TalentFilter User & Service Agreement

PLEASE READ THIS LICENSE USER & SERVICE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING TALENTFILTER BY TALENTDRIVE.

If you are signing up for the Service on behalf of a company, you represent that you are duly authorized to represent the company and accept the terms and conditions of the Agreement on behalf of the company. By your acceptance, a binding contract is then formed between TalentDrive, LLC, (“TalentDrive”) and the company in accordance with the terms and conditions of this Agreement. You personally agree not to commit or encourage any violation of the Agreement between TalentDrive and the company.

If you are entering into this Agreement on behalf of your company, the terms "You" and “Your” in this Agreement means your company and all of its employees. If you are entering into this Agreement on your own behalf, or if you are not authorized to represent the company on whose behalf you purport to sign up, you agree that you are personally bound by this Agreement. In such cases, the terms "You" and “Your” in this Agreement mean you. TalentDrive reserves the right to modify the terms and conditions of this Agreement, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.

You may use  TalentFilter (www.TalentFilter.biz) or TalentDrive (www.TalentDrive.com), an on-line Software as a Service, to post positions and any other criteria important to your hiring needs to be used to search for, match, and contact candidates based on the content of the candidate’s resume and its match to a position for which you hiring. If You do not accept the Terms stated here, do not use TalentFilter or other services provided by TalentDrive. By using TalentDrive, You agree to be bound by these Terms, including the TalentDrive Privacy Statement.

Right to Access TalentFilter. Subject to the terms of this Agreement and any and all mutually executed ordering documents incorporating this Agreement and executed by You and TalentDrive (each, an “Statement of Work”), TalentDrive grants You a limited, non-transferable, non-exclusive right to access and use TalentDrive’s proprietary, Software-as-a-Service, TalentFilter (also described as “Software”) via a web browser and related documentation as described in an Statement of Work for the term set forth in an Statement of Work. TalentFilter is made available to You as a hosted service (“Service”). TalentDrive will host and retain physical control over the Software and make such computer programs and code available only through the Internet for access, use and operation through a Web-browser (e.g., Internet Explorer). No provision under this Agreement shall obligate TalentDrive to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code form.

License Restrictions. Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; modify, translate, or create derivative works based on the Software or authorize any third party to do so; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Because the TalentDrive Software is proprietary, You agree not to publish or disclose to third parties any evaluation of the Software without TalentDrive's prior written consent.

Ownership. You retain all right, title and interest to any and all information provided, inputted or uploaded to the Software by You, a candidate(s), or by TalentDrive on Your behalf. TalentDrive has no right, title or interest in any personally identifiable information related to Your candidates or employees. TalentDrive shall retain all right, title and interest in and to the Software, Services, the documentation for the Software, and all modifications and/or enhancements to the Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether You have provided input regarding such modifications and/or enhancements. You acknowledge that TalentDrive will retain all right, title and interest to transactional and performance data related to use of the Software which TalentDrive may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal Your identity, any of Your Confidential Information or any personally identifiable candidate information that belongs to You. Custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for You by TalentDrive (“Deliverables”) as required by a statement of work are hereby licensed, solely for Your internal use, for the term of this Agreement. TalentDrive retains ownership and may reuse any Deliverables, provided that such use does not reveal Your identity or Your Confidential Information.

Equipment. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Software. TalentDrive reserves the right to make changes to its policies, procedures and practices and to make changes to its hosting and technical infrastructure during the term of this Agreement as deemed reasonably necessary by TalentDrive to provide service to TalentDrive customers.

Prohibited Usage. You may not use the Service for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list. You agree not to transmit, or permit Your employees to transmit, through the Service any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. You agree to only use the Service for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm.

You are also prohibited from violating or attempting to violate the security of any TalentDrive Site, including without limitation, the following activities: (a) accessing data not intended for such User or logging into a server or account which the User is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to any TalentDrive Site, overloading, "flooding", "spamming", "mail bombing" or "crashing"; or (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting. Violations of system or network security may result in civil and/or criminal liability. TalentDrive will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.

In order to ensure a safe and effective experience for all of our customers, TalentDrive reserves the right to limit the amount of data (including resume views) that may be accessed by You in any given time period. These limits may be amended at TalentDrive’s sole discretion from time to time.

