THIS FURSTPERSON MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into as of the date (the “Effective Date”) of the first Order Form entered into by and between the party referred to as “Customer” on any FurstPerson Order Form (“Customer”) and FurstPerson, Inc., an Illinois corporation (“FurstPerson”), with a place of business at 8430 W. Bryn Mawr Ave., Suite 250, Chicago, IL 60631 (FurstPerson and Customer are at times referred to individually as a “Party” and together as the “Parties”).
CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY SERVICES OF FURSTPERSON. BY (AS APPLICABLE) SIGNING A SERVICE ORDER, CLICKING “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. The terms and conditions of this Agreement shall govern the Services to be provided by FurstPerson under any Order Form submitted by Customer and accepted by FurstPerson, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement.
ARTICLE 1: SERVICE PROVIDED
1.01 Services. Subject to the terms and conditions more fully set forth within this Agreement, and in consideration for Customer’s performance in accordance with this Agreement, FurstPerson agrees to provide to Customer, those certain pre-employment screening and testing services (the “Services”) further described in a FurstPerson Order Form entered into between FurstPerson and Customer (each, an “Order Form”).
1.02 Nature of Services. Customer acknowledges that the Services provided consist of web-based applications accessible via Internet connections, which are owned by or licensed to FurstPerson.
1.03 Grant of License. For the Term of this Agreement, FurstPerson grants to Customer a personal, non-exclusive, non-transferable and limited license to access and use the Services in accordance with the terms of this Agreement. Said license shall expire immediately upon the expiration or termination of the then current Term, as defined herein below.
ARTICLE 2: TERMS OF PAYMENT
Customer shall pay all fees or charges as specified on each executed Order Form (“Fees”). All payment obligations are non-cancelable and all amounts paid are nonrefundable. FurstPerson charges and collects in advance for Platform Fees as defined on each Order Form. Unless otherwise set forth in the applicable Order Form, payment terms are net 30 days from the date of FurstPerson’s invoice, without offsets or deductions of any kind, and payment is due in US dollars. If payment under an applicable Order Form is to be made via credit card or electronic money transfer (i.e., ACH), such payment shall be chargeable upon invoice date. FurstPerson's Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on FurstPerson's income. If FurstPerson has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides FurstPerson with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer believes Customer’s bill is incorrect, Customer must contact FurstPerson in writing within 60 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide FurstPerson with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, FurstPerson reserves the right to terminate Customer’s access to the Services in addition to any other legal remedies. FurstPerson reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon the upcoming Renewal Service Term by providing Customer written notice at least 45 days prior to the end of the then current Service Term; in the event that Customer does not provide notice of termination to FurstPerson as described below, such Fee changes shall become effective at the commencement of the next Renewal Service Term. In the event Customer fails to make payments per payment terms as set forth in this Agreement or in any applicable Order Form, and legal enforcement by FurstPerson is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by FurstPerson.
ARTICLE 3: USE BY CUSTOMER
3.01 Acknowledgments. Customer acknowledges that various federal and state laws regulate employee selection methods, including testing, and require that selection methods measure various competencies, such as skills, abilities and knowledge, related to a particular job. It is Customer’s responsibility to accurately document the competencies of each job for which testing is sought, and to regularly monitor and evaluate all of its employee selection methods, including testing, to ensure that those methods do not adversely impact any identifiable group of persons for reasons other than qualifications for a particular job. Customer shall not use the Service in any manner that is unlawful. FurstPerson shall not participate in any manner with respect to any employment decision of Customer, including whether to employ or not to employ an applicant, or to promote, demote, transfer, or discharge any employee of Customer.
3.02 Use of Service. Customer’s use and/or access to the Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications; FurstPerson is not responsible for such delays, lack of connectivity, delivery failures or other damages resulting from such problems. Customer agrees to utilize and access the Services solely in strict compliance with the terms of this Agreement, and shall indemnify, defend and hold harmless FurstPerson, its affiliates, and their respective officers, directors, employees and agents from and against all liabilities, damages, losses, costs or expenses (including without limitation reasonable attorneys’ fees and expenses) arising out of or in connection with any claim, action or proceeding arising out of or relating to Customer’s use of the Services, except to the extent such claim, action or proceeding arises out of the negligence of FurstPerson.
