THESE FILTERED, INC. (“FILTERED) TERMS OF SERVICE ("AGREEMENT") ARE ENTERED INTO BY AND BETWEEN FILTERED AND THE ENTITY OR PERSON ACCESSING ANY SERVICES ("CLIENT" OR "YOU"). IF YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF YOUR COMPANY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND ALL REFERENCES TO "YOU" OR "CUSTOMER" REFERENCE YOUR COMPANY. BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
MODIFICATIONS TO THIS AGREEMENT: From time to time, Filtered may modify this Agreement. Unless otherwise specified by Filtered changes become effective for Client upon renewal of Client’s current Subscription Term (as defined below). Filtered will use reasonable efforts to notify Client of the changes through communications via Client’s account, email or other means. Client may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Client acceptance of such updated version. If Filtered specifies that changes to the Agreement will take effect prior to Client’s next renewal or order (such as for legal compliance or product change reasons) and Client objects to such changes Client may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Client has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received.
1. DEFINITIONS
“Candidate” means an employment candidate submitted to the Services by Client or an End User Client.
“Client Data” means any data of any type that is submitted to the Services by or on behalf of Client, including without limitation: (a) data submitted, uploaded or imported to the Services by Client (including from End User Clients) and (b) data provided by or about Candidates that are collected by the Services.
“Documentation” means the technical user documentation provided with the Services.
“Feedback” means comments, questions, suggestions or other feedback relating to any Filtered product or service. Feedback does not include any Client Data.
“Intellectual Property Right” include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Permitted User” means an employee of Client who is authorized to access the Service.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“IPAA”); or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in the EU General Data Protection Regulation or any successor Laws).
“Services” means Filtered’s proprietary software-as-a-service solution(s), including, but not limited to, application programming interfaces (APIs), software, mobile applications (Apps), as described in the applicable Order Form.
“Service Levels” means Filtered’s standard service level.
“Support” means standard technical support and maintenance.
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Filtered.
2. SERVICES
2.1 Provision of Services. Each Service is provided on a subscription basis for a set term selected at the time Client enrolls in the Service (each, a “Subscription Term”). Client will purchase and Filtered will provide the specific Services purchased by Client.
2.2 Access to Services. Client may access and use the Services solely for its own benefit in accordance with this Agreement, the Documentation and any scope of use restrictions designated at the time of purchase (including without limitation any quantity restrictions or limits). Use of and access to the Services is permitted only by Permitted Users. If Client is given API keys or passwords to access the Services on Filtered’s systems, Client will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. Client will be responsible for any and all actions taken using Client’s accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee of Client, then Client will promptly delete such user ID and otherwise terminate such Permitted User’s access to the Service.
2.3 General Restrictions. Client will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Filtered); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the “Powered by Filtered” designation that may appear as part of the deployment of the Services and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.4 Filtered APIs and Apps. If Filtered gives access to any APIs or Apps as part of the Services, Filtered may monitor Client’s usage of such APIs and Apps and limit the number of calls or requests Client may make if Filtered believes that Client’s usage is in breach of this Agreement or may negatively affect the security, operability or integrity of the Services (or otherwise impose liability on Filtered).
2.5 Trial Subscriptions. If Client receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then Client may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by Filtered (the “Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Client does not enter into a paid Subscription Term, this Agreement and Client’s right to access and use the Services will terminate at the end of the Trial Period. Filtered has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FILTERED WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3. CLIENT OBLIGATIONS
3.1 Client represents, covenants, and warrants that Client will use the Services only in compliance with this Agreement and the Laws. Client shall defend, indemnify and hold harmless Filtered against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action by a third party (including, without limitation, Candidates) that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Filtered has no obligation to monitor Client’s use of the Services, Filtered may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing, and may further suspend Client’s access to the Services if it believes a violation has occurred or that Client’s use of the Services may affect them in a negative manner.
3.2 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Client Equipment”). Client shall also be responsible for maintaining the security of all Client Equipment.
3.3 As part of the registration process, Client will identify an administrative username and password for Client’s Filtered account. Filtered reserves the right to refuse registration of or cancel passwords it deems inappropriate.
4. OWNERSHIP
This is a subscription agreement for access to and use of the Services. Client acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Client under this Agreement. Client agrees that Filtered or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Filtered Technology”). Except as expressly set forth in this Agreement, no rights in any Filtered Technology are granted to Client. Client, from time to time, may submit Feedback to Filtered. Filtered may freely use or exploit Feedback in connection with the Service. Filtered shall not disclose the name of Client in any use or exploitation of the Feedback.
5. CONFIDENTIALITY
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Filtered includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Client includes any non-public Client Data, including personally identifiable information relating to Candidates (“Client PII”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Notwithstanding anything to the contrary, Filtered shall have the right on an anonymous basis to collect and analyze Client Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom other than Client PII), and Filtered will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Filtered offerings, and (ii) disclose such data solely in aggregate or other form in connection with its business, so long as no Client PII is copied or disclosed. Client hereby grants to Filtered a non-exclusive, perpetual, royalty-free, worldwide license, with the right to assign and sublicense in whole or in part, to exercise or permit other to exercise the rights set forth in this Section.
