These Terms of Service govern your use of all Exelero Ag. (“Exelero”)
software and/or services (the “Services”). By mutually executing an
Order Form with Exelero that references these Terms of Service or by
using the Exelero website, You agree to these Terms of Service and the
applicable Order Form (together with the DPA, if applicable, the
“Agreement”). You represent that you are entering into this Agreement on
behalf of the entity identified on the Order Form (“you” or “Customer”)
and that you have authority to bind the Customer to this Agreement.
Exelero reserves the right to periodically modify these Terms of Service upon written notice to Customer, and such modification will automatically become effective thirty (30) days after such modification. If you do not agree with a modification to these Terms of Service, you must notify Exelero within thirty (30) days after receiving notice of such modification. If you provide such written notice, Your Agreement will continue to be governed by the version of the Terms of Service made prior to the such modification for the remainder of the then-current Term. Upon any renewal of this Agreement pursuant to Section 9 below, the then-current Terms of Service published on the Exelero website at will automatically be incorporated into this Agreement as of such date.
(a) Provision of Access: Subject to all the terms and conditions of this Agreement, Exelero will provide Customer with access to the Services described in the applicable Order Form during the Term, through the Internet, solely for Customer’s internal use. This Agreement and the access provided hereunder are non-transferable, except as expressly provided herein. Exelero retains all rights not expressly granted to the Customer pursuant to this Agreement.
(b) Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Exelero.
(c) Modification of Services. Exelero may update the Services from time to time, in its sole and absolute discretion. If Exelero changes the Services in a manner that materially reduces the aggregate functionality of the Service, Exelero will inform Customer thirty (30) days ahead of the effective date of such changes, and Customer will have the right to terminate this Agreement upon thirty (30) days’ written notice to Exelero (provided that Exelero receives such notice within thirty (30) days of such reduction in functionality). In the event that Customer terminates this Agreement pursuant to this Section 1(c), Exelero will provide Customer with a prorated refund of any pre-paid Fees with respect to the then-remaining Term as of the effective date of such termination.
(d) Future Functionality. Customer agrees that Customer’s subscription to the Service and acceptance of this Agreement are not contingent on the delivery of any future functionality or features.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Exelero shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven days a week, except for: (i) planned downtime; and (ii) unavailability caused by circumstances beyond Exelero’s control, including but not limited to acts of God, internet service provider failures or delays, and denial of service attacks.
(b) Information Security. Exelero will use commercially reasonable technical and organizational measures that are reasonably designed to: maintain an industry-standard level of security, prevent unauthorized access to and/or disclosure of Customer Confidential Information. Those safeguards will include, but will not be limited to, measures reasonably designed to prevent access, use, modification or disclosure of electronic data and information submitted by or for Customer to the Service (collectively, “Customer Data”) by Exelero personnel except (a) to provide the Services and prevent or address service or technical problems with the Services, (b) as required by applicable law in accordance with Section 6(v) below, or (c) as Customer may expressly permit in writing. To the extent Exelero processes Customer Data subject to the EU General Data Protection Regulation (“GDPR”), the terms of the Exelero GDPR Data Processing Agreement (attached document GDPR-agreement-2019) (“DPA”), which is hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
(a) General. Customer is responsible and liable for all uses of the Service resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of employees and agents of Customer that are authorized to use the software (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of this Agreement if performed by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Customer Content; Compliance with Laws. Each party represents, warrants and covenants that such party and its employees will not produce content or otherwise use the Service in a manner that (i) infringes or violates the intellectual property rights or property rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or, (iv) contains a virus or other harmful computer file, or program. Further, each party represents, warrants and covenants that such party, in performance of its obligations and/or exercise of its rights pursuant to this Agreement, will comply with all applicable laws and regulations. Each party further acknowledges that such party is responsible for all employee activity in connection with the Services and that fraudulent, abusive, or otherwise illegal activity may be grounds for termination of this Agreement.
Fees and Payment
(a) Fees. Customer will pay Exelero the applicable fees described in the Order Form (collectively, “Fees”) in accordance with the terms of this Agreement. If Customer believes that Exelero has billed Customer incorrectly, Customer must contact Exelero no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to firstname.lastname@example.org. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable.
