This Service Agreement is effective between Client and Talentshell as of the date of Client’s accepting this Agreement. Capitalized terms have the meanings ascribed to them in Section 1 or elsewhere in this Agreement.
BY (1) CHECKING A BOX ON TALENTSHELL WEBSITE INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE PERSON ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH PERSON MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Service Agreement.
“Talentshell” means Talentshell LLC.
“Client” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Client Data” means data and information submitted by or for Client to Talentshell, excluding Content.
“Content” means information obtained by Talentshell from publicly available sources or its third party content providers and made available to Client through the Services or pursuant to an Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Client and Talentshell or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that Client or Client’s Affiliate purchases under an Order Form or online purchasing page at Talentshell’ website, as distinguished from services provided pursuant to a free trial.
“Services” means the products and services that are ordered by Client under an Order Form or online purchasing page at Talentshell’ website, or provided to Client under a free trial.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Client to use a Service, for whom Client has purchased a subscription (or in the case of any Services provided by Talentshell without charge, for whom a Service has been provisioned), and to whom Client (or, when applicable, Talentshell at Client’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Client, and third parties with which Client transacts business.
2. TALENTSHELL’ RESPONSIBILITIES
2.1 Provision of Purchased Services. Talentshell will (a) make the Services and Content available to Client pursuant to this Agreement and the applicable Order Forms, (b) provide applicable Talentshell standard support for the Purchased Services to Client at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make certain features and functions of the Purchased Services available online 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Talentshell’ reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Talentshell employees), Internet service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Talentshell’ provision of its Services to its customers generally (i.e., without regard for Client’s particular use of the Services), and subject to Client’s use of the Services in accordance with this Agreement and the applicable Order Form.
2.2 Protection of Client Data. Talentshell will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Data (other than by Client or Users). Upon request by Client made within 30 days after the effective date of termination or expiration of this Agreement, Talentshell will make Client Data available to Client for export or download as provided by Talentshell’ then-current practices. After such 30-day period, Talentshell will have no obligation to maintain or provide any Client Data, and may thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 Free Trial. If Client registers for a free trial, Talentshell will make the applicable Service(s) available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Client for such Service(s), or (c) termination by Talentshell in its sole discretion. Additional trial terms and conditions may appear on the applicable Order Form or trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CLIENT ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CLIENT, DURING CLIENT’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY TALENTSHELL” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND TALENTSHELL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE TALENTSHELL’ LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100. WITHOUT LIMITING THE FOREGOING, TALENTSHELL AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO TALENTSHELL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
CLIENT SHALL REVIEW THE APPLICABLE SERVICES DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
3. USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or online purchasing page at Talentshell’ website, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Talentshell regarding future functionality or features.
3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms. If Client exceeds a contractual usage limit, Talentshell may work with Client to seek to reduce Client’s usage so that it conforms to that limit. If, notwithstanding Talentshell’ efforts, Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Talentshell’ request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3 Client Responsibilities. Client will (a) be responsible for Users’ compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data, Client’s use of Client Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Talentshell promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Order Forms and applicable laws and government regulations, and (e) provide timely and adequate information and assistance to Talentshell to enable the performance of the Services. Any use of the Services in breach of the foregoing by Client or Users that in Talentshell’ judgment threatens the security, integrity or availability of Talentshell’ or third party cloud service providers’ services, may result in Talentshell’ immediate suspension of the Services, however Talentshell will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension. Talentshell shall not be liable for any deficiency in performance of the Services to the extent resulting from Client’s failure to meet the foregoing requirements.
3.4 Usage Restrictions. Client will not (a) make any Service or Content available to anyone other than Client or Users, or use any Service or Content for the benefit of anyone other than Client or its Affiliates, unless expressly stated otherwise in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Talentshell intellectual property except as permitted under this Agreement or an Order Form, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form, (j) frame or mirror any part of any Service or Content, other than framing on Client’s own intranets or otherwise for its own internal business purposes, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.5 Removal of Content. If Client receives notice that Content must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or this Agreement, Client will promptly do so. If Client does not take required action in accordance with the above, or if in Talentshell’ judgment continued violation is likely to reoccur, Talentshell may discontinue the applicable Content or Service. If requested by Talentshell, Client shall confirm such deletion and discontinuance of use in writing and Talentshell shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Talentshell is required by any third party rights holder to remove Content, or receives information that Content provided to Client may violate applicable law or third-party rights, Talentshell may discontinue Client’s access to Content through the Services.
