regulations) related to this Agreement.
- Rock Hire represents and warrants that it has all rights to license the Services to the Customer and it has and will maintain all necessary third-party licenses necessary for the performance of the Services.
- Rock Hire represents and warrants that, during each subscription Term under this Agreement, it will: (a) provide the Services substantially in accordance with the Agreement; and (b) implement and maintain backup, security and business continuity measures, in accordance with industry practices.
- The Customer represents and warrants that it shall own all right, title and interest in and to all of the necessary Customer content, copyrights and IPR required for it to comply with its obligations under this Agreement.
- The Customer represents and warrants not to use the Services for any purpose that is unlawful and prohibited by this Agreement and by any regulations.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND ROCK HIRE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY ROCK HIRE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ROCK HIRE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.
- Each Party agrees to: (1) use the Confidential Information of the other Party only for the purposes described and as permitted herein; and (2) restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement.
- The foregoing provision will not apply to Confidential Information that (1) is publicly available or in the public domain at the time disclosed; (2) is or becomes publicly available or enters the public domain through no fault of the recipient; (3) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (4) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (5) is independently developed by the recipient; or (6) is approved for release or disclosure by the disclosing party without restriction.
- Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
9. Data Protection
- Each Party undertakes to comply with its obligations under the applicable Data Protection regulations with respect to its activities under this Agreement.
- To the extent that is requested by the Data Protection legislation, the terms of the DPA shall apply and the Parties agree to comply with the terms.
- Rock Hire shall not process (or cause to be processed) any Personal Data originating from the EEA in a country that has not been designated by the European Commission as providing an adequate level of data protection unless it has put in place such measures as are necessary to ensure such transfer is in compliance with the GDPR. Customer authorizes Rock Hire to process Personal Data in the United States and Rock Hire agrees, upon Customer’s request, to execute the standard contractual clauses for processors as approved by the European Commission (with Customer as ‘data exporter’ and Rock Hire as ‘data importer’ as defined therein), where required. To the extent that Rock Hire becomes self-certified under the Privacy Shield Framework, any standard contractual clauses entered into between the parties shall become automatically terminated.
- The Customer (data controller) is responsible for the assessment of the legitimacy of the data collection, processing, use and for the protection of the rights of the Individuals. To the extent that Rock Hire (data processor) processes Personal Data disclosed by the Customer, Rock Hire will act only on instructions from the Customer in relation to the processing of that personal data.
- Notwithstanding the foregoing, each Individual has the option to set up a personal account. With this personal account, the Individual controls and is able to coordinate different application profiles and application processes for different job offerings of the Customer and of other companies. The collection, processing and use of data for creating and using this personal account is not done on behalf of the Customer, but lies in the sole responsibility of the Individual and Rock Hire and is therefore not regulated by this Agreement.
10. Intellectual Property Rights
- Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from a Party to the other Party.
- Rock Hire Technology is the exclusive property of Rock Hire or its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Customer regarding the Services or the Rock Hire Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Rock Hire Technology. All rights not expressly granted to the Customer are reserved to Rock Hire. Ownership of all work product, developments, inventions, technology or materials provided by Rock Hire under this Agreement will be solely owned by Rock Hire. Rock Hire, in its sole discretion, may utilize the Feedback furnished by either the Customer or the Users to Rock Hire in connection with the Services. The Customer hereby grants Rock Hire a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Rock Hire products and services.
- For any inventions or others made within the frame of this Agreement which are patentable or which can be registered otherwise, only Rock Hire shall be entitled to undertake the respective registrations in its own name.
- For the avoidance of doubt, know-how such as procedures, methodologies, processes used for the performance of the Services which exist at Rock Hire before Effective Date as well as know-how which exists before but was further developed by Rock Hire during the Term of this Agreement shall be and remain the sole ownership of Rock Hire.
- To the extent legally permitted under applicable law, in no event shall either party, or its suppliers, be liable to the other party for any special, indirect, incidental or consequential damages, including damages or costs due to loss of profits, data, use or goodwill, procurement costs of substitute products or services, personal or property damage resulting from or in connection with this agreement, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if such party has been notified of the likelihood of such damages.
- Nothing in this Agreement will limit or exclude (1) any liability for death or personal injury resulting from negligence, (2) any liability from fraud or fraudulent misrepresentation, or (3) any liabilities in any way that is not permitted or may not be excluded under applicable law.
- Each Party’s aggregate liability under or in relation to this Agreement shall be limited to the Fees paid by the Customer under this Agreement for the then-current subscription year, regardless of whether such liability arises from a material breach of contract, tort breach of statutory duty or otherwise.