(b) Renewal Service Term Fees. In the event that Customer exceeds any Employee Limit identified in an applicable Order Form, a prorated increase in fees will automatically be assessed and applied to the invoice for the Renewal Service Term. Exelero reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees at the end of any Service Term, upon thirty (30) days prior notice to Customer. Without limiting the foregoing, any Renewal Term in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior Term’s per-unit pricing.
(c) Invoices. Unless otherwise specified in an Order Form, Exelero will bill through an invoice and full payment for invoices issued must be received by Exelero thirty (30) days after the electronic delivery date of the invoice.
(d) Credits. Any credits due to a Customer will be applied on the next invoice against amounts then due.
(e) Taxes. Any amounts payable hereunder are exclusive of, and Customer shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Exelero, unless Customer provides to Exelero a valid tax-exempt certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Exelero on account thereof.
(a) Exelero IP. Except as expressly set forth in this Agreement, Exelero will own and retain all right, title and interest in and to (a) the Services, including all software, improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed as part of any Professional Services (as set forth in an Order Form or Statement of Work mutually executed by both parties hereto that references this Agreement) or support, and (c) all intellectual property rights related to all of the foregoing. This Agreement does not grant Customer (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Exelero trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
(b) Customer Data. Customer gives Exelero permission to view data and take actions within Customer’s Exelero account for the purpose of delivering the Services, including support, maintenance, and onboarding, as well as to make design choices relating to the technical administration of the Services, for example, how the Service backs up data to keep it safe. Customer may request Exelero to perform actions within Customer’s Exelero account, and in doing so hereby grants Exelero the limited permission to view, create, and modify Exelero data in Customer’s Exelero account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Exelero account to reproduce an issue or bug, creating or uploading job postings in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc. Customer may request Exelero to perform actions within Customer’s Exelero account, and in doing so hereby grants Exelero the limited permission to view, create, and modify Customer Data in Customer’s Exelero account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Exelero account to reproduce an issue or bug, creating or uploading job postings in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc. CUSTOMER RETAINS ALL RIGHTS, TITLE AND INTEREST IN ITS CUSTOMER DATA, AND THIS AGREEMENT DOES NOT GRANT Exelero ANY RIGHTS TO CUSTOMER DATA OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN CUSTOMER DATA EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT.
(c) Blind Data. Notwithstanding anything to the contrary, Exelero will be free (during and after the term hereof) to, without any obligation to Customer to collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on “Anonymized Data” (collectively “Blind Data”). “Anonymized Data” means Customer Data that is: (i) anonymized by removing any personal or other information so the data is in no way attributable to Customer, any of Customer’s employees, or any other individual or entity, and (ii) presented in a way which does not reveal Customer’s identity.
(d) Feedback. Notwithstanding anything to the contrary, if Customer or any of its employees or contractors provide Exelero with any ideas, suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), Exelero is free to use and disclose such Feedback without any obligation to Customer or such employees or contractors.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified in writing as confidential at the time of disclosure, is identified as confidential in writing within thirty (30) days of the disclosure, or is of a nature that a reasonable person with knowledge of the Disclosing Party’s business would understand to be confidential. Except as provided herein (including, without limitation, as required for Exelero to provide the Services), the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. The Receiving Party’s non-use and non-disclosure obligations hereunder will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party without restriction on use and/or disclosure from a third party; (iv) is independently developed by or for employees of the Receiving Party without use of or reference to any Confidential Information of Disclosing Party; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
(a) Exelero represents and warrants that (i) it has sufficient right, title and interest in the Services in order to provide the Services pursuant to the terms and conditions of this Agreement, and (ii) its execution and performance of this Agreement will not violate or conflict with any obligation it has to any third party.