ARTICLE 4: TERM AND TERMINATION
4.01 Term. The Initial Term of this Agreement shall begin on the Order Form Effective Date of the first Order Form and shall continue in effect until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form/s, or if this Agreement is terminated earlier, as provided herein. The term of an applicable Order Form will begin on the Effective Date of the applicable Order Form and shall continue for the initial term as specified therein (“Initial Service Term”). In the event that an Order Form contains Services added to an existing subscription, such added Services shall be billed on a pro-rated basis and will be coterminous with the Initial Service Term or applicable Renewal Service Term of such Order Form. The Initial Term shall automatically renew for additional twelve month renewal terms (each, a “Renewal Term”) unless either party gives the other party written notice of its desire to terminate at least 30 days prior to the end of the then current Initial Term or Renewal Term. The Initial Term and each Renewal Term, if any, shall from time-to-time collectively be referred to herein as the “Term.”
4.02 Termination. This Agreement shall expire upon the end of the Term. This Agreement may also be terminated by either Party if the other Party materially breaches any of the terms and conditions of this Agreement and fails to cure such default within 15 days after receipt of written notice from the non-breaching Party. Notwithstanding the foregoing, this Agreement and any or all Order Form(s), in the discretion of FurstPerson, may be terminated immediately by FurstPerson upon any violation by Customer of any provision of Article 5. In the event of termination of this Agreement, FurstPerson shall cease providing the Services to Customer and Customer shall immediately discontinue use of the Services, and uninstall any Software provided in connection with the provision of the Services. In the event of termination of this Agreement, FurstPerson shall have the right to deny Customer further access to the Services.
ARTICLE 5: FURSTPERSON PROPERTY; THIRD PARTY SOFTWARE
5.01 FurstPerson Intellectual Property. FurstPerson retains title to all intellectual property, trademarks, trade secrets, ideas and concepts, know-how, methods, techniques, templates, and computer software and/or code conceived, developed or reduced to practice by FurstPerson prior to or after its performance of the Services hereunder, including but not limited to modifications and derivative works thereto, and Customer will have no title or ownership interest therein. Customer agrees that an update or enhancement of the Services developed by FurstPerson, whether or not requested and/or paid for by Customer, and whether or not developed in conjunction with Customer’s employees or agents, shall be the exclusive property of FurstPerson. Customer further agrees that updated or enhanced versions or releases of the Services are not “works for hire” as defined under the Copyright Act of 1976, as amended, do not constitute a program different from the Service, and do not create any ownership rights by Customer in the Services except as otherwise agreed in writing by the Parties.
5.02 Ownership of Services, Object Code and Source Code. Customer acknowledges and agrees that this Agreement does not grant Customer any title or right of ownership in or to the Services or any component thereof, or to any associated materials or intellectual property, or in or to any enhancements, modifications or improvements. Customer shall not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of FurstPerson or its licensors in the Services, including, but not limited to attempting to determine or derive the design of the object code or source code for the Services, reverse assembling, reverse compiling, decoding or translating the Service, either by manual or automatic means. The confidentiality provisions of Article 6 of this Agreement will apply to any object code provided by FurstPerson, including any updates and enhancements.
ARTICLE 6: CONFIDENTIALITY
6.01 Confidential Information. Each Party acknowledges that during the Term of this Agreement, either Party may provide to the other certain information which is reasonably or customarily considered to be confidential, proprietary, or otherwise sensitive, in whatever form (e.g., without regard to the medium on which such information may be recorded, whether written visual, audio, graphic, computerized, electronic or otherwise) and whether or not it is specifically marked confidential (“Confidential Information”). Except as otherwise expressly provided for otherwise, no rights to any Confidential Information of a Party is granted to the other Party; moreover, each Party agrees to keep secret, hold in strict confidence and not use or disclose any Confidential Information of the other Party to any third party, without the prior written approval of the other Party, and each Party will use their best efforts to ensure that they restrict access to the other Party’s Confidential Information to employees who have a need to know such Confidential Information. “Confidential Information” shall not include any information that is: (a) generally known or available to the public; (b) already known at the time of receiving the Confidential Information, without any confidentiality obligations, through no wrongful act of the other Party; or (c) furnished by a third party with the right to do so. FurstPerson and Customer both acknowledge that the Confidential Information of each Party has great value and, if disclosed or used in violation of this Agreement, would cause the owner thereof immediate and irreparable injury.
6.02 Legal Process. If either Party is validly served with a subpoena, discovery request, or governmental order compelling production of the other’s Proprietary Information (“Legal Process”), the Party served shall immediately notify the other party. The other Party may, at its own expense, take any actions it deems necessary to preserve the confidentiality of its Proprietary Information, provided, however, that no Party shall have any obligation to contest any Legal Process.