TalentDrive specifically prohibits any other use of our websites, and all Users agree not to do any of the following: (a) post positions and search for resumes using any TalentDrive Site for any competitor of TalentDrive or post positions and search for resumes using any other content that contains links to any site competitive with TalentDrive; (b) post positions and search for resumes using any content on any TalentDrive Site that contain hyperlinks, "hidden" keywords or keywords that are irrelevant to the job or are otherwise misleading; (c) post positions and search for resumes for modeling or talent or talent scouting positions on any TalentDrive Site; (d) use any TalentDrive websites for any purpose other than as an employer seeking employees, including but not limited to using the information found by using TalentDrive websites to sell or promote any products or services; (e) post or submit to any TalentDrive Site any incomplete, false or inaccurate biographical information or information which is not your own; (g) post on any TalentDrive Site any franchise, pyramid scheme, "club membership", distributorship or sales representative agency arrangement or other business opportunity which requires an up front or periodic payment, pays commissions only (except for postings that make clear that the available job pays commission only and clearly describes the product or service that the job seeker would be selling, in which case such postings are permissible), or requires recruitment of other members, sub-distributors or sub-agents; (h) send unsolicited mail or e-mail, make unsolicited phone calls or send unsolicited faxes regarding promotions and/or advertising of products or services to a User of any TalentDrive Site; (i) delete or revise any material posted by any other person or entity; (j) take any action that imposes an unreasonable or disproportionately large load on any TalentDrive Site's infrastructure; (k) decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of any TalentDrive Site; (m) aggregate, copy or duplicate in any manner any of the TalentDrive Content or information available from any TalentDrive Site, without express written consent from TalentDrive; or (n) frame or link to any TalentDrive Content or information available from any TalentDrive Site.

You agree to defend, indemnify and hold TalentDrive harmless against any claim or action that arises from Your use of the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.

Support. TalentDrive will provide support in accordance with TalentDrive’s then current support policy, which may be acquired from Your TalentDrive contact. Unless specifically agreed in writing, TalentDrive has no obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications, or other support.

TalentDrive Services. You may elect to purchase TalentDrive services associated with the implementation and optimization of TalentFilter. Such services shall be provided at a standard rate of $200/hr at the time of your request for services or will be set forth in a mutually executed statement of work that references and incorporates the terms of this Agreement (each an “SOW”). Fees for TalentDrive services will accrue on a time and materials basis and shall be paid in US dollars, unless otherwise indicated in the SOW. All fees for Consulting Services shall be invoiced monthly and paid net 30 days from receipt of invoice.

Billing Information. You agree to provide TalentDrive with accurate and complete billing and contact information, including Your legal name, company name, street address, e-mail address, and telephone number, and to update this information within 30 days of any change to it. If the contact information You provide is false or fraudulent, TalentDrive reserves the right to terminate Your access to the Service immediately without liability to You and without any obligation to return Your data.

Fees and Taxes. During the term of this Agreement, You agree to pay TalentDrive the fees associated with use of the TalentDrive Service and optional services reflected in a Statement of Work. Except as otherwise provided, fees are non-refundable, and the number of License Services purchased cannot be decreased during the relevant License Service term stated on the Statement of Work. All payments, fees and other charges payable by You to TalentDrive under this Agreement are exclusive of all applicable federal, state, local and foreign taxes, levies and assessments. You agree to bear and be responsible for the payment of all such taxes, levies and assessments imposed on You or TalentDrive arising out of this Agreement, excluding any tax based on TalentDrive’s net income. If You are required by any applicable law to deduct or withhold amounts otherwise payable to TalentDrive hereunder, You agree to pay the required amount to the relevant governmental authority and pay to TalentDrive, in addition to the payment to which TalentDrive is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by TalentDrive free and clear of all taxes equals the full amount TalentDrive would have received had no such deduction or withholding been required.

Fraudulent or Delinquent Payment. If you pay by fraudulent means, TalentDrive reserves the right to immediately and permanently terminate Your access to the Service, with no liability to You and no obligation to return Your data, and possibly seek criminal penalties. In the event that Your account is delinquent, TalentDrive reserves the right to suspend Your access to the Service, with no liability to You, until such amounts are paid in full. For credit card payments, an account will be considered delinquent if Your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid thirty (30) days following the billing cycle. You agree that TalentDrive may impose a charge to restore archived data from delinquent accounts. Unpaid charges (except those charges under reasonable and good faith dispute) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection

Adjustments. To dispute an invoice, You must contact TalentDrive in writing no later than thirty (30) days after the billing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. You agree to retain complete, clear and accurate records regarding Your use of the Software and agree to submit to a reasonable audit of this information upon reasonable notice by TalentDrive not more than once per calendar year.