(b) THE FOREGOING WARRANTY DOES NOT APPLY TO, AND Exelero STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO, THIRD PARTY SERVICES.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND Exelero HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Exelero NOR ITS LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT Exelero DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
(a) Exelero Indemnification. Exelero will indemnify, defend, and hold Customer harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties pursuant to such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Services infringe or misappropriate such third party’s patent, trademark, trade secret, copyright, or other intellectual property rights. Exelero’s obligations pursuant to this Section 8(a) will not apply, however, to the extent that such claim is caused by: (i) Customer’s use of the Services other than in accordance with the terms of this Agreement; (ii) Customer’s failure to use or implement corrections or enhancements to the Services made available free of charge to Customer by Exelero, (iii) portions or components of the Services resulting in accordance with Customer specifications, (iv) modification of the Services that have not been performed by or on behalf of Exelero, and/or (v) combination of the Services with other products, services, processes or materials not supplied by Exelero (including, without limitation, Customer Data). “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.
(b) Customer Indemnification. Customer will indemnify, defend, and hold Exelero harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties resulting from such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Customer Data and/or Customer’s provision thereof to Exelero violates such third-party’s patent, trademark, trade secret, copyright, or other intellectual property or proprietary right(s), or any claim that Customer has violated any applicable law(s), regulation(s), or the rights of any employee or candidate.
(c) Indemnification Procedure. As a condition to the indemnifying party’s obligations pursuant to this Section 7, the indemnified party must: (i) promptly notify the indemnifying party in writing of all indemnifiable claims; (ii) provide the indemnifying party with reasonable assistance to settle or defend such claims, at the indemnifying party’s own expense; and (iii) grant to the indemnifying party the right to control the defense and/or settlement of such claims, at the indemnifying party’s own expense; provided, however, that: (1) the failure to so notify, and/or provide assistance will only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (2) the indemnifying party will not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement that: (x) makes any admission of wrongdoing on behalf of the indemnified party; or (y) consents to any injunction against the indemnified party (except an injunction relating solely to the indemnified party’s continued use of any infringing Service); and (3) subject to the foregoing, the indemnified party will have the right, at its expense, to participate in any indemnifiable claim and to be represented by legal counsel of its choosing, but will have no right to settle a claim without the indemnifying party’s written consent.
(d) Sole Remedy. THIS SECTION 7 SETS FORTH CUSTOMER’S SOLE REMEDIES AND Exelero’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitation of Liability
(a) Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL EACH PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ONE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL Exelero’S AGGREGATE LIABILITY ARISING OUT OF AND/OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO Exelero UNDER THIS AGREEMENT IN THE TRAILING TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
(b) Limitation of Claims. Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever waived.
Term and Termination
(a) Term. This Agreement will remain in full force and effect for the Service Term as specified in the Order Form and will automatically renew for additional one year periods (each a “Renewal Service Term” and collectively, the “Term”), unless either party requests termination in writing at least thirty (30) days prior to the end. Afterwards the end of Service Term, each party may requests a termination at any time for the end on one calendar month. A termination request by either party will be given via certified mail or via e-mail to respective Party Billing Contact.
(b) Suspension. Notwithstanding anything to the contrary in this Agreement, Exelero may impose limitations on bandwidth usage, and/or temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if Exelero reasonably determines that (i) there is a threat to or attack on any of the Services; (ii) Customer’s or any Authorized User’s use of the Services abuses, disrupts or poses a security risk to the Services or to any other customer or vendor of Exelero; or (iii) Customer is in breach of its obligation to pay any Fees due under the Agreement (collectively, “Service Suspension(s)”). Prior to suspension of service pursuant to sub-Section (iii) above, Exelero will provide Customer with notice of non-payment and the amount due (“Non-payment Notice”). Unless the amount has been paid, Exelero reserves the right to suspend Customer access to the Services thirty (30) calendar days after such Non-payment Notice. Exelero will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(c) Termination. In addition to any other express termination right set forth in this Agreement: i. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches any material provision of this Agreement, including, without limitation, by Exelero, in the event of any breach by Customer of Section 3(a) above, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or ii. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, and such proceeding is not dismissed within 120 days of institution; (B) makes or seeks to make a general assignment for the benefit of its creditors; or (C) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business without a successor.
(d) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of and/or access to the Service(s). No expiration or termination will affect Customer’s obligation to pay all Fees that have become due before the effective date of such expiration or termination, or entitle Customer to any refund.
(e) Data. Upon any termination, Exelero will make all Customer Data available to Customer for electronic retrieval in .csv format for a limited period of thirty (30) days.
(f) Survival. Sections 4, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the expiration or termination of this Agreement.