ARYA SERVICE AGREEMENT
Last Updated: August 16, 2019
1 Leoforce LLC (“Supplier”)
2 The client shall be the entity/individual set out in the order form (“Client”)
SECTION A: AGREEMENT AND KEY DETAILS
The Supplier agrees to provide, and the Client agrees to buy, the Arya Service offering and related services on the terms of the Agreement.
The Agreement comprises:
Section A (Agreement and Key Details, including this cover page and the signature clauses);
Section B (General Terms);
Schedule 1; and
Schedule 2 along with the Appendices.
In case of any conflict between Section A and Section B, Section A shall prevail.
Start Date: On the date the Services start or any other date as mentioned in the order form.
End Date: the date set out in the order form
Fees and Payment terms: As set out in the order form
SECTION B: GENERAL TERMS
Definitions: In the Agreement, the following terms have the stated meaning:
Agreement shall mean Section A, Section B and any other attachments to the agreement including any agreed and accepted amendment.
Arya Service the service having the core functionality [describe in brief]. The Arya Service is described in more detail on the Website, as the Website is updated from time to time.
Confidential Information shall mean the terms of the Agreement, all technical, business, financial and other information furnished by or on behalf of a Disclosing Party to a Receiving Party, or otherwise learned by the Receiving Party in relation to the Disclosing Party’s business or technology. The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the Arya Software. The Client’s Confidential Information includes the Data that they provide through their database.
Data shall mean all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.
Force Majeure shall mean an event that is beyond the reasonable control of a party, excluding: an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or a lack of funds for any reason.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Job Boards shall mean certain transactions between the Client and third party staffing and employment services which shall be used by the Arya Service
Job Board Content shall mean candidate resumes and relevant job opportunities and openings that the Arya Service electronically navigate Job Boards for and retrieves for the Client
Permitted Users shall mean those personnel of the Client who are authorised to access and use the Services on the Client’s behalf in accordance with the terms of this Agreement
Personal Information has the meaning given in the General Data Protection Regulations 2016 and as amended from time to time.
Services the Arya Service and any related service.
Software shall mean all software embedded in as applicable to the Services, and in any applications developed, owned or controlled by Supplier
Underlying Systems the Arya Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks. Website the internet site at the domain set out in the Key Details, or such other site notified to the Client by the Supplier.
1.2 In the Agreement: i) a clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement; ii) words in the singular include the plural and vice versa; iii) a reference to: A) a party to the Agreement includes that party’s permitted assigns; B) personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier; C) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity; D) including and similar words do not imply any limit; and E) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; iv) no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and v) if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.
2. RIGHTS GRANTED
2.1 During the Term of the Agreement the Client shall have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Arya Services solely for their internal business operations and subject to the terms of the Agreement. The Client may allow Permitted Users to use the Services for this purpose and the Client shall be responsible for the Permitted Users’ compliance with the Agreement. The Client shall not acquire under the Agreement any license to use the Arya Service in excess of the scope and/or duration of the Services. Upon the termination or expiry of the Agreement or the Services thereunder, the Client’s right to access or use the Arya Services and the Services shall terminate.
2.2 The rights granted to the Client under the Agreement are also conditioned on the following:
• the rights of any Permitted User licensed to use the Services cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
• except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
• the Client shall make every reasonable effort to prevent unauthorized third parties from accessing the Services.
3. ACCESS TO THE SERVICES.
a. Client Accounts. If Client is an entity, the Client may establish one or more authorized accounts through which the Client will use and access the Services. Access to these accounts is limited by use of unique user identification(s) and password(s) (the “Passwords”).
b. The Client Information. The Client authorizes the Supplier to use the Client personal information including, without limitation, a valid email address owned or controlled by the Client (“the Client Information”) to communicate with the Permitted User. The Client agrees that any notices, agreements, disclosures or other communications that Supplier sends to the Client (using the notice details in the key Details section) electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
c. All information submitted in connection with establishing a Permitted User account must be accurate and describe the Client as either an individual or an entity. The Client consents to Supplier’s use and disclosure of the Client Information solely in connection with its provision of the Services and in accordance with the terms of this Agreement.