4. FEES AND PAYMENT
4.1 Fees. Client will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment. Client will provide Talentshell with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Talentshell. If Client provides credit card information to Talentshell, Client authorizes Talentshell to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Talentshell will invoice Client in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form or invoice, fees are due on the 15th day of each calendar month. Client is responsible for providing complete and accurate billing and contact information to Talentshell and notifying Talentshell of any changes to such information.
4.3 Overdue Charges. If any invoiced amount is not received by Talentshell by the due date, then without limiting Talentshell’ rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Talentshell may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section.
4.4 Suspension of Service and Acceleration. If any charge owing by Client under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Client has authorized Talentshell to charge to Client’s credit card), Talentshell may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Talentshell will give Client at least 10 days’ prior notice that its account is overdue, in accordance with the “Notice” section below for billing notices, before suspending services to Client.
4.5 Taxes. Talentshell’ fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Talentshell has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Talentshell will invoice Client and Client will pay that amount unless Client provides Talentshell with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Talentshell is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Talentshell, its Affiliates and licensors reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.
5.2 Access to and Use of Content. Client has the right to access and use applicable Content subject to the terms of applicable Order Forms and this Agreement.
5.4 License by Client to Use Feedback. Client grants to Talentshell and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of Talentshell’ Services.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Client includes Client Data; Confidential Information of Talentshell includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Talentshell services.
6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Talentshell may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Talentshell’ obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Talentshell Warranties. Talentshell warrants that during an applicable subscription term Talentshell will not materially decrease the overall functionality of the Services. For any breach of the warranty above, Client’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Talentshell. Talentshell will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Talentshell in writing of, a Claim Against Client, provided Client (a) promptly gives Talentshell written notice of the Claim Against Client, (b) gives Talentshell sole control of the defense and settlement of the Claim Against Client (except that Talentshell may not settle any Claim Against Client unless it unconditionally releases Client of all liability), and (c) gives Talentshell all reasonable assistance, at Talentshell’ expense. If Talentshell receives information about an infringement or misappropriation claim related to a Service, Talentshell may in its discretion and at no cost to Client (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Talentshell’ warranties under “Talentshell Warranties” above, (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s subscriptions for that Service upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Client; (2) a Claim Against Client arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Talentshell, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Client arises from Services under an Order Form for which there is no charge; or (4) a Claim against Client arises from Content or Client’s breach of this Agreement or applicable Order Forms.
8.2 Indemnification by Client. Client will defend Talentshell and its Affiliates against any claim, demand, suit or proceeding made or brought against Talentshell by a third party alleging that any Client Data or Client’s use of Client Data with the Services infringes or misappropriates such third party’s intellectual property rights, or arising from Client’s use of the Services or Content in an unlawful manner or in violation of the Agreement or Order Form (each a “Claim Against Talentshell”), and will indemnify Talentshell from any damages, attorney fees and costs finally awarded against Talentshell as a result of, or for any amounts paid by Talentshell under a settlement approved by Client in writing of, a Claim Against Talentshell, provided Talentshell (a) promptly gives Client written notice of the Claim Against Talentshell, (b) gives Client sole control of the defense and settlement of the Claim Against Talentshell (except that Client may not settle any Claim Against Talentshell unless it unconditionally releases Talentshell of all liability), and (c) gives Client all reasonable assistance, at Client’s expense. The above defense and indemnification obligations do not apply if a Claim Against Talentshell arises from Talentshell’ breach of this Agreement or applicable Order Forms.
8.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date Client first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. 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 notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless Talentshell provides Client notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Talentshell’ applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal 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.
10.3 Termination. 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.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by Client in accordance with the “Termination” section above, Talentshell will refund Client any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Talentshell in accordance with the “Termination” section above, Client will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Client of its obligation to pay any fees payable to Talentshell for the period prior to the effective date of termination.
10.5 Surviving Provisions. Sections 4-11 will survive any termination or expiration of this Agreement, and the section titled “Protection of Client Data” will survive any termination or expiration of this Agreement for so long as Talentshell retains possession of Client Data.
11. GENERAL PROVISIONS
11.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Talentshell and Client regarding Client’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.3 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Talentshell will refund Client any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. All other notices to Client will be addressed to the relevant Services system administrator designated by Client.
11.8 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement is in the state or federal courts located in San Francisco, California, and both parties hereby consent to such jurisdiction and venue for this purpose.