- The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the Fees have been set and this Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
- Any damage claims or claims in reimbursement of expenses regardless of the legal grounds, shall become statute-barred no later than one year (1) after the discovery of the circumstances giving rise to the claim or (2) from the effective date of the termination or expiration of this Agreement.
- Subject to section 12.e, Rock Hire will defend at its expense any suit brought against the Customer, and will pay any final written settlement or final decision Rock Hire makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright, patent, or other intellectual property rights.
- If any portion of the Services becomes, or in Rock Hire’ opinion is likely to become, the subject of a claim of infringement, Rock Hire may, at Rock Hire’ option: (1) procure for Customer the right to continue using the Services; (2) replace the Services with non-infringing Services which do not materially impair the functionality of the Services; (3) modify the Services so that it becomes non-infringing; or (4) terminate the Services and refund any Fees actually paid by Customer to Rock Hire for the remainder of the subscription Term then in effect, and upon such termination, the Customer will immediately cease all use of the Services.
- Notwithstanding the foregoing, Rock Hire shall have no obligation under this section or otherwise with respect to any infringement claim based upon (1) any use of the Services not in accordance with this Agreement or the Description; or (2) Customer Content; or (3) the negligence and willful misconduct of the Customer. This subsection states the Customer’s sole and exclusive remedy for intellectual property infringement claims and actions.
- Subject to section 12.e., the Customer will indemnify (including without limitation payment of any settlement amount, damages, or judgment), defend, and hold Rock Hire, including its officers, directors, employees, consultants, affiliates, subsidiaries, and agents harmless from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (1) any third party application provided or utilized by Customer in combination with the Services, (2) any misuse of the Services by Customer (3) Customer Content (4) any dispute or issue between Customer and any third party, except those claims covered by section 12.a, and provided that such dispute or issue does not arise as a result of Rock Hire’ breach of the Agreement.
- The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (1) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (2) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; (3) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit; (4) the indemnified party shall not make any admissions of liability or compromise in relation to the claim without the Indemnifying party’s prior consent (such consent not to be unreasonably withheld; and (5) the indemnified party shall use its reasonable endeavours to mitigate its and the indemnifying party losses, liability, costs and expenses in respect of the claim.
- This section 12 states the exclusive right and remedy for any type of claim described in this section.
12. Professional Services
- The Customer may ask and Rock Hire may provide Professional Services to assist with the implementation, training and integration of the Subscription Services. Ownership of all work product created by Rock Hire’ as part of the Professional Services will be considered Rock Hire Technology.
- The Professional Services are described either in the package specified in the Order Form or in a SOW signed by both Parties.
- Rock Hire will perform the Professional Services in a manner consistent with industry standards applicable to the provision thereof.
- The Customer shall collaborate and provide Rock Hire with the sufficient resources, materials and other information that is required to execute the respective Professional Services.
- Any delays caused by the Customer or change in project scope may result in additional applicable Professional Services Fees.
- Daily rates correspond to an eight (8) hours workday.
14. Assignment / Subcontracting
- Neither Party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. However, either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party provided that the assignee is not a competitor of the other Party.
- Notwithstanding the foregoing, Rock Hire may subcontract any of its obligations under this Agreement. Rock Hire shall remain responsible to the Customer for the performance of the subcontracted obligations.
- This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
Neither Party shall receive or offer any bribes, gifts, things of value in connection with this Agreement.
Each Party hereby undertakes that, at the Effective Date, itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
17. Governing Law and Jurisdiction
- This Agreement will be governed by the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- The Parties agree to submit to the exclusive jurisdiction of the courts of the State of Delaware to resolve any legal matter arising from this Agreement.
- Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by any Force Majeure event, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
- Given the public nature of the relationship between the Parties, Rock Hire may refer to the Customer on its customer’s list, press releases, marketing materials, and on its website.
Both Parties may agree to write a Hiring Success case study. The Customer will not unreasonably withhold or delay its consent.
Any press releases or public announcements shall be approved by the Customer. The Customer will not unreasonably withhold or delay its consent.
- The Customer is responsible for updating Customer’s data to provide Rock Hire with the Customer’s most current email address.
- Notices will be only validly served pursuant to this Agreement where the notice has been sent by tracked delivery and/or by email where receipt of the notice is acknowledged in writing by the other Party.
Questions or Concerns Regarding Terms of Service
If you have questions or concerns regarding Rock Hire Terms of Service, please contact us at: [email protected]
Last updated on March 16th, 2020