d. Account Activity. The Client agrees to maintain the Password(s) in strict confidence and is solely responsible for the use of the Password(s). The Client agrees not to provide the Password(s) to any unauthorized third party. Except to the extent caused by Supplier’s gross negligence or intentional misconduct, the Client agrees that it shall remain liable for all activity occurring in connection with, or under, its account(s), and all Fees associated therewith, subject to any limitation provided by this Agreement. Each party agrees to notify the other party immediately if it becomes aware of any loss, theft or unauthorized use of the Password(s). Until Supplier has actual notice of such loss, theft or unauthorized use, the Client agrees and understands all account activity will be considered authorized by the Client. The Client acknowledges any unauthorized use of the Passwords by the Client or any of its Permitted User will constitute a material breach of this Agreement. For the avoidance of doubt, Permitted User shall include those employees, representatives and agents of the Client who are monitoring the use of the Services by the Client and any sharing of Passwords to these individuals shall not constitute a breach of this Agreement.
f. Where the Supplier is dependent on the Client for the Data either through an API access key to a Job Board or the Client’s database, the Supplier shall not be liable for any delay in delivering the Arya Service caused due to the Client being late in delivering the key/Data to the Supplier. The Client shall ensure that there is no delay in providing the access key to the relevant API or the database.
4. THIRD PARTY CONTENT
4.1 In connection with any Job Board and Job Board Content, the Client acknowledges and agrees that: (i) Supplier does not have any ownership rights in and to the Job Board Content; (ii) the Client is solely responsible for ensuring that its use of each Job Board and each publication of Job Board Content through the Services complies with all applicable foreign, federal and state laws and regulations and does not violate any term, condition, rule, procedure, policy or other guideline published by such Job Board; and (iii) the Job Board Content does not infringe on, misappropriate or otherwise violate the intellectual property, privacy or other rights of any third party.
4.2 Supplier makes no representation or warranty that utilizing the Job Board is permitted under the terms and conditions of any Job Board provider. The Client further acknowledges that the Client’s use of Job Board Content is at its own risk and liability and Supplier shall have no responsibility to the Client or any third party related to any use of Job Board Content by the Client or its end users. The Client shall use the Job Board in full compliance of their agreement with the Job Boards. The Client also acknowledges that Supplier’s ability to perform the Services depends on Supplier’s ability to access Job Boards for resume and job opening retrieval. If a Job Board ceases to make the Job Board Content available Supplier may cease facilitating such Job Board Content. The Client understands and agrees that it is solely responsible for all fees charged by a Job Board. The termination of the Client’s access to, or use of, any Job Board will not terminate this Agreement and Supplier is not responsible for any effect on the Services arising from such termination.
5. OWNERSHIP AND RESTRICTIONS
5.1 The Client acknowledges that, as between Supplier and the Client (save as set out in this Agreement), Supplier owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. The Client agrees that the Client will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) possess or use the Software in any format other than machine-readable format; (v) build a product using similar ideas, features, functions or graphics as the Services; or (vi) copy any ideas, features, functions or graphics of the Services. If the Client are using the Services in any country within the European Union, the prohibitions set forth herein will not affect the Client’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. The restrictions set forth in this Clause 5 shall survive any termination of this Agreement.
5.2 The Client shall not:
• remove or modify any program markings or any notice of the Supplier’s proprietary rights; and
• make the Arya Service or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the Services the Client has acquired).
5.3 The Client acknowledges and agrees that it will use the Services only for lawful and legitimate business purposes in accordance with the terms and conditions set forth herein. The Client expressly agrees it will not post a Job Posting which contains: (i) URLs or links to web sites other than to recruitment related pages on the Client’s web site; (ii) copyrighted material, unless the Client is the owner of such copyright or has obtained the rights necessary to post such copyrighted material; (iii) content that violates or misappropriates any third party intellectual property, moral, privacy or other right; (iv) misleading, unreadable, or “hidden” keywords, repeated keywords or keywords that are irrelevant to the job opportunity being presented, as determined by the Supplier, in its sole discretion; (v) content that is discriminatory, sexually explicit, obscene, libelous, defamatory, threatening, harassing, abusive, or hateful, as determined by the Supplier, in its sole discretion; (vi) content that the Supplier reasonably believes might damage Supplier’s brand or reputation; and/or (vii) content which could cause Supplier to violate any law or regulation.
5.4 The Client agrees to report immediately to Supplier, and to use best efforts to stop immediately, a violation of any term or condition set forth in this Clause 5. In the event of any suspected violation of any term, condition or restriction set forth in this Clause, or in the event Supplier otherwise reasonably objects to any inappropriate or improper content uploaded or provisioned by the Client in connection with its use of the Services, Supplier may immediately disable the Client’s access to the Services and suspend its provision thereof.
6. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
6.1 The Supplier warrants that the Services will perform in all material respects in accordance with the terms of this Agreement. If the Services provided to the Client for any given month during the Term are not performed as warranted, the Client shall provide written notice to the Supplier no later than five business days after the last day of that particular month.
