Effective Date: February 23, 2022
Last Updated Date: February 23, 2022
We've updated our Master Subscription Agreement. For previous versions please see our archive here . Reach out to [email protected] if you have any questions about our updated business terms.
This Master Subscription Agreement (this "Agreement") is between OnboardIQ, Inc., a Delaware corporation ("Fountain") and Customer (as defined below).
BY ACCEPTING THIS AGREEMENT (EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) THE SERVICES, OR BY OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT), YOU: (1) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT ("CUSTOMER"); AND (2) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.
The parties agree as follows:
The following capitalized terms shall have the meanings set forth below. Any capitalized terms used but not defined in this Master Agreement will have the meaning provided in the applicable Order Form.
- "Applicable Law" means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, Implementation Services, or either party's performance under this Agreement, including applicable employment law, labor law, and laws regarding employee classification.
- "Applicant" means an individual who submits a job application to Customer using the Services.
- "Applicant Data" means any Personal Information other than Customer Data which is collected, inferred, created, stored, processed, transmitted, accessed, or used by Fountain in connection with an Applicant's use of the Services to submit a job application to Customer.
- "Approved Stage" means the default step in the hiring process which signifies that Customer has made a hiring decision and is identified as a stage type within the Services.
- "Confidential Information" means information that either party ("Discloser") discloses to the other party ("Recipient") under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. "Confidential Information" does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Fountain's Confidential Information includes the Documentation and non-public information regarding features, functionality, and performance of the Services or Implementation Services. Customer's Confidential Information includes the Customer Data.
- "Customer Data" means non-public data uploaded by Customer or its users to the Services. "Customer Data" does not include Usage Data.
- "Data Privacy Law" means all applicable laws and regulations relating to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information, including the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100, et seq.) and its implementing rules, procedures, exceptions, guidelines, and regulations ("CCPA").
- "Documentation" means Fountain-provided user documentation relating to the Services (e.g., user manuals and online help files).
- "Hire" means a unique Applicant who has been transitioned to an Approved Stage within the Services, unless otherwise specified on an Order Form. Former Hires who reapply and are rehired after at least one month from the initial hire are considered new Hires
- "Implementation Services" means any implementation, configuration, training, or consulting services specified in an Order Form or otherwise made available by Fountain to Customer.
- "Intellectual Property Rights" means all intellectual property any proprietary rights throughout the world (registered or unregistered), including patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights, together with all applications for any of the foregoing.
- "Order Form" means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between Customer and Fountain, including any addenda and supplements thereto.
- "Personal Information" has the meaning set forth under applicable Data Privacy Law and any implementing rules, procedures, exceptions, guidelines, and regulations.
- "Services" means Fountain's software-as-a-service platform that assists users in managing the job application and hiring process, including any related mobile applications; in each case, as specified in the applicable Order Form and as may be updated from time to time. For clarity, the "Services" do not include any Implementation Services, any professional services, any employment services, or any assistance to Customer regarding: (1) its selection process; (2) the terms of any employment between Customer and Applicants or services provided to Customer by Applicants; (3) granting or limiting data access by Customer's employees or agents; or (4) ensuring that Customer complies with all Applicable Law.
- "Usage Data" means data relating to Customer's or its users' use of the Services that is aggregated and/or deidentified.
Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration ("Arbitration") upon the written request of either party. The Arbitration will be administered under the American Arbitration Association's Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the "Rules"). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in San Francisco County, California. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party's Confidential Information. The arbitrator's award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
Fountain may publicly list Customer as a customer of Fountain and use Customer's trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Fountain customers, resellers, or investors.
15. Compliance with Applicable Law; Export.
Customer will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws. As defined in FAR section 2.101, the Services and Documentation are "commercial items" and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.