6.03 Transmission of Data. FurstPerson agrees to utilize commercially reasonable efforts to maintain a secure method for the transmission of data over the Internet; however, FurstPerson does not guaranty that unauthorized third party access may not be gained notwithstanding FurstPerson’s efforts. Customer acknowledges the foregoing and assumes full and total responsibility for the use of the Services, and accesses and utilizes the Services at its own risk. Customer will be responsible for any access to the Services arising out of the Customer’s negligence, including, but not limited to, inadequate securing of passwords.
ARTICLE 7: LIMITATIONS OF LIABILITY
7.01 Mutual Waiver of Indirect and Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL CONSEQUENTIAL DAMAGES, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF FURSTPERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND CUSTOMER HEREBY EXPRESSLY WAIVES ALL SUCH CLAIMS.
7.02 Disclaimer of Warranty. FURSTPERSON MAKES NO EXPRESS, STATUTORY OR IMPLIED WARRANTY WITH RESPECT TO THE SERVICES TO BE SUPPLIED BY FURSTPERSON HEREUNDER. FURSTPERSON SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURSTPERSON DOES NOT WARRANT THE RESULTS OF ANY SERVICES.
7.03 Limitation of Damages. FURSTPERSON WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SERVICES. THE TOTAL LIABILITY OF FURSTPERSON, IF ANY, UNDER ANY ORDER FORM INCLUDING, BUT NO LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH, INDEMNIFICATION OR FAILURE OF WARRANTY OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY CUSTOMER UNDER THE INDIVIDUAL ORDER FORM UNDER WHICH SAID LIABILITY ARISES.
ARTICLE 8: GENERAL PROVISIONS
8.01 Entire Agreement. This Agreement, such schedules, appendices and other attachments as may be attached from time to time constitute the complete and exclusive understanding of the Parties with reference to the subject matter hereof, and supersede all prior sales proposals, negotiations, agreements and other representations or communications, whether oral or written. In the event of any conflict between the terms of the main body of this Agreement and any of the Schedules hereto, the terms of the main body of this Agreement shall govern. Termination of this Agreement will not affect the provisions of this Agreement relating to payment of amounts due, ownership, confidentiality and non-disclosure, indemnity, warranty and limitation of liability provisions of this Agreement, all of which will survive termination of this Agreement, regardless of the reason for termination.
8.02 Waiver. Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver shall be valid against any Party unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. No action, regardless of from, arising out of any claimed breach of this agreement or transactions under this agreement may be brought by either party more than one year after the cause of action has accrued.
8.03 Severability. In the event any one or more of the provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the parties will substitute a new enforceable provision of like economic and legal intent and effect.
8.04 Notices. All legal notices (e.g., claimed breach or termination of Agreement or Order Form/s) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified US mail to the other party at the address set forth in the applicable Order Form or as otherwise communicated to the other party in writing. All other notices from Customer to FurstPerson may be made by emailing info@FurstPerson.com, and FurstPerson may give notice by emailing Customer’s billing contact as specified on the order form. All notices shall be deemed to have been given upon receipt or, if earlier, two business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this section and identifying in such notice the date on which such change is effective.
8.05 Assignment. This Agreement may not be assigned in whole or in part by Customer without the prior written consent of FurstPerson.
8.06 Headings. Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a party of this Agreement for any other purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
8.07 Force Majeure. No party shall be in breach of this Agreement if the performance of its duties under this Agreement was prevented by a strike, war, Act of God or other similar event beyond the control of such party, and the affected party shall be given additional time to perform equal to the delay caused directly by the cause referenced in this paragraph.
8.08 Governing Law/Arbitration. This Agreement will be governed by the laws of the State of Illinois, without giving effect to rules governing conflict of law. Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association, with one single arbitrator, and with the place of arbitration in Chicago, Illinois; judgment on the arbitration award may be entered in any court of competent jurisdiction.
8.09 Amendment. This Agreement can be modified only in a written amendment signed by the Parties after an Order Form entered into; however, FurstPerson may modify the terms of this Agreement from time-to-time with said modified terms only effective for Order Forms entered into after said modifications have been posted and subsequently agreed to by Customer
8.10 No Waiver of Performance. Failure by either Party at any time to require performance by the other Party or to claim a breach of any provision of this Agreement will not be construed as a waiver of any right accruing under this Agreement, nor affect any subsequent breach, nor affect the effectiveness of this Agreement or any part hereof, nor prejudice either Party as regards to any subsequent action.
8.11 Execution. Each individual purporting to execute this Agreement on behalf of a corporation or other entity or organization warrants that he or she is authorized to enter into this Agreement on behalf of such entity or organization and that this Agreement is binding thereon.
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Version Date: July 8, 2015