6. PAYMENT OF FEES
Client will pay Filtered the then applicable fees for the Services as set forth at the time of purchase (the “Fees”). The Fees shall be payable in advance net thirty (30) days after Filtered’s invoice. If Client’s use of the Services in any given month exceeds any quantity or usage limits or otherwise requires the payment of additional Fees (per the terms of this Agreement), then Client shall be billed for such additional usage and Client agrees to pay the additional Fees in the manner provided herein on the first day of the month next following the additional usage. Filtered reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal Term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Filtered has billed Client incorrectly, Client must contact Filtered no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Filtered’s Client support department. ALL FEES ARE NON-REFUNDABLE EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Client shall be responsible for all taxes associated with the Services other than U.S. taxes based on Filtered’s net income.
7. TERM AND TERMINATION
7.1 Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of the Subscription Term.
7.2 Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including with respect to Client any of the events set forth in Section 3 (Client Obligations) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
7.3 Effect of Termination. Upon any expiration or termination of this Agreement, Client will immediately cease any and all use of and access to all Services and delete (or, at Filtered’s request, return) any and all copies of the Documentation, any Filtered passwords or access codes. Each party shall delete all Proprietary Information of the other party in its possession. Client acknowledges that thirty (30) days following termination it will have no further access to any Client Data input into any Service, and that Filtered may delete any such data as may have been stored by Filtered at any time thereafter. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.4 Survival. The following Sections will survive any expiration or termination of this Agreement: 2.3 (General Restrictions), 2.5 (Trial Subscriptions), 3 (Client Obligations), 5 (Ownership), 6 (Confidentiality), 7 (Payment of Fees), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 10 (Indemnification),11 (Limitation of Liability), and12 (Miscellaneous).
8. WARRANTY AND DISCLAIMER
8.1 Limited Warranty. Filtered shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner, which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Filtered or by third-party providers, or because of other causes beyond Filtered’s reasonable control, but Filtered shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Client’s sole remedy and Filtered’s sole obligation relating to the foregoing shall be to provide the Support and Service Levels and to correct any failure that Client reports to Filtered at no cost to Client, or if unable to correct such failure terminate this Agreement and refund to Client pro rata the unused portion of any prepaid fees.
8.2 DISCLAIMER. FILTERED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND FILTERED DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. INDEMNITY
Filtered will defend Client from and against any claim by third parties alleging infringement by the Services of any Intellectual Property Right and will indemnify and hold harmless Client from and against any damages and costs finally awarded against Client or agreed in settlement by Filtered (including reasonable attorneys’ fees) resulting from such claim, provided that Filtered will have received from Client: (i) prompt written notice of such claim (but in any event notice in sufficient time for Filtered to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Client. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Filtered, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Filtered, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Filtered to be infringing, Filtered may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Services. THIS SECTION SETS FORTH FILTERED’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, FILTERED AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE TO CUSTOMER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO FILTERED FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FILTERED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. MISCELLANEOUS
11.1 Notices. Unless otherwise specified herein, all notices and other communications between the parties (other than routine operational communications) required or permitted by this Agreement or by applicable law, will be deemed properly given, if given by (i) personal service, (ii) registered or certified mail, postage prepaid, return receipt requested, (iii) nationally or internationally recognized private courier service or (iv) facsimile, to the respective addresses of the parties set forth below or such other addresses as the respective parties may designate by like notice from time to time. Notices so given will be effective upon (a) receipt by the party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first. Notices to Client will be sent to the address or email provided at the time Client enrolls in the Services. Notices to Filtered should be sent to: Filtered, Inc., 280 Summer St., Boston MA 02210, Attn: CEO.
11.2 Relationship of the Parties. Each party is an independent contractor of the other party. Nothing herein will constitute a partnership between or joint venture by the parties, or constitute either party the agent of the other.
11.3 Assignment. Client may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of Filtered. Any assignment or other transfer in violation of this section will be void. Filtered may assign this Agreement freely. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
11.4 Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, disruption, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party.
11.5 Choice of Law and Venue. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law. Venue shall be in either the US District Court for the District of Massachusetts, Boston Division, or the Superior Court of Suffolk County, Massachusetts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
11.6 Disputes. Any dispute arising out of this Agreement (excluding those provisions related to Filtered’s obligation to indemnify Client) shall be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in Boston, Massachusetts. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. In the event the parties do not agree to submit a dispute under this Agreement to arbitration, the parties agree that any civil action to decide such dispute shall be brought in either the US District Court for the District of Massachusetts, Boston Division, or the Superior Court of Suffolk County, Massachusetts.
11.7 Modification. No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both parties.
11.8 No Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
11.9 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent.
11.10 Publicity. Filtered may identify Client as a customer on its website and in its marketing materials. Except for the foregoing, neither party will use the other party’s name or marks or discuss the parties’ relationship before obtaining the other party’s prior written consent. Client agrees to reasonably cooperate with Filtered to serve as a reference account of Filtered upon written request.
11.11 Entire Agreement. This Agreement (including all order(s), and any referenced and/or attached Exhibits) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions, and neither party has relied upon any representation, express or implied, not contained in this Agreement.