6.2 The Supplier does not guarantee that the Services will be performed error-free or uninterrupted, or that the Supplier will correct all Services errors. The Client acknowledges that the Supplier does not control the transfer of data over communications facilities, including the internet and that the Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. The supplier is not responsible for any delays, delivery failures, or other damage resulting from such problems.
6.3 To the extent not prohibited by law, these warranties are exclusive and there are no other express or implied warranties or conditions including for hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
7. FEES AND PAYMENT
7.1 The Client shall be liable to pay for all Services ordered as set forth in the relevant SOW. All Fees due under the Agreement are non-cancelable and the sums paid nonrefundable. The Client shall be liable to pay any sales, value-added or other similar taxes imposed by applicable except for taxes based on the Supplier’s income. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
7.2 Any payment due and not received by the Supplier by the due date may be subject, at the Supplier’s sole discretion, to a late fee equal to one and one half percent (1.5%) or the maximum rate permitted by law, of the amount then due, for each month overdue until paid in full. In the event Client fails to make timely payments when due, the Supplier may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Client. For amounts outstanding after sixty (60) days from its receipt of the invoice therefor, Client shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses.
8. CONFIDENTIAL INFORMATION AND NONDISCLOSURE
8.1 The Supplier and the Client shall each keep confidential all Confidential Information obtained from the other and shall not without the other’s prior written consent disclose or use any Confidential Information except as necessary for properly performing the Agreement.
8.2 This obligation to maintain confidentiality shall not apply to information which is: in the public domain otherwise than through a breach of the Agreement; or already known to the recipient and not the subject of any obligation of confidentiality; or obtained by the recipient from a third party who is free to disclose it; or replicated by development independently carried out without access to or knowledge of Confidential Information.
8.3 All Confidential Information disclosed pursuant to this Agreement shall be deemed the property of the Disclosing Party. Upon the termination or expiration of this Agreement, or at anytime, on ten (10) calendar days written notice, the Receiving Party shall, at the Disclosing Party’s sole option, either return all Confidential Information in the form of documents and other tangible property provided pursuant to this Agreement and all copies thereof, or provide the Disclosing Party with a written assurance that all such information has been destroyed.
8.4 All Confidential Information, including all intellectual property rights relating thereto, shall remain the property of the Disclosing Party. Except for the right to access and use Confidential Information as provided herein, no license or other rights to Confidential Information, or to either Party’s intellectual property, including, without any limitation whatsoever, any invention, discovery, or improvement made, conceived, or acquired, prior to or after the date of this Agreement, is granted or implied by this Agreement. The Receiving Party shall not include Confidential Information in any copyright registrations, patent applications, or similar registrations of ownership.
9. Data Protection
9.1 DEFINITIONS under the clause
The following terms shall have the following meanings:
“Representative” shall mean the Client’s affiliates and its and their respective officers, directors, employees, consultants, customers, business associates, clients and subcontractors;
“Data Protection Laws” means any applicable data protection or privacy laws or regulations. It shall include (i) the e-Privacy Directive 2002/58/EC as implemented by countries within the European Economic Area (“EEA”) and the UK; (ii) the General Data Protection Regulation 2016/679 (“GDPR”) as implemented by countries within the EEA and the UK, and/or (iii) other laws or regulations in that are similar, equivalent to or that are intended to or implement the laws or regulations that are identified in (i) and (ii) above;
“Supplier Persons” mean Leoforce, its affiliates and its and their respective officers, directors, employees, consultants, customers, business associates, clients and subcontractors;
“Relevant Personal Data” means any personal data that the Supplier discloses, provides or otherwise makes available to the Client and its Representatives (either directly or indirectly) under or in connection with this Agreement;
“Relevant Purposes” means the objectives and purposes for which the Supplier and the Client have entered into the Agreement.
The terms “controller”, “data subject”, “personal data”, “personal data breach”, “processor”, “processing”, “special categories of personal data” and “supervisory authorities” shall have the same meanings ascribed to them under Data Protection Laws.
9.2.1 Each party:
a. acknowledges that where it processes Relevant Personal Data under this Agreement it alone determines the purposes and means of such processing as a controller;
b. shall comply with its obligations relating to Relevant Personal Data that apply to it under Data Protection Laws (including applying appropriate technical and organizational security measures to prevent the occurrence of a personal data breach); and
c. shall perform its obligations under this Agreement at its own cost.