Usage Limits. TalentDrive reserves the right to limit usage by Users which may be harmful to other Users or to the security and stability of the software and service provided by TalentDrive. One user shall by defined as one person logged into TalentFilter at one time. Sharing of log in information, including passwords is prohibited. A single user may be limited to a total of 6000 total searches per year or regular searches on 200 unique positions per year. These usage limits may be waived at TalentDrive’s sole discretion depending on the extent and nature of the business relationship with the User.

Publicity. You become subscriber of the Service, you agree that TalentDrive can disclose the fact that you are a paying customer. During the term of this Agreement, and unless otherwise set forth in an Statement of Work, You grant TalentDrive the right to reference You, along with Your logo, on the customer section of TalentDrive’s public web site until such time as Your use of the Service is discontinued.

Data Backup. TalentDrive shall use all reasonable efforts to protect Your data behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backup in a separate, fire-safe facility.

Passwords & Registration. You will choose or be given all applicable passwords to use in connection with the Service. You are responsible for maintaining the confidentiality of Your passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by You). Furthermore, You are responsible for any and all activities that occur under Your account (including, if applicable, the accounts of each user accessing the Service by means of an account established by You). Each password may be used by one individual named person only. Passwords may not be used concurrently or shared by more than one individual named person.

When You register with any TalentDrive Site, You will be asked to create an Account or other account and provide TalentDrive with certain information including, without limitation, a valid email address (your "Information"). Information you submit will be used in accordance with TalentDrive's Privacy Statement.

TalentDrive reserves the right to offer third party services and products to You based on the preferences that You identify in your registration and at any time thereafter; such offers may be made by TalentDrive or by third parties. Please see TalentDrive's Privacy Statement, the terms of which are incorporated herein by reference, for further details regarding your Information.

Without limiting any of the other disclaimers of warranty set forth in these Terms, TalentDrive does not provide or make any representation as to the quality or nature of any of the third party products or services purchased through TalentDrive or any other TalentDrive Site, or any other representation, warranty or guaranty. Any such undertaking, representation, warranty or guaranty would be furnished solely by the provider of such third party products or services, under the terms agreed to by the provider.

Ownership. We appreciate hearing from our Users and welcome your comments regarding our services and the TalentDrive Sites. Please be advised, however, that our policy does not permit us to accept or consider creative ideas, suggestions, inventions or materials other than those which we have specifically requested. While we do value your feedback on our services, please be specific in your comments regarding our services and do not submit creative ideas, inventions, suggestions, or materials. If, despite our request, You send us creative suggestions, ideas, drawings, concepts, inventions, or other information (collectively the "Submission"), the Submission shall be the property of TalentDrive. None of the Submission shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Submission. TalentDrive shall own exclusively all now known or later discovered rights to the Submission and shall be entitled to unrestricted use of the Submission for any purpose whatsoever, commercial or otherwise, without compensation to You or any other person.

You understand and acknowledge that you have no ownership rights in your TalentDrive Account, and that if you cancel your TalentDrive Account, all your account information from TalentDrive, including resumes, Profiles, cover letters, network contacts, saved jobs, questionnaires and email mailing lists, will be marked as deleted in TalentDrive's databases and will be removed from any public area of the TalentDrive Sites. Information may continue to be available for some period of time because of delays in propagating such deletion through TalentDrive’s web servers. In addition, third parties may retain cached copies of your Information.

Security. You shall notify TalentDrive immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by You) or any other breach of security. TalentDrive will not be liable for any loss or damage arising from Your failure to comply with these requirements.

Confidential Information. By reason of the relationship hereunder, each party will have access to certain information and materials concerning the other party’s technology business, plans, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Confidential Information of TalentDrive shall include, without limitation, information specifically designated as confidential, the features and functions of the Service that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to You, the commercial terms (including pricing) of this Agreement but not the mere existence of this Agreement, any Statement of Works, statements of work, schedules, addenda or amendments to this Agreement, performance and security test results (whether conducted by TalentDrive or You), and any other proprietary, financial or business information supplied to You by TalentDrive.

Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) information which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement.

Purchased Services. This Agreement shall last for the term set forth in an Statement of Work, and will renew automatically upon the same terms and conditions, including fees set forth in the Statement of Work, for one (1) year periods unless You or TalentDrive requests change or termination thirty (30) days prior to the expiration of the then-current Statement of Work.

Termination. You or TalentDrive may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of the 30-day 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. Additionally, any account which is suspended for more than thirty (30) days due to delinquent payments may be terminated, without notice to You and without any obligation on the part of TalentDrive to maintain, store or return any Your data or data residing in Your instance of the TalentDrive Service. Upon termination of this Agreement for any reason, (i) the license will terminate, and You, and any user accessing the Service by means of a company account, if applicable, will cease to use or have access to the TalentDrive Software; and (ii) except where such termination is due to delinquent or fraudulent payment, or false or fraudulent submission of contact information, You may request a copy of the most recent back-up of Your data. Fees may apply to retrieve data from back-ups. TalentDrive may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement. Delinquent accounts must be brought to good standing in order to receive data.

Survival. Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.

Warranty. TalentDrive represents, warrants, and covenants that the Software will perform substantially in accordance with any user instructions, manuals, or technical requirements documents that are generally provided by TalentDrive in connection with the Software. In the event of a breach of the foregoing warrant, TalentDrive’s sole obligations, and Your sole remedy, shall be, at TalentDrive’s option, to use commercially reasonable efforts to correct the Software or replace the Software free-of-charge.

Disclaimer. Except as provided in section 11,the service is provided "as is" without warranty of any kind, and TalentDrive disclaims all warranties, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement. Some states and/or jurisdictions do not allow limitations on implied warranties, so the above limitation may not apply to you. TalentDrive does not represent or warrant that the service will be uninterrupted or error-free. Any material downloaded or otherwise obtained through the use of the service is done at your risk and you will be solely responsible for any damage to your computer system or network, or loss of data that results from your use of the service.

Limitation of Liability. Each party’s total liability with respect to the subject matter of this agreement (including, but not limited to, liability arising out of contract, tort, strict liability, breach of warranty or otherwise), will be limited to the fees paid by you to TalentDrive for the service under this agreement in the 12 months prior to the act of injury that gave rise to the liability. Neither party shall be liable in any event for loss or inaccuracy of data, loss of profits or revenue, or indirect, special, incidental or consequential damages (including, without limitation, the cost of any substitute procurement), whether or not foreseeable and even if the party has been advised of the possibility of such damages. Certain states and/or jurisdictions do not allow the limitation of liability for incidental, consequential or certain other types of damages, so certain exclusions set forth above may not apply to you.

Infringement Indemnity. TalentDrive shall, at its expense, defend or at its option, settle any claim, action or allegation brought against You that the Software or any Deliverable infringes any valid copyright, patent, trade secret, or any other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that You give prompt written notice to TalentDrive of any such claim, action or allegation of infringement and give TalentDrive the authority to proceed as contemplated herein. TalentDrive will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and You may not settle or compromise such claim, action or allegation, except with prior written consent of TalentDrive. You shall assist and provide information as TalentDrive may reasonably require in settling or opposing such claims. In the event any infringement claim, action or allegation is brought or threatened, TalentDrive may, at its sole option and expense (i) procure for You the right to continue use of the Software or infringing part thereof; or (b) modify or amend the Software or infringing part thereof; or (c) replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or(d) terminate this Agreement and refund to You the prorated amount of the fees prepaid by Customer that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.

The foregoing obligations will not apply to the extent the infringement arises as a result of (a) any use of the Software in a manner other than as specified in this Agreement; (b) any use of the Software in combination with other products, equipment, devices, software, systems or data not supplied by TalentDrive to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the Software made by any party other than TalentDrive or TalentDrive’s authorized representative if such infringement would not have occurred without such modification or combination. This Section 13 above states the entire liability of TalentDrive with respect to infringement of any patent, copyright, trade secret or other intellectual property right.

Conflict of Terms. In the event of a conflict between this Agreement and any Statement of Work You have executed, the TalentDrive Statement of Work shall be deemed to govern with respect to the duration of the Agreement, fees, invoicing and payment terms, and Services purchased. In all other matters, in the event of a conflict between this Agreement and any Statement of Work, this Agreement will govern.