9.2.2 In the event of a dispute or claim brought by a data subject or a supervisory authority concerning the processing of Relevant Personal Data against either or both parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
9.3 Client OBLIGATIONS
9.3.1 The Client represents and warrants that it shall, and shall ensure that its Representatives:
a. process Relevant Personal Data under this Agreement, only in connection with the Relevant Purposes or to comply with applicable law;
b. have provided adequate notices to data subjects, and obtained valid consents from data subjects, in each case to the extent necessary for the Client and its Representatives to process Relevant Personal Data under this Agreement or in connection with the Relevant Purposes;
c. shall not, by act or omission, cause Supplier Persons to violate any Data Protection Laws, notices provided to, or any consents obtained from, data subjects, in each case, in connection with processing Relevant Personal Data under this Agreement, the Relevant Purposes or to comply with applicable law;
d. shall inform the Supplier of any personal data breach in relation to Relevant Personal Data irrespective of whether there is a requirement to notify any supervisory authority or data subject; and
e. shall provide such assistance to the Supplier as is reasonably required to enable the Supplier to comply with requests from data subjects in relation to the Relevant Personal Data, to exercise their rights under the Data Protection Laws within the time limits imposed by the Data Protection Laws.
9.4 The Client shall indemnify the Supplier against all claims and proceedings, damages, costs and expenses and against all third party liabilities, claims, causes of action, losses, costs, fees (including, without limitation, attorneys’ fees), expenses, damages and penalties arising out of or incurred in respect of any breach of this section.
10. TRANSFER OF PERSONAL DATA
The Standard Contractual Clauses in Schedule 1 will apply with respect to Personal Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for Personal Data. If the same is applicable it shall be attached as an addendum to the word order.
At its sole cost and expense, the Client agrees to indemnify, defend and hold harmless the Supplier and its affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from:
(i) Client’s violation of any applicable law;
(ii) Client’s breach of Clauses 2, 3, 5, 8 and 9;
(iii) any claim or action brought by a Job Board; and/or
(iv) any claim or action brought by Client’s end users.
12. LIMITATIONS OF LIABILITIES
12.1 In no event will either Party be liable to the other for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages.
12.2 The limitation set forth above shall not apply to the indemnity obligations under Clause 11.
13. TERM AND TERMINATION
13.1 Services provided under this Agreement shall be provided till the End Date. At the end of the term, all rights to access or use the Services, including the Arya Services, shall end.
13.2 This Agreement may be terminated by either party upon 30 days’ written notice to the other, if the other party breaches any term of the Agreement and fails to remedy the breach within 15 days of the written notification.
13.5 Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
If the parties’ respective commercial contacts cannot resolve any dispute within 5 days, it shall be escalated to the persons holding the next designation in each party. If they are unable to resolve the dispute within 5 days, it shall be escalated to the next level and so on until the procedure is exhausted. During this time neither party shall resort to litigation unless the other party is unwilling or unable to engage in the escalation process.
15. FORCE MAJEURE
The Supplier shall not be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Leoforce employees), Internet service provider failures or delays, or denial of service attacks, unplanned system down time, or any other cause beyond the Supplier’s reasonable control.
a. In relation to its subject-matter, the Agreement is the entire agreement between the parties and governs their relationship to the exclusion (to the extent permitted by law) of any other terms and conditions (other than those implied by law).
b. The Agreement is non-exclusive on both parties
c. No variation to the Agreement shall have effect unless agreed by both parties in writing.
d. No waiver by either party shall be effective unless made in writing.
e. Any reference to any legislation or legislative provision in the Agreement shall be construed as a reference to that legislation or provision as amended, re-enacted or extended at the relevant time.
f. Each of the parties acknowledges and agrees that it has not been induced to enter into the Agreement in reliance upon, and in connection with the Agreement does not have any remedy in respect of, any representation or other promise of any nature whatsoever other than as expressly set out in this Agreement.
g. Nothing in this Agreement shall operate to limit or exclude any liability for any fraudulent misrepresentation or for any other matter in respect of which liability cannot lawfully be limited or excluded.
h. No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.
i. The Agreement and any claims or disputes arising out of contractual and/or non-contractual obligations relating to or in connection with it shall be governed by and construed in accordance with the laws of the State of North Carolina. The parties submit to the exclusive jurisdiction of the State and Federal courts of North Carolina in relation to contractual and/or non-contractual obligations.
j. Any waiver under the Agreement must be in writing and signed by the waiving party. No delay, neglect or forbearance by either Party in enforcing any provision of the Agreement shall be deemed to be a waiver or in any way prejudice any rights of that Party.
k. Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
l. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
Clauses, 5, 7, 8, 9, 10, 11, 12, 13 and 16 shall survive